It started with New York County District Attorney sending Governor Andy Cuomo a letter in order to cover his butt. That’s where it was first called a “loophole.”

“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.”

This is kind of tricky to follow, as it conflates two separate things: first, if it’s involuntary, such as a person forcing another person to become drugged or intoxicated, then the intoxicated person is not responsible for her condition. The second is that being drunk is not the same as being incapacitated. One can be incapacitated by being drunk, or being drugged, but the key to the law is being incapacitated. Drunk, alone, doesn’t do it.

But Cy called it a “loophole,” which by definition means it’s a law working the way it was intended and someone doesn’t like the outcome. So Andy is going to fix it. Continue reading →

There were two apparent possibilities as the House Democrats decided to pursue Articles of Impeachment. Either they would muster sufficient evidence to convince enough of the American public to support impeachment that Republican senators would feel confident enough that they could find Trump guilty and vote to remove him and be re-elected, or the evidence would sufficiently damage Trump to impair his re-election.

It appears that neither has come to pass, if polls are any indication. Whether the evidence just didn’t do the trick, or people are so stuck in their positions, or they just don’t care anymore as they’re exhausted by the three years of ceaseless outrage, the numbers haven’t really moved.

It’s not that voting for Articles of Impeachment isn’t the right thing to do for no better reason than Trump’s conduct warrants impeachment and it’s an act of principle, even if in vain. But the calculus has now shifted: what happens after the articles are voted? Senate Majority Leader Mitch McConnell has announced that it’s dead in the Senate, and has rejected Minority Leader Chuck Schumer’s attempt to have John Bolton and Mick Mulvaney called as witnesses. Continue reading →

Head of house? It’s not that the name given to the House Master at residential colleges within elite Ivy League schools had anything to do with southern plantations or slaves, but the word. That word. It was the same word, even if it came from Oxford Dons rather than Jefferson Davis.

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

Those words were written by Lewis Carroll, which was a pseudonym for Charles Lutwidge Dodgson. Guess what his day job was? Exactly, an Oxford Don. Coincidence? Continue reading →

Based on the 92-page decision by District of Columbia Judge Emmett G. Sullivan, the motion by General Michael Flynn’s new lawyer, Sidney Powell, was a dumpster fire. Her Brady arguments were bizarre to the point of substantively laughable. No, there is no right to pre-charge Brady disclosure of exculpatory material. No, inculpatory material readily available to the defense isn’t Brady material.

This is rookie stuff, and the only question raised is why Sullivan took 92-pages to say what would ordinarily have been said in a one-page decision, if not a docket entry, had this not been General Flynn. Then again, it’s been suggested by an ex-DoJ friend and former clerk that this was the judge letting a clerk run wild on his computer, though in a case of this profile, one would expect the judge to not let this decision out into the wild without deciding it was what he wanted the nation to see.

But the easy Brady rulings aside, there was a section of the decision that suggests that Judge Sullivan really, and I mean really, did not like Powell’s handling of the case. Continue reading →

As Harry Seigal says, it’s the worst fear of every parent who sends their child off to college. Especially when that college is in the Big City.

There are more college students in New York than there are people in Baltimore. A newly arrived college student murdered by a stranger in a street crime is the worst fear of a million mothers and fathers across the country.

It’s not that New York isn’t a safe city, even though murders have climbed somewhat this year. Continue reading →

In her NY Post op-ed, Karol Markowicz isn’t right, at least not on the law. In New York, the only basis upon which bail could be lawfully imposed is to assure a defendant return to court, so her complaint that the new reforms will let dangerous criminals back onto the streets reflects a lack of understanding of the law as it exists.

On the other hand, few of us in the trenches believed that danger to the community didn’t factor into the judges’ bail decisions, even though the law was that it shouldn’t. There were ways to sneak it in, such as concluding that a person charged with an offense that carried a severe penalty was more inclined to abscond than someone who was charged with an offense carrying an insignificant punishment. No one flees to Madagascar to avoid probation.

The problem was that judges were imposing bail promiscuously. Some kid ADA asked for it, based on nothing special, and got it, or something like it, if the defense attorney argued well and the judge was in a good mood. As has been documented in a million tales of woe, some poor person, usually black or Hispanic, got pinched for some petty offense, an unofficial element of which was often pissing off a cop, and would be held on a thousand dollars bail. Continue reading →

Long before Trump was president, when he was just a third-rate TV game show host and a failed businessman, Orin Kerr wrote a prescient post about confirmation bias: Brilliant people agree with me.

It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive.

Today’s New York Times editorial has a one-word title: Continue reading →

The “firestorm” around Trump’s Executive Order to cover antisemitism under Title VI of the Civil Rights Act of 1964 was lit by the match of incompetent legal reporting at the New York Times. In advance of the release of the EO, it was characterized as redefining Judaism as a nationality. Title VI prohibits discrimination on the basis of “race, color and national origin.” It could have included religion. It didn’t.

The order will effectively interpret Judaism as a race or nationality, not just a religion, to prompt a federal law penalizing colleges and universities deemed to be shirking their responsibility to foster an open climate for minority students. In recent years, the Boycott, Divestment and Sanctions — or B.D.S. — movement against Israel has roiled some campuses, leaving some Jewish students feeling unwelcome or attacked. Continue reading →

Jazmine Headly did well. Her cause of action was solid, and there is no question that she suffered in the hands of New York City police, as it was the subject of a viral video. Just about a year ago, video of cops yanking her 1-year-old child from her arms as they arrested her for sitting on the floor poor evoked outrage, as well it should. After prosecution was declined, she sued.

The episode, in December 2018, touched a nerve, capturing what New Yorkers who rely on public benefits say is the uncaring and even hostile treatment they often get from city workers who themselves feel pressure to follow rules.

The charges against Ms. Headley were ultimately dropped. Her public benefits, which had been stripped, were restored, and Mayor Bill de Blasio apologized to her publicly. Nonetheless, saying she was standing up for herself and others in similar circumstances, she filed a federal lawsuit against the city.

Continue reading →

Not only is Roger Ailes dead, but there is no one who recognizes the name who is unaware of what he did to Gretchen Carlson. There’s a movie and series about it. It was in the funny papers. And then there’s the pervasive reporting of the settlement between Carlson and Fox over Ailes’ sexual harassment and antics against Carlson. Or to put this another way, everyone knows.

So why is there an op-ed by Carlson in the New York Times calling on Fox to give her “voice back”?

“Winning” my complaint with a settlement and a non-disclosure agreement meant I was, essentially, forced into silence. NDAs were originally designed to safeguard the sharing of proprietary corporate information (think the formula for Coca-Cola), not to protect predatory behavior. Although NDAs usually prohibit employers from disparaging victims, whisper campaigns often follow women for years. As I documented in my book “Be Fierce,” the vast majority of survivors never work in their chosen professions again. American industry has lost many talented women to harassment, while allowing predators to continue climbing the professional ladder (where they have the potential to victimize even more women).

Continue reading →