Criminal Justice

Manhattan DA Drops Murder Charge Against Jose Alba. It Never Should Have Been Filed.

The initial decision to pursue prosecution runs contrary to the campaign promises of Alvin Bragg, who claims to understand that, so often, the process is the punishment.


Manhattan District Attorney Alvin Bragg has dropped a murder charge against a bodega worker who stabbed a customer during a highly publicized altercation that reinvigorated a debate around self-defense and victimization.

Bragg acknowledged in Manhattan Criminal Court that his office could not prove beyond a reasonable doubt that the 61-year-old clerk, Jose Alba, "was not justified in his use of deadly physical force."

Around 11 p.m. on July 1, Austin Simon, 35, entered the store shouting profanities at Alba after Simon's girlfriend's payment was declined for a bag of chips. Simon then came behind the cashier's counter, shoved Alba, hovered over him, and appeared to try to forcibly remove him from behind the cash wrap. Alba subsequently grabbed a knife and stabbed Simon, ultimately killing him.

Additional surveillance footage shows Simon's girlfriend telling Alba that Simon was about to come in and "fuck [him] up." And while the fight was ongoing, she can be seen stabbing Alba—although no charges have been filed against her, including for unlawful possession of a weapon.

Bragg has certainly done the right thing by dismissing the charge against Alba. But the decision to pursue one at all runs contrary to the beliefs of the self-styled progressive prosecutor, who claims to understand that, so often, the process is the punishment.

Nothing demonstrates that amnesia better than a meeting he had last week with the United Bodegas of America, during which he reportedly said he wasn't sure "why people [were] jumping to conclusions" about his decision to pursue Alba for murder. I would argue that's because Bragg's office sent the 61-year-old to Rikers Island, originally sought a $500,000 bond to keep him there, and charged him with murder. It's not a mystery.

Those decisions would've likely raised eyebrows no matter which prosecutor had made them. But Bragg isn't just any prosecutor, having won office on a promise to reform the criminal justice system. Two platform planks stand out in particular: pledges to "end[] mass incarceration" and "reform[] pretrial detention." Yet, Alba was not initially fortunate enough to be on the receiving end of those promises, having been locked up in what is arguably one of the most dangerous pretrial detention centers in the country while staring down decades in prison, despite video footage demonstrating convincing evidence of his innocence from the beginning.

People will disagree on why Bragg charted his initial course and why he decided to reverse it. But I'll posit a theory: Progressive prosecutors, and some criminal justice reformers generally, sometimes have a blind spot for self-defense claims, particularly when they may empathize with the person killed. As I wrote shortly after the murder charge was filed: "Simon was black, poor, and caught up in the criminal justice system. And so now Alba—himself neither white nor well-off—is caught up in the criminal justice system too." It's hard to see who wins here.

Some may argue that the law governing the issue should have put this to bed from the start. A person may kill in self-defense if he or she "reasonably believes that such other person is using or about to use deadly physical force," according to New York Penal Law 35.15, or, notably here, if "he or she reasonably believes that such other person is committing or attempting to commit a…robbery." Based on the footage, it's my view that Alba met that standard. But even if you hesitate in coming to that same conclusion, it's near-impossible to square Bragg's promises to liberally use discretion with his initial treatment of Alba.

Prosecutors, after all, exercise discretion every day. It's part of the job. Bragg ultimately came around and exercised it appropriately, and for that, we should be grateful. But not every defendant is lucky enough to attract national media attention and a groundswell of outrage.