It’s hard to argue against the notion that prosecutors’ use of peremptory challenges just to get blacks off the jury is racist, wrong and offensive. But the problem with Batson was that its rationale relied on a right that the Constitution doesn’t provide and is in direct conflict with a right that it does. There is no constitutional right to be on a jury. The defendant in a criminal case has a right to trial by jury. In other words, the right belongs to the defendant, not the putative jurors struck because of their race.

Most of the time, these two interests align, so it’s not a problem. A black defendant will want black jurors, presuming a shared experience with police and less inclined to be racially antagonistic to the defendant. Whether that ends up being the case is another matter, but that’s the theory. The problem with Batson, however, is that it couldn’t be grounded in the right of a defendant to a jury that “looks like him,” since that meant if the defendant was white, or Hispanic, or Icelandic, the defense could assert a demand for jurors of whatever identity was a issue. That certainly wasn’t the goal. Continue reading →

If you’re bored with the shenanigans cum idiocy that’s become the hallmark of Yale Law School, rest assured that this may be about YLS on its surface, but reflects the nature of what’s boiling up from below the surface of the legal academy. And in case the significance of this is still unclear, this is not only the lesson being taught to the future lawyers of America, but to the future holders of high office who will be positioned to make decisions that will affect a nation and its citizens.

Heather Gerken is the dean of Yale Law School, and is playing “the buck stops here” as if she’s being bold and responsible for the fiasco of falsely calling a student’s email invitation to a party, the now-infamous “Trap House” email, a “racist” message which her “muscle,” Associate Dean Ellen Cosgrove and Diversity Director Yaseen Eldik condemned “in the strongest possible terms.” In their efforts to force the student who sent the email to apologize, they threatened to ruin his future career because they could. Continue reading →

Yesterday, there was outrage because Kyle Rittenhouse picked alternate juror names from the wheel and a US Marshal purportedly overheard two jurors refusing to acquit out of fear they would be doxxed after the trial. The former was the judge’s standard practice, of no moment. The latter was obvious nonsense, as there are no US Marshals in Wisconsin courtrooms. But that didn’t stop those who sought reasons to be outraged from being outraged.

Occasionally, a trial happens that captures the imagination of a nation. The Rittenhouse trial is such a case, and it reveals what lawyers, at least those honest enough with themselves and others not to feed into the crazy in the hope of getting a primetime slot on right or left TV, fear. The idea of making a trial publicly available in real time was supposed to enlighten, illuminate, calm those prone to hysteria, by letting the public see with their own eyes how the sausage is made. Continue reading →

Former EDNY Judge John Gleeson was an enigma. A hard-nosed federal prosecutor who did the undoable, took down the Teflon Don, he was rewarded by a bench and robe. But then, Judge Gleeson became one of the foremost critics of the United States Sentencing Guidelines, a voice of compassion and understanding toward defendants in a system that was as callous as society demanded it be. What happened?

In a letter to the editor, Judge Gleeson explains how the tough federal prosecutor became the voice of reason. Continue reading →

Still embroiled in the Trap House idiocy, chronicled as it got worse and word by David Lat, the last thing Yale Law School needed was the re-emergence of another scandal of “equity.”  After all, this is YLS, the other school where leaders of the future of America are bought and sold. But then, critical race theory is, at its roots, a legal theory that can only be truly appreciated by the very smartest among us, so it makes complete sense that YLS would take the lead in taking a swan dive into the cesspool.

Two unnamed Yale Law School students filed a complaint Monday against three Law School administrators and the University for allegedly “blackball[ing]” them from job opportunities after they refused to endorse a statement in the ongoing investigation against law professor Amy Chua. Continue reading →

More than a decade ago, the phrase “work/life balance” was all the rage, people seeking the time and opportunity to spend with family and friends rather than in the office (or the courtroom, as the case may be). It was a quaint notion, that one could earn that sweet paycheck and just not show up when junior had a baseball game, and the boss would be cool with it because nobody says on their death bed they didn’t spend enough time in the office.

Are we over that now?.

Since the start of the pandemic, Americans have been talking seriously with friends, family, and themselves about the shortcomings of their modern-day work lives. Millions of people have joined the “Great Resignation,” and many, especially the college-educated, have vowed to follow their passion and embark on a different career.

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What happened in the video was shocking. In itself, reason to believe that for all the protests, all the criticism, all the challenges of the public to the manner in which police dealt with people, cop culture really hadn’t changed.

Esqueda told USA TODAY that he’s become a pariah among his coworkers since July 2020, when he shared with a television reporter footage from January of that year showing how officers treated a handcuffed Black man in medical distress. Officers slapped Eric Lurry, restricted his airway and shoved a baton in his mouth hours before his death.

This starts with what was done to Lurry. Continue reading →

It’s bad enough that there was nothing legally controversial about the cops making a pretext stop of a guy whom they considered a “person of interest” in a recent shooting, But the Whren Court said anybody in a car was fair game, and so Dubuque police stopped a car on Christmas Day 2019 to speak with a passenger, Earnest Hunt Jr. Don’t let the fact that the “person of interest” was a passenger cause you to furrow your brow, as he, too, fell within the officers’ sphere of safety under Mimms. And it spiraled down from there.

An officer observed Hunt seeming very nervous and feared he might have a gun, so the officer placed him in handcuffs and patted him down over his clothing. Continue reading →

As day follows night, pundits masquerading as news reporters hook up with hitherto unknown law profs whose passionate theories mattered to no one whenever a high-profile case doesn’t go the way they believe it should. This time, there are two happening simultaneously, and if two outliers don’t prove a pervasive problem in need of fixing, what does?

The Kyle Rittenhouse and Ahmaud Arbery cases raise intriguing legal questions about people who take the law into their own hands and then claim self-defense when someone dies.

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I’ve seen the argument. I’ve made the argument. When it’s applied to a specific set of facts, a particular individual, it’s a damn fine argument. But as a general proposition, it doesn’t work.

Growing up on the South Side of Chicago, I’ve seen my classmates carry firearms to keep themselves and their families safe from harm. And I later represented some of those same individuals in court—being prosecuted for firearm possession—when I started work as a public defender.

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