This isn’t a condemnation of anyone by race or gender, but a condemnation of how the narrative of identity politics is used to manipulate the emotions of the unduly passionate to achieve outrage when they’re supposed to, and yawns when they’re not. Because this, in another world, would rightfully evoke outrage.

“F—ing Hispanics! Go back to your country!” the [person] seethed as she attacked the 54-year-old victim on a Manhattan-bound No. 2 train at about 4:15 a.m. Tuesday, cops said. “You come here to take our jobs!” she railed.

The person was female. The person was black. The person was, it’s alleged, drunk and very, very angry. Continue reading →

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article I, Section 3, Clauses 6 and 7 of the Constitution

I have a special interest, albeit purely academic,[i] in the trial of the impeachment of President Trump.[ii] Most particularly, I will be fascinated to see whether the Senators argue about the burden of proof. And, if they do, I will be fascinated in the outcome. In this post, I make a prediction.[iii] So, if you are interested, read on. Continue reading →

I was maybe five years out of law school when I first became a small claims court arbitrator in Manhattan. It was one of my pro bono activities, once or twice a month, usually Thursday evenings, going over to 111 Centre Street, using the judges’ elevator in the back, and hanging out with my buds, the small claims court officers and Joe Gebbia, the chief clerk, with whom I would usually get dinner later in Chinatown. Joe was always kind enough to let me pay. It was his superpower.

The jurisdiction of small claims court at the time was $3,000. so that was the most an arbitrator could award. We had no authority to do anything beyond issuing a monetary award, and the legal basis upon which we ruled was, by statute, “substantial justice.” Beyond that, we were largely left to our own devices. Continue reading →

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 →