Tuesday Talk*: Bragg Can, But Should He?

The Michelle Dauber of prosecutorial commentators, Andrew Weissmann, has come to New York County District Attorney Alvin Bragg’s defense.

Prosecutors are trained to consider whether a case can be brought — in other words, is there proof beyond a reasonable doubt to support a conviction? They also consider whether a case should be brought — principally, is the crime one that is typically charged by the office in like circumstances? Put another way: Is bringing the charge consistent with the rule of law that requires treating likes alike?

Alvin Bragg, the Manhattan district attorney, would be well within his discretion in determining that the answer to those questions is yes and therefore supports charging Mr. Trump in connection with any crimes arising from an effort to keep Stormy Daniels from disclosing an alleged affair to the electorate before the 2016 election.

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Is The NY Prosecution of Trump Time Barred? (Update)

The acts upon which the putative indictment of former president Donald Trump were completed in 2017. It’s now 2023. Math challenges aside, that comes out to be about six years ago. So how is it possible that six-year-old alleged conduct can be prosecuted when the statute of limitations in New York for most felonies is five years, and two years for misdemeanors?

The Manhattan district attorney, Alvin L. Bragg, has signaled he is preparing to seek felony charges against Mr. Trump; Mr. Bragg is expected to accuse him of concealing a $130,000 hush-money payment that Michael D. Cohen, Mr. Trump’s lawyer and fixer, made to Ms. Daniels on the eve of the 2016 presidential election. Continue reading

Free Speech Meets Legal Advice

There is little difficulty distinguishing people who hold themselves out to provide legal advice for a fee or appearing before a judge in court as “practicing” law. But what about your aunt or the neighbor in the back telling you what you should do about a lawsuit? Surely, they’re not committing a felony, but just kibitzing, as folks are wont to do. Between the two, however, is a no man’s (person’s?) land consisting of people to whom one turns for advice when confronted with problems who neither sell their services nor passed the bar.

Are they criminals? Should they be? Continue reading

Otte: A $10M Bandage For Pennsylvania’s Poor

Ed. Note: This is a guest post by Pittsburgh criminal defense lawyers, Joe Otte, former public defender until he went rogue.

Before the chatbots replace online human opinions, I’d like to say my piece about indigent defense funding in the Commonwealth of Pennsylvania. Here in the Commonwealth, we have no state-level funding for indigent defense.* We rely upon counties to fund public defenders and court-appointed attorneys in criminal cases. It’s a moronic system that has thankfully gone by the wayside in 49 states. Continue reading

Should “Youthful Offender” Treatment Impair Self-Defense?

Under New York Criminal Procedure Law § 720.35, minor defendants given youthful offender treatment may not have their convictions used against them, thus providing an opportunity for them to change their evil ways and have a second chance (or fourth) at turning their lives around. This is a wonderful thing, although it held little promise for Dylan Pitt when he was stabbed by Santino Guerra on St. Patrick’s Day, 2016. Continue reading

Seaton: The SJ Guide to St. Paddy’s Day 2023

Happy Saint Paddy’s Day, dear readers! This year, the holiday where everyone is Irish falls at the tail end of Spring Break, so expect many dumb college kids puking in the streets of every destination town you can find. Worry not, you can still celebrate Saint Paddy’s in peaceful merriment.

We celebrate Saint Paddy’s day around these parts pretty much every day, depending on the mood, but today is a great day to reconnect with half my roots. My family’s half Scottish, half Irish, so we get all of the good traits from both lands without the desire to wear kilts.*

Not that there’s anything wrong with that. Continue reading

Defining “Woke” (Update)

Bethany Mandel, who with Karol Markowicz, wrote a book “Stolen Youth,” and so she went on tour to promote it, including an interview with Briahna Joy Gray and Robby Soave. It didn’t go well.

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How Do You Solve A Problem Like Amy Wax?

It would be impressive enough that Amy Wax is a law professor at the University of Pennsylvania. But her background is even more impressive.

Raised in an observant, conservative Jewish family, she received a bachelor’s degree from Yale and a medical degree from Harvard.

On a podcast, she said she realized medicine was not for her, and in 1987, received a law degree from Columbia University. In the late 1980s and early 1990s, as an assistant to the U.S. solicitor general, she argued 15 cases before the Supreme Court. And after seven years at the University of Virginia, she joined Penn with tenure in 2001.

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Tuesday Talk*: Beyond Stanford, Are Law Schools Lost? (Update)

No doubt there’s a reason why law reviews exist as a place for legal academics to publish their scholarly writings with the acceptance, approval and oversight of student editors. If I cared enough, I could research it and find out, but I don’t. Rather, it’s sufficient for now that the system involves the least knowledgeable, least capable and least attuned to the realities of law making decisions for a profession of which they’ve yet to earn a place.

Most things are published that they may be read. Law review articles are published that they may be written. – J. Posner

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DoJ Opposes Ending “Acquitted Conduct Sentencing”

It’s one of those things that people never expected and can’t imagine how it could be possible, constitutional. It’s not just that it offends our sense of fairness, but it offends the legitimacy of the process. Why have a trial if the outcome of not guilty on one offense doesn’t mean that the defendant beat the rap. How could there be such a thing as “acquitted conduct sentencing”?

If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence. Continue reading