I am not proud of the fact that all or most of the empathy that I once had has been burned out of me. That is not true for a local criminal defense lawyer by the name of David Tarrell.[i]

So, here is the story.

I recently had a supervised release violation matter involving a woman I had sentenced to a long prison stretch plus five years of supervised release for a meth crime. The woman, now in her late 50s, had been a meth addict.

She was arrested at the hospital after surviving a car wreck. We picked her up because she failed to keep her experienced and patient probation officer (who had gone the extra mile) informed of her whereabout. Turns out, her house had burned down, she got hurt in a car wreck, and blah, blah, blah. David was appointed from our Criminal Justice Act panel to represent her. I think I had met David once before, but this case was the first time he had appeared before me. Continue reading →

Two things happened that day. Antonio Williams was shot to death by New York City police officers. New York City Police Officer Brian Mulkeen was shot to death by New York City police officers. Whether the death of Williams was avoidable is one question. Mulkeen, who was initially thought to have been shot by Williams who, according to the story, went for Mulkeen’s gun, was killed by friendly fire, his own fellow cops.

Williams’ death was one thing. Mulkeen’s death was another. It’s understandable that the unduly passionate might lack the intellectual capacity to distinguish between the two, their world being wrapped up in childish good and evil narratives. It’s also wrong and dangerously simplistic. Even worse, it reflects an inability to grasp cognitive dissonance, that their respect for the value of life is a pretense that only applies to those they favor. Continue reading →

Sheriff Roy, lost in the pages of Joe Hill’s book “NOS4A2,” heard a knock at his office door. A rather plain, unassuming young man stood at the door.

“Yes, son, come in.”

“Sheriff Roy Templeton?” asked the man, barely out of his teens.

“Yes, son. How can I help you?”

The teen pulled a stack of papers from a sheaf and said, “You’ve been served.” Having completed his assignment, the teen took off at a dead run for the Mud Lick Sheriff Department’s exit. Continue reading →

To no one’s surprise, the New York City Council voted to shutter the jail on Rikers Island and spend $8 billion on four new jails, one in each borough except Staten Island because a jail on a garbage landfill seemed redundant. The only surprise was that the original $11 billion was reduced to a mere $8, showing the Council’s thriftiness when the new jails theoretically open in 2026.

In New York time, that means the jails won’t be ready until sometime after President Chelsea Clinton’s administration at an adjusted cost of $92 billion, but I digress because I lack the sound focus of New York Times editorial board member Mara Gay.

On Thursday, the City Council voted to build four jails across the city, a critical step toward making the closing of Rikers a reality. The plan it approved will further shrink the capacity of the city’s jails from about 22,000 to around 3,800.

Continue reading →

While the ACLU has largely chosen to forsake its interest in constitutional rights that don’t align with the social justice feelings of its staff, and its donors, it hasn’t entirely lost interest in defending speech, as reflected by the Maine chapter’s support of a high school sophomore at Cape Elizabeth High School.

Aela Mansmann, a 15-year-old sophomore at Cape Elizabeth High School outside Portland, has been at odds with Cape Elizabeth Schools for a month after posting a note in a bathroom that said: “There’s a rapist in our school and you know who it is.” She and two other students who left similar notes were ordered suspended.

As it turns out, there may not be a rapist in her school, and she doesn’t know who it is, but that’s not what her sticky notes were about. Continue reading →

In a USA Today op-ed, former Republican turned confused former Republican, Tom Nichols, asks a snarky, yet very real question of the Democrats: Are you trying to lose?

When we watched CNN’s LGBTQ town hall for the Democratic candidates Thursday, we had very different reactions. This is the event, you remember, where former Rep. Beto O’Rourke of Texas said he’d punish religious institutions for refusing gay marriage, and where Sen. Kamala Harris of California started by informing us of her pronouns, and then host Chris Cuomo, after a mild and dopey joke, had to go on Twitter the next day and apologize for making light of it. This is where Sen. Elizabeth Warren of Massachusetts fielded a question about traditional marriage with a sneering, smug insinuation that the only people who would ask her about that are men who can’t find a woman.

You thought it was great. You saw a ringing defense of LGBTQ rights and a reaffirmation of what Democrats stand for.

I saw it and thought: Are these people insane? Are they trying to lose the election?

Continue reading →

No one, but no one, with the slightest grip on how criminal law happens doubted for a moment that there would be leakage. Some wouldn’t return to court. Some would commit another crime while a case was pending. And someone would commit a truly heinous crime after being released.

It’s not a fault in the system, but human nature. Despite the rosy characterizations of the poor and downtrodden as being victims of society’s ills, which may well be true, it doesn’t change the fact that people do bad things to other people. And so it comes as no surprise that a bad thing, a truly heinous thing, happened.

The Chinatown vagrant accused of fatally bludgeoning four other homeless men over a week ago was sprung from jail not once but twice by misguided nonprofits pushing bail reform, court documents show.

Continue reading →

There is a strong argument to be made for former Fort Worth police officer Aaron Dean, knowing that he was in a black neighborhood, and assuming that the silhouette he saw through the window inside Atatiana Jefferson’s home would be a black person, was a significant factor in his perception.

Maybe it meant that the life just wasn’t all that valuable to him. Maybe it meant that the person inside, likely being black, was likely more of a threat because too many cops still believe that black people are more likely to be criminals, more likely to be violent or more likely to pose a threat to a cop’s life. Outside of peeking into Dean’s head, there’s no way to know what synapses fired, in what order, due to race. Unfortunately, no post-hoc apologies or explanations will erase the fact that, yet again, a cop killed an indisputably innocent black person for her being in her home.

Don’t mention the gun she had within her home, which she may or may not have had in her hand. It’s completely irrelevant and immaterial, both because it was entirely lawful and proper for her to possess it, and it played no role in Dean’s actions, as he couldn’t have seen it under any circumstances. Continue reading →

At Slate, Cato’s Clark Neily calls for more judges with criminal defense experience, going so far as to call for a moratorium on judicial appointments from the ranks of prosecutors.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases. If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1. Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea. But neither is it wise to continue doing nothing while the imbalance runs the other way.

Given the climate these days, few social justice warriors will disagree, and some might even split their donations between the ACLU and Cato. Not that it will happen, because the idea isn’t simple, but simplistic, and there are a host of reasons why it will not do what simple minds believe it will do. Continue reading →

“I can’t help preferring champagne to ditch water — I doubt if the universe does.”[i]

After all these years, I still have my treasured dog-eared paperback copy of Saul K. Padover’s[ii] magnificent essays about those who helped make the American experiment so fascinating. In that wonderful book, Professor Padover first brought to my attention Oliver Wendell Holmes, Jr.[iii] I read it in the 1960s. I was captivated by his essay on Holmes.

For me, Holmes endeavored, in a brilliant way, to answer the question that had been nagging me then and still nags me now: What is the difference between politics and law?

Holmes, it seemed to me, had a rough but imperfect answer that was nevertheless honest, and quite a bit better than the platitudes we swallowed during the Warren Court of my youth and the cant we genuflect to nowadays. In Holmes’ own words, “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.”[iv] Or to put it another way, a judge’s preferences do not matter much. Nor does a judge’s sense of morality, commonly understood, have much to do with law except to the extent that one version of morality or the other is reflected in the legal reasoning which has gone before. He gave us legal realism in all its savage honesty.[v] Continue reading →