Fair point. I agree that the legislature can define the crimes however they want within constitutional limits, and I'm not really questioning the legality of using the New York election misdemeanor as a predicate to bump up the business records violations. I'm questioning rather the wisdom of this exercise of prosecutorial discretion.
Fair point. I agree that the legislature can define the crimes however they want within constitutional limits, and I'm not really questioning the legality of using the New York election misdemeanor as a predicate to bump up the business records violations. I'm questioning rather the wisdom of this exercise of prosecutorial discretion.
Along those lines, I was really surprised on a gut level to learn yesterday that the New York election law -- the thing that makes the business records violations much worse, the thing that some are using to argue for prison time because it's so serious -- was itself a mere misdemeanor, and I was likewise surprised to learn that it's hardly ever been prosecuted.
To your point, though, suppose you lied on two related business records but there is no other crime involved. Two misdemeanors, right? But, hey, why not say that the first was committed with an intent to cover up the second and the second was committed with an intent to cover up the first (or they were both committed with an intent to commit yet a third)? Presto, two felonies. Neat! That's what I mean by "alchemy." It would strike me as a questionable practice, even if it were within the letter of the law.
I'd be curious to know whether any prior New York first degree business records prosecutions relied for their predicate crime exclusively on a mere misdemeanor. My hunch is probably not, though I could certainly be wrong about that. If I'm not wrong, I think that fact would be highly relevant not so much in a legal analysis as an analysis of whether, as I said, the prosecution amounted to a stretch.
Re hate crime enhancements, I'm actually one of those annoying people who have issues with them. It seems like we're punishing protected expression. Suppose a law says that trespassing is a misdemeanor but it's a felony if it's done for the purpose of voicing anti-American sentiments. Thus the college kid who pitches a tent on the quad just for fun commits a misdemeanor but one who pitches a tent as part of a protest with a sign saying "Death to America" commits a felony. That strikes me as quite similar and similarly troublesome.
I realize of course that hate crimes can have a terroristic effect on victims that makes them worse, more hurtful to and more scary for victims. But I'm not sure the law should treat them differently from an assault based on one's occupation or political affiliation, say, or one based on what you're wearing or your tattoos or your hair, say. The more I think about it, the more I keep coming back to the fact that I really don't like violence for any reason unless it has some legal justification or mitigation (like a heinous heat-of-the-moment provocation).
Re Baretta, I have zero sympathy with Trump, to be clear. My concern is that, just as I've thought all along that Trump should be treated no better than any defendant, it's equally imperative that he be treated no worse (no matter what he and his braying army of nincompoops say). We both know that prosecutors don't charge everyone with every crime they possibly could. They have to make policy decisions about how to use the often quite expansive tools at their disposal to ensure over time consistency and fairness in application. Both Vance and Bragg for a time felt that this case didn't merit going forward on that terrain, and I'm starting to agree with that instinct. I don't want his apologists to be right. I worry a lot when our side proves them even a little right.
Bravo! Petit larceny, a misdemeanor, serves as the basis of a felony business records violation where the defendant "returned" merchandise they hadn't purchased for a store credit then used to buy other stuff. The fraudulent business record charge is premised on causing the store to enter a false credit. Very cute. The case cites to two other cases where defendants did similar things.
Let me ask you a question, though. Do you like this use of the business records law? I mean, in a cosmic sense, how is this conduct worse than just shoplifting that would involve no business record? What about the business record aspect of the defendants' conduct, in your mind, makes this a significantly more serious crime than just stealing stuff? My vote would be to punish these people the same as shoplifters of items of similar value.
But maybe your point is, hey, what's good enough for Ramirez is certainly good enough for Trump, and I'm with you there.
Do I like this use of the business records law? To be honest I would have to say no. It’s similar to the Illinois rule that allows what would otherwise be retail theft misdemeanants to be convicted of the felony of burglary if the State can prove they had an intent to steal at the time they entered the store. The theory being that the entry into the building was unauthorized because a merchant’s invitation to enter, which is extended to the public at large, does not apply to people who have an intent to steal. See below.
What makes the Trump New York prosecution seem completely fair and reasonable to me is the fact that Michael Cohen got a three-year prison sentence for his involvement in the Stormy Daniels affair, and, at least until July 11, 2024, Trump, the person for whose benefit the whole cover-up was engineered, will have suffered no consequences at all.
Yeah, but he pled on a federal charge never brought against Trump. Maybe it's a touch of cosmic justice, but I'm not sure I buy that a state prosecutor should move in ways they ordinarily wouldn't to make up for the feds not moving on it. Maybe.
I really like the angle, though, that criminal defendants like retail thieves routinely face dubious, stretchy legal shenanigans like the business record thing and the not-a-burglary theory you mention (which strikes me as a joke, frankly) -- the sort of thing I'm complaining about -- and what's sauce for the goose, etc. I would prefer a world with no shenanigans.
There is, I think, a significant legal difference between a real estate broker refusing to show a home to someone because they are black, and refusing to show a home to someone because of a previous unpleasant interaction with them. Do you think the law should treat both of those incidents the same?
Bravo again. I think it's probably super hard to distinguish anti-discrimination law, which I fully support, from hate-motivated enhancements. You're effectively punishing the person more for discriminating in victim selection. I don't love it. I want to say something like, in the real estate case or any public accommodation case, the crime *is* the discrimination -- the denial of service or whatever -- and not the thoughts or feelings of the discriminator, except as necessary to prove that the discrimination took place, but that seems perilously close to a distinction without a difference, so big point to you on that one. Makes me want to read up more on the issue which I think has crossed Eric's desk a few times over the years.
Fair point. I agree that the legislature can define the crimes however they want within constitutional limits, and I'm not really questioning the legality of using the New York election misdemeanor as a predicate to bump up the business records violations. I'm questioning rather the wisdom of this exercise of prosecutorial discretion.
Along those lines, I was really surprised on a gut level to learn yesterday that the New York election law -- the thing that makes the business records violations much worse, the thing that some are using to argue for prison time because it's so serious -- was itself a mere misdemeanor, and I was likewise surprised to learn that it's hardly ever been prosecuted.
To your point, though, suppose you lied on two related business records but there is no other crime involved. Two misdemeanors, right? But, hey, why not say that the first was committed with an intent to cover up the second and the second was committed with an intent to cover up the first (or they were both committed with an intent to commit yet a third)? Presto, two felonies. Neat! That's what I mean by "alchemy." It would strike me as a questionable practice, even if it were within the letter of the law.
I'd be curious to know whether any prior New York first degree business records prosecutions relied for their predicate crime exclusively on a mere misdemeanor. My hunch is probably not, though I could certainly be wrong about that. If I'm not wrong, I think that fact would be highly relevant not so much in a legal analysis as an analysis of whether, as I said, the prosecution amounted to a stretch.
Re hate crime enhancements, I'm actually one of those annoying people who have issues with them. It seems like we're punishing protected expression. Suppose a law says that trespassing is a misdemeanor but it's a felony if it's done for the purpose of voicing anti-American sentiments. Thus the college kid who pitches a tent on the quad just for fun commits a misdemeanor but one who pitches a tent as part of a protest with a sign saying "Death to America" commits a felony. That strikes me as quite similar and similarly troublesome.
I realize of course that hate crimes can have a terroristic effect on victims that makes them worse, more hurtful to and more scary for victims. But I'm not sure the law should treat them differently from an assault based on one's occupation or political affiliation, say, or one based on what you're wearing or your tattoos or your hair, say. The more I think about it, the more I keep coming back to the fact that I really don't like violence for any reason unless it has some legal justification or mitigation (like a heinous heat-of-the-moment provocation).
Re Baretta, I have zero sympathy with Trump, to be clear. My concern is that, just as I've thought all along that Trump should be treated no better than any defendant, it's equally imperative that he be treated no worse (no matter what he and his braying army of nincompoops say). We both know that prosecutors don't charge everyone with every crime they possibly could. They have to make policy decisions about how to use the often quite expansive tools at their disposal to ensure over time consistency and fairness in application. Both Vance and Bragg for a time felt that this case didn't merit going forward on that terrain, and I'm starting to agree with that instinct. I don't want his apologists to be right. I worry a lot when our side proves them even a little right.
https://casetext.com/case/people-v-ramirez-659
Bravo! Petit larceny, a misdemeanor, serves as the basis of a felony business records violation where the defendant "returned" merchandise they hadn't purchased for a store credit then used to buy other stuff. The fraudulent business record charge is premised on causing the store to enter a false credit. Very cute. The case cites to two other cases where defendants did similar things.
Let me ask you a question, though. Do you like this use of the business records law? I mean, in a cosmic sense, how is this conduct worse than just shoplifting that would involve no business record? What about the business record aspect of the defendants' conduct, in your mind, makes this a significantly more serious crime than just stealing stuff? My vote would be to punish these people the same as shoplifters of items of similar value.
But maybe your point is, hey, what's good enough for Ramirez is certainly good enough for Trump, and I'm with you there.
Do I like this use of the business records law? To be honest I would have to say no. It’s similar to the Illinois rule that allows what would otherwise be retail theft misdemeanants to be convicted of the felony of burglary if the State can prove they had an intent to steal at the time they entered the store. The theory being that the entry into the building was unauthorized because a merchant’s invitation to enter, which is extended to the public at large, does not apply to people who have an intent to steal. See below.
What makes the Trump New York prosecution seem completely fair and reasonable to me is the fact that Michael Cohen got a three-year prison sentence for his involvement in the Stormy Daniels affair, and, at least until July 11, 2024, Trump, the person for whose benefit the whole cover-up was engineered, will have suffered no consequences at all.
https://caselaw.findlaw.com/court/il-court-of-appeals/1935492.html
Yeah, but he pled on a federal charge never brought against Trump. Maybe it's a touch of cosmic justice, but I'm not sure I buy that a state prosecutor should move in ways they ordinarily wouldn't to make up for the feds not moving on it. Maybe.
I really like the angle, though, that criminal defendants like retail thieves routinely face dubious, stretchy legal shenanigans like the business record thing and the not-a-burglary theory you mention (which strikes me as a joke, frankly) -- the sort of thing I'm complaining about -- and what's sauce for the goose, etc. I would prefer a world with no shenanigans.
There is, I think, a significant legal difference between a real estate broker refusing to show a home to someone because they are black, and refusing to show a home to someone because of a previous unpleasant interaction with them. Do you think the law should treat both of those incidents the same?
Bravo again. I think it's probably super hard to distinguish anti-discrimination law, which I fully support, from hate-motivated enhancements. You're effectively punishing the person more for discriminating in victim selection. I don't love it. I want to say something like, in the real estate case or any public accommodation case, the crime *is* the discrimination -- the denial of service or whatever -- and not the thoughts or feelings of the discriminator, except as necessary to prove that the discrimination took place, but that seems perilously close to a distinction without a difference, so big point to you on that one. Makes me want to read up more on the issue which I think has crossed Eric's desk a few times over the years.
p.s. Hey, thanks for making me change my mind a bit. That's fun!