A Clear Self-Defense Case in New York City

BUCK: There was this in New York City, and it’s now catching national attention because of a lot of what I think people are feeling right now is, there is a — among woke progressive prosecutors, there seems to be this — desire to go soft on criminals. Meaning either don’t charge them at all, dismiss the charges, give them minimal charges, or let them get out early. There’s just this attitude within the criminal justice apparatus of the left where they are in charge, which is now pretty much every major city.

As I said, Clay, I checked in on this one with our buddies Michael Berry and Jesse Kelly. Houston even has a progressive prosecutor now. This is not just a thing that’s happening in cities in the blue states. It’s all over the place. Here’s the situation, and it’s a self-defense case that is already being treated as a murder by Alvin Bragg, the new district attorney here in New York City. A man named Jose Alba, 62 years old — almost a senior citizen — was working in his bodega. Now, for those who aren’t familiar with bodegas, it’s very much like a deli or a small grocery store.

We call them bodegas here in New York City and so that’s how I’ll be referring to it. Just common parlance here in New York. So, he’s a bodega employee, and he was doing his job, he’s behind the counter, and there is some kind of disagreement with a woman who is the girlfriend now of the deceased who apparently tried to buy a bag of potato chips for her daughter. Her debit card was declined, and the store employee said, “Give the chips back.

“You have not paid for them, and if you cannot pay for them. You must give them back.” According to police, then the woman produced — pulled — a knife out of her handbag. There was a scuffle, and she ran out of the store to call on her boyfriend for help. Her boyfriend, now dead — this guy Simon — was on parole at the time for attacking a police officer. So, this is a person with a violent criminal history. State records also show that he had spent time in various New York prison facilities previously.

Clay, this is all on video. We’re putting the video up at ClayAndBuck.com so people can see it themselves. You should see this video. This individual… Remember, he’s already — this guy’s an employee, Jose Alba, okay? He’s been working there for decades, apparently a very well respected and liked member of his community. No criminal record, never had a problem of any kind, and this guy Simon goes in and assaults him. It’s all on video. He shoves him into the stack, gets physical with him.

Alba tries to go — and this is behind the employee desk. Alba tries to go around him and then — and then Austin Simon, 37-year-old ex-con, attacks him again. And Jose Alba pulls out a knife, and stabs twice, defends himself. Simon dies. Clay, Jose Alba, the employee here, is facing second-degree murder charges right now and being held in Rikers Island Correctional Facility. People are outraged, and I think we all see what’s going on here.

CLAY: It’s gonna be a big story to the extent that it’s not already. A couple of other details: Bail, $250,000, which is a really not surprisingly high number.

BUCK: Originally it was half a million. They lowered it.

CLAY: Yeah, and maybe they’ve increased it since then — I’m reading from the Daily Mail — and this is also important, I think, Buck. The family launched a GoFundMe.

BUCK: Sorry, they asked the judge for half a million — pardon — and then it was set at 250. Go ahead.

CLAY: The family launched a GoFundMe to try to raise money so they could bail him out. They had raised $20,000, and then GoFundMe pulled their fundraising capability, much like they did for the Kyle Rittenhouse case, because GoFundMe basically decides if there’s anything that’s the least bit controversial that BLM is upset about, that is going against the prevailing left-wing orthodoxy, they will pull it back. So, the case is going — this is according to the Daily Mail, again — in front of a grand jury on Saturday.

This is going to be everywhere, is my prediction. You saw the story ’cause this is New York City — and, again, it’s all on video. You can watch this; everybody can effectively be their own juror and determine what they believe is appropriate or inappropriate. The racial dynamics at play here — let’s be honest — are significant because the guy that got stabbed is black. The bodega employee, I’m assuming is Hispanic based on his name?

BUCK: Jose Alba, yes.

CLAY: Based on his name. So, you’ve got that dynamic that is at play as well. You’ve got the location here, Buck, which you could speak to better than I could, but it’s a Harlem bodega, right?

BUCK: It’s in a heavily black and Hispanic neighborhood.

CLAY: Neighborhood. You have the past history of this individual who was stabbed, and that will be much debated in terms of admissibility in the event that this is a criminal trial. But you also have Alvin Bragg, who has typically been — and, again, you’re in New York City so you can speak to this very well, but I follow it. Let’s say “soft on crime,” right? He has not charged people to the utmost, by and large, when they are accused of misconduct, accused of criminal activity. And here, the book’s getting thrown at this guy!

Now, I think it’s gonna be a really difficult case, right, for New York City in general because I think this guy has the right to defend himself. So, I can look at this from the perspective of what exactly is going on. But what was being said? You can’t hear, right? There’s no audio on this video that I have seen so far. That certainly goes a long way towards implicating self-defense because if the guy’s saying, “Hey, I’m gonna kill you ’cause of how you treated my girlfriend,” that certainly plays in here.

BUCK: Yeah.

CLAY: The age, the size, the positioning — all of this is going to be factored — ’cause everybody can watch it for themselves and make their own decisions.

BUCK: I’ve had some use of force training from the government in the past, and I can tell you that when you have someone who is bigger and stronger, who has already… Remember, he’s coming in, in effect here, to finish off the fight that his girlfriend wrongly started, flashed a knife, which brings a weapon into the case immediately. So, what we’re asking this individual, Jose Alba, to do here is to hope that the knife that has already been used to threaten him is not now in the hands of this guy who wasn’t even there, who’s a violent felon, who is clearly a guy who has an anger problem.

CLAY: He didn’t enter the store with good intentions.

BUCK: Right, clearly didn’t enter the store ’cause he wanted to have a nice chat with him. He assaulted him once physically, and then the guy tries to get away. He didn’t use the knife the first time, and then he wanted to assault him again behind the counter in the store. If this isn’t self-defense, what is self-defense? What is the City of New York asking Jose Alba to do here? Is it to wait until you get stabbed and then you’re allowed to defend yourself?

Is it to wait until you’re already bleeding out and about to die and then maybe you can use lethal force? I see this instance, and you come away from this thinking, Democrats really only want to throw the book, it seems, when it comes to use of force at people who are defending themselves in some of these cases! The Kyle Rittenhouse thing, for example.

Kyle Rittenhouse was on video defending himself. They charged him with murder. In this case, this is clear video. Charging him with second-degree murder? Not even manslaughter. Second-degree murder? It is outrageous, but, you know, the attitude of the Democrats now, Clay, is you gotta let people go in your store, steal your stuff, and rough you up. That’s the way we have to live.

CLAY: Let’s be honest here. It’s identity politics.

BUCK: Yeah!

CLAY: To me, GoFundMe taking down his ability to raise money to defend himself… We have not spent — and I mean as a society — enough time talking about the powers of Big Tech to determine — this is me being a lawyer here. Why should everyone who wants to donate money to a legal defense fund for this individual not be able to do so? Why should GoFundMe which allows legal defense money to be raised in left-wing cases all the time not have gotten more criticism for the Kyle Rittenhouse case?

And when you’re talking about a $250,000 bail, why should this family not be entitled to try to raise money using the GoFundMe platform as well? And for people who’ve listened to this show regularly, you know that I have donated to the criminal defense fund of the January 6th prisoners. We’ve got people who are still in solitary confinement who have not been able to have justice in that case over 18 months after they were allegedly committing a crime.

Regardless of what your politics are, we have really — and this is the ACLU, this is the legal defense community in general. Remember, Buck, John Adams defended the British soldiers who were accused of committing the Boston Massacre, not because he agreed with their behavior, but because the responsibility of a lawyer is to provide zealous defense for his client. How can you not allow that client to be hired?

BUCK: The left does not believe that the enemies of social justice deserve a legal defense.

CLAY: That’s right.

BUCK: That is bottom line. That is the truth. It is the truth now with the ACLU. It is the truth with the Democrat Party. It is the truth of prosecutors as well in cities like New York. You see an instance like this and you say to yourself, this all ties in to what we saw for a while, if you remember. In San Francisco there started to be these news editorials. Don’t call the police when someone’s robbing her house. That might incur violence against a person of color who is committing a nonviolent crime.

Those were real editorials, folks. I’m not making this up. There was a sentiment. The social justice left tells people, “Don’t tackle anybody or physically block anyone who’s engaging in grand theft larceny from your store. Let them take it! It’s just property. Why would you use violence — and in this case, violence disproportionately that may target communities of color?” This is the thinking of the left. They say it out loud, and so when you get a prosecutor like this, it’s, “Just let them steal the bag of potato chips!” It’s almost like he started it by not letting them have the chips. In the mind of Alvin Bragg, you started it by not letting someone steal from you quietly.

CLAY: Well, and I would say, too, Buck, is that self-defense is about the mind of the self-defender. In other words, what threats did they perceive. How do you not allow, in your mind, the rise of violence in New York City to not also go into the level of fear that you feel when there are random acts of violence and crimes skyrocketing all over your city — probably your neighborhood as well — when you are working in that shop.

All of that is part of the decision that you are making when in that spur of the moment you act. And again, that video is out there. A lot of you… I had not seen this until you shared it with me, Buck, when we set down to start the show today. I think this is going to become a major, major story before all is said and done, because the identities involved, because there’s a video and everybody can sit down and be their own juror.

BUCK: And it’s close video. You see everything.

CLAY: Yeah.

BUCK: There’s no, “Oh, but it cuts here or there that you can’t see what’s going on.” You see everything.

CLAY: It’s New York City where the media covers things, as you well know, more aggressively than they do in other parts of the country. You’ve got the Alvin Bragg angle. You’ve got GoFundMe pulling the ability for this guy to raise defense funds. This is gonna be a really big story.