My integrity muse, Appellate Squawk, smacked hard and it stung. Who defended Roy Moore from the absolutely, clearly, irrefutably established fact that he was pedophile? Who was tough enough to point out that Harvey Weinstein has never been convicted of a crime, that not a single disputed allegation against him has been proven? In the public hive mind, these are beyond dispute, and they may very well be the case, but so what?

We’re lawyers. More than just lawyers, criminal defense lawyers. We represent the people society despises. We fight for them. Or at least we used to.

One of my fundamental beefs with criminal justice reform advocates is that they constantly rely on the narrative of the sad, innocent, systemically-maligned defendant. As if the mean, guilty-as-sin defendant is unworthy of constitutional rights, our defense. This is the fallacy of those who use the sympathetic defendant as the mechanism of reform. In the process, we increase the vilification of the vast majority of defendants by contrast. Continue reading →

When the Second Circuit Court of Appeals dismissed with prejudice the indictment in United States v. Tigano for a seven-year delay in trying the case, during which Joseph Tigano was detained, there was applause but little commentary. The opinion, recounting his adjournments, read like a series of unfortunate events, each one of which could be explained or questioned, but happen in the ordinary course of a case.

It was the totality, that added up to seven years of delay for a guy who kept demanding a trial, that took the case over the top. To add insult to injury, it was a marijuana case, which was still very much illegal despite the societal amnesia of the wonderfully woke Obama years.

A vision of the case has now developed that provides an explanation for what happened to Tigano. Jeffrey Bellin at Slate explained. Continue reading →

Would a child lie? Are you really a pedophile apologist? These are things that would be said, and not pleasantly, to anyone who questioned the guilt of Virginia McMartin. But she was vilified, even though it was later recognized that she was completely innocent and the crimes of which she was accused never happened.

Cathy Young braved the mob as it stormed Woody Allen’s gate.

The 82-year-old actor and filmmaker has long been haunted by allegations that he molested his adopted daughter, Dylan Farrow, more than a quarter-century ago, when she was just seven years old. In 2014, Farrow wrote an open letter with the accusation, and yet the controversy quickly settled down, leaving Allen largely unscathed.

But now it’s 2018, and we live in a different world.

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Somebody on the twitters called me “hip” the other day.* Can confirm.

The view is different when you’re looking over your shoulder than ahead of you, but imagine your brilliant self plus experience. As they say, if I only knew then what I know now.

*Then again, another person on the twitters called me “a fucking asshole” to keep me humble.

Whether it’s chalked up to Schadenfreude or hypocrisy doesn’t really matter. Once the camel* sticks his nose under the tent, he’s gonna see whatever happens within. And that means any #MeToo groper could end up exposed. For California Assemblywoman Cristina Garcia, this is particularly ugly given her stance against men.

In December, when Time magazine announced that “Silence Breakers” who spoke out against sexual harassment were its Persons of the Year, Garcia’s face was prominently included in the art accompanying the cover story.

Garcia was out front in the fight for California’s Legislative Whistleblower Protection Act, and wasn’t the least bit shy about letting everyone know that “she persists.” Maybe too much. Continue reading →

When the Appellate Division, Second Department, referred the Article 70 proceeding to Dutchess County Supreme Court Justice Maria Rosa, they made an excellent choice. Justice Rosa had already proven herself an exceptionally bold and tough judge, willing to confront systemic problems in the system head on. And bail? One of the worst.

The NYCLU argued that failure of judges setting bail to consider a defendant’s ability to pay was a violation of the Equal Protection and Due Process Clauses. It’s not that judges were prohibited from considering ability to pay, but they weren’t required to do so by statute. And most didn’t.

While it is clear that the legislature must act, it is undisputed that the earliest such action could occur would be 2019. In the interim, thousands of individuals will be in a similar situation as the petitioner was at his arraignment. It is clear to this court that a lack of consideration of a defendant’s ability to pay the bail being set at an arraignment is a violation of the equal protection and due process clause of the Fourteenth Amendment and of the New York State Constitution: Clearly, $5000.00 bail to someone earning $10,000.00 per year, like the petitioner, without significant assets, is much more of an impediment to freedom than $5000.00 bail would be to a defendant earning substantially more and/or with significant assets. Setting that sum as to both such individuals would not be equal treatment.

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Fans of the Philadelphia Eagles are, by definition, animals. This is not subject to dispute, as I am a New York Giants fan and that’s that.

Recognizing this sad fact, however, does not explain an editorial in the Penn State Daily Collegian. Continue reading →

When Sonia Sotomayor was nominated to the Supreme Court of the United States, she was given the sobriquet of the Wise Latina.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Why different, characterized as “richness,” would be synonymous as “better” was that her core value was her “empathy.” This was a curious view from below, as Justice Sotomayor was hardly too concerned with empathy for the downtrodden on the Second Circuit. But hey, she now had to sell herself, and this was her new, improved slogan. Continue reading →

There must be a gap in their focus now that the ACLU has decided that some constitutional rights are no longer to their liking, such as free speech when it involves people who should stay in Skokie. To fill that gap, they’ve come up with a new civil right, even if it can’t be found anywhere in your pocket Constitution.

If the recent wave of sexual harassment and sexual assault revelations has taught us anything, it’s that we have not done enough to end sexual harassment and gender-based violence.

The choice of the word “revelations” is a curious one. Accusations might be more accurate, but then there would be some difficulty connecting it to the second half of the sentence, where truth is assumed and something, therefore, must be done. Continue reading →

President Donald J. Trump posed the question while speaking to Ohio factory workers.

President Trump on Monday accused Democrats who did not clap during his State of the Union address of being un-American and even treasonous. His remarks came in a rambling, discursive speech at a factory in Ohio, during which he celebrated his revival of the American economy as the stock market plummeted by more than 1,000 points.

This may not be the most objectively factual description of what was said, as he was referring to the refusal of Democrats to applaud his entry into the congressional chamber rather than clapping “during” his State of the Union speech. No doubt it hurt his feelings to be the only president to have people turn their back on him as he walked down the aisle. Continue reading →