The history of the alcohol breathalyzer is a sordid affair. From the secret sauce of proprietary source codes to the magic number of blood alcohol concentration, it’s primarily a victory of Mothers Against Drunk Driving using anecdotes of tragic deaths of children to sway a nation to believe in the syllogism: something must be done. And so it was, vilifying drunk driving as inchoate murder, at best, and putting a lot of otherwise law-abiding people in the docks, if not prison, along with all the consequences for them and their families.

Aside from criminal defense lawyers, no one cried for the drunk drivers. Even if they weren’t really drunk drivers, but no one cared enough to parse that nuance. When it comes to criminal law and anecdotal tragedies, we love to cherry pick between those we favor and those we don’t, even if it changes from time to time as the winds of feelings blow. Continue reading →

The post is, after its intro, a dive down a rabbit hole that is guaranteed to kill brain cells, but it makes an interesting point up front.

We call them SJWs (social justice warriors) and fight against their attempt to take over pop culture and dictate public opinion. It proved to be an arduous task, mainly because so many of the general public are ‘passive regressives’: they buy into the pretense of SJWs to fight for social justice, so they blindly take their side even though they do not share their regressive values.

Putting aside the hyperbole, there is merit to the notion that many people who believe in equality, who believe in “justice,” tend to align themselves with progressives. After all, if you aren’t against equality, aren’t against “justice,” and surely are against Trump, what else can you possibly be? Continue reading →

Marches are fun and cool, and have been for generations, even though they accomplish no more than an opportunity to wear one’s finest pink knitted cap. But the New York Times lauds a unity march in New York against Anti-Semitism to show the “true spirit of New York.” Its use of the word “true” is a curious device, as reflected in these comments to the editorial.

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Not every mass murder, violent racist attack or even run-of-the-mill street crime can be attributed to mental illness, but a lot of them can. It’s hard to divine whether the crime is driven by mental illness or just that being driven by hatred and mental illness prevents that thing in one’s head that stops a person from acting upon one’s worst feelings. Either way, mental illness plays a significant role in crimes, some horrific and tragic and some banal, except to the victim.

But while we recognize this, it’s become almost impossible to do anything useful about it.

The Rev. Wendy Paige, the pastor for the man charged in the Monsey attack, noted that he had battled with mental illness for two decades and had been diagnosed with schizophrenia. “There hasn’t been anyone who has given a real solution to deal with a grown man who is dealing with schizophrenia, other than ‘Go home and call us if something happens.’” Failing to treat individuals with documented mental health issues is not an acceptable solution.

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In all the years I’ve practiced criminal law, no one has ever called me because they want to be on a jury. Sure, I’ve gotten tons of calls from people who got called for jury service and want out, to which I give my talk about the importance of jury duty and how it might be an unpleasant use of time, but it’s critical that good people be willing to serve. They suddenly have something better to do with their time than talk to me on the phone. Go figure.

California has proposed a new law to eliminate the prohibition of people with felony convictions from serving on a jury, as if they don’t already have enough problems.

The legislation will restore the right to serve on a jury for people convicted of felonies who are not serving time in prison, on parole or under supervision beginning Jan. 1. But it excludes people who register as a sex offender because of a felony conviction.

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Sure, I get my say, but only because this is my blog. And now is your chance to get yours. This is essentially an open thread, so knock yourself out, get it off your chest, beat me up, whatever is in there that’s been yearning to breathe free.

And let’s not get all smarmy or mushy, please. Yeah, yeah, happy new year everyone. There, it’s said. Move on. Continue reading →

The end of a year, and a decade, tends to be a time for reflection. There’s no logical reason for it. It’s just another day, the same as any other day, but there is a sentimental division in time that makes us feel that it’s ripe for reflection. I admit to succumbing to the sentiment, just this one time.

Unlike Judge Kopf, I won’t do a reverse listicle (not that there’s anything wrong with that). They’re not my thing. Nor will I tell you my personal feelings about things that made me laugh, happy, crazy or sad. We all have our own lives, experiences, and mine are no more interesting or valuable than yours.

But a point that Judge Kopf has made many times is to ask ourselves the question, as we get older, whether we’ve reached the point of irrelevance. Have younger voices taken over? Have we lost touch with what’s happening in the world, dwelling on the past while the new world is swirling around us? Does anybody care what we think, what we have to say, anymore? Continue reading →

The New York Post laments the actions of the new Queens District Attorney, Melinda Katz.

Incoming Queens DA Melinda Katz is vowing to clean house when she takes office in January, dismissing holdovers from Richard Brown’s near-30-year tenure. Take it as an ominous sign.

The “elections have consequences” slogan cuts both ways, and for Katz, who barely edged out queer Latina public defender Tiffany Cabán because her extremely progressive credentials didn’t have the identity brand behind it, there were doubts that she would be as good as progressives wanted or as bad as conservatives expected. Continue reading →

Pamela Coloff did the heavy lifting in a New York Times Magazine story. Now Jesse Wegman reminds us of it, as James Dailey’s stay of execution is about to run out, and Florida Governor Ron DeSantis has tired of hearing about it, so scheduling Dailey’s execution seems inevitable.

What Florida officials have so far refused to acknowledge . . . is that Mr. Dailey, 73, is almost certainly innocent.

Jesse gives two reasons for this conclusion. The first is that Dailey’s housemate, Jack Pearcy, was both convicted of the brutal 1985 murder of a teenager named Shelly Boggio, and asserted, twice, under oath, that he, and he alone, committed the murder. The second is that the only evidence against Dailey was the word of Paul Skalnik. Skalnik was the jailhouse snitch. Continue reading →

On “Abolish Today,” police.

We don’t consider the abolition of police a viable position to take because we believe they’re the only thing standing between upstanding citizens and the violence of the deranged. We’re afraid of being attacked on the street, of having our homes shot at, and being left without access to equally violent retribution. But does this mean we want police, or safety and security? Safety and security are ideas, ones that may never be fully achieved, and the police are an institution that have proved themselves capable of only providing the illusion of safety and security to a select few.

Mychal Denzel Smith argues in The Nation that the primary function of cops is to kill black men and protect the monied interest of white people. Indeed, after there was a shooting in his building, he tells of the police keeping a car outside. The “presence of the police scares me more than the kids selling drugs or the gunshots ever did.” If he was shot, he might feel differently, but he wasn’t. Continue reading →