July 2016 Archives

Two Officers Shot, One Fatally, in San Diego:  A San Diego police officer was shot and killed and his partner wounded during a late night traffic stop Thursday.  Veteran officers Jonathan DeGuzman and Wade Irwin were both wearing bulletproof vests and body cams when they stopped the suspect vehicle.  AP writers Elliot Spagat and Julie Watson report that, as the driver opened fire, the officers called for backup.  Seconds later backup officers found officer DeGuzman fatally wounded and officer Irwin seriously injured.  Officers quickly located the suspect in a nearby ravine. While yet unnamed suspect was hospitalized for injuries, police were searching for a possible accomplice. 

Second Chance City:  WaPost writer Amy Brittain reports on a habitual felon from DC with a long record of property and violent felonies who was released from federal prison after serving two years for robbing a woman.  In spite of nine referrals to the FBI for threatening to rape prison guards, and multiple sexual offenses while incarcerated, 6' 4", 220lb, Antwon Pitt was never prosecuted.  Two months after his release Pitt cut off his GPS tracking device and was arrested on drug charges.  He was  promptly released by a federal magistrate who did not bother to review his criminal record.  Days later Pitt robbed a DC woman during an early morning home invasion.  The next week he raped a 40-year-old college professor in her home.  Brittain's piece examines Pitt's history of interactions with law enforcement and the federal system's repeated failure to identify him as a dangerous offender who should have been kept off the streets.    

From an essay in the current Claremont Review of Books by John Marini:

[Today's] intellectuals have pronounced their historical judgment on America's past, finding it to be morally indefensible. Every great human achievement of the past--whether in philosophy, religion, literature, or the humanities--came to be understood as a kind of exploitation of the powerless. Rather than allowing the past to be viewed in terms of its aspirations and accomplishments, it has been judged by its failures. The living part of the past is understood in terms slavery, racism, and identity politics. Political correctness arose as the practical and necessary means of enforcing this historical judgment. No public defense of past greatness could be allowed to live in the present. Public morality and public policy would come to be understood in terms of the formerly oppressed.

Triple Murderer could face Death Penalty:  A Washington state man accused of shooting four people, three of them fatally, earlier this month could face the death penalty, prosecutors announced Wednesday.  Jessica Prokop of the Columbian reports that Brent Ward Luyster, 35, who has several white supremacist tattoos and a criminal background, faces three counts of aggravated first-degree murder with the use of a firearm and first- and second-degree unlawful possession of a firearm for the July 15 murders of two men and one woman.  Another woman was shot in the side of the face but survived.  Luyster's girlfriend, Andrea Sibley, 27, is charged with first-degree rendering criminal assistance for being present at the time of the shooting, driving Luyster away from the scene and helping him flee the area.  The motive for the crime has not yet been disclosed.  In Washington state, where Gov. Jay Inslee suspended capital punishment in 2014, prosecutors may pursue aggravated murder and the death penalty if any one of 14 aggravating factors apply to the case.  Luyster's case involves two aggravating circumstances: multiple victims and motivation to conceal a crime.

DNC Invites Mike Brown's Mother, but No Relatives of Fallen Officers:  The mother of Michael Brown and other mothers of black men and women who have died during police encounters appeared on stage Tuesday night at the Democratic National Convention, angering local and national police groups who didn't see any relatives of fallen police officers present.  Chuck Raasch and Christine Byers of the St. Louis Post-Dispatch report that the inclusion of "Mothers of the Movement" without a presence of relatives of officers killed in the line of duty made police "very concerned" that the choice to include one and not the other may "perpetuate a message of hate that we've seen so often by some of the current movements."  The St. Louis County Police Organization and the St. Louis Police Officers' Association criticized Hillary Clinton and DNC organizers for ignoring families of fallen police officers, saying that the Democratic party is on the wrong side of this issue.  Michael Brown was fatally shot in 2014 by then-Ferguson Police Officer Darren Wilson, prompting the "hands up, don't shoot" lie and galvanizing the Black Lives Matter movement.  A St. Louis County grand jury declined to indict Wilson in the shooting, and an investigation by the Department of Justice found that Wilson was justified in shooting Brown because he reasonably feared for his life as Brown was attempting to attack him. 

Teens in 'Slender Man' Stabbing to be Tried as Adults:  Two 14-year-old girls will be tried as adults for stabbing their friend in order to please the fictional horror character known as the "Slender Man."  Emma Patton of the Washington Times reports that Morgan Geyser and Anissa Weier were only 12 at the time of the 2014 attack when they lured their friend, Payton Leutner, into the Wisconsin woods and stabbed her 19 times as homage to the Slender Man, but Leutner miraculously survived.  The myth of the Slender Man was born after he was photoshopped into pictures portraying him as a long, slender, black figure with tentacle-like arms and has since become an internet sensation.  Users of the internet can access games and stories featuring the Slender Man, who does not necessarily participate in killings, but encourages it.  If convicted, Geyser and Weier could face up to 65 years in prison for attempted first-degree intentional homicide.

Probably not.

Lawful gun owners commit less than a fifth of all gun crimes, according to a novel analysis released this week by the University of Pittsburgh.

In the study, led by epidemiologist Anthony Fabio of Pittsburgh's Graduate School of Public Health, researchers partnered with the Pittsburgh Bureau of Police to trace the origins of all 893 firearms that police recovered from crime scenes in the year 2008.

They found that in approximately 8 out of 10 cases, the perpetrator was not a lawful gun owner but rather in illegal possession of a weapon that belonged to someone else.

James Taranto at the WSJ has this column listing some of the reaction to Donald Trump's email comments yesterday.  "Reaction was swift and, we will argue, overwrought."  My take is in this post.  Part of the disagreement is on how you interpret what he said, and there is some room for reasonable disagreement there.  What is most certainly out-of-bounds, though, is the hysterical claim that his comment is treason.

Treason is the only crime defined in the Constitution.  The Framers put the definition there and made it exceedingly narrow to preclude the kind of creative definitions of treason that were instruments of tyranny in England at least as far back as the notorious King Henry VIII.  Here is the American definition:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

Are we at war with Russia?  Nope.  The treason talk can stop right there.  QED.

We don't need to guess about what liberal policies like widespread sentencing reduction and less proactive policing will do to our citizens, and minorities in particular.  We already have a good deal of evidence.

Shooting Death of Police Up 78% in 2016:  Preliminary data analysis of law enforcement deaths across the U.S. reveals that the number of officers fatally shot in the line of duty is up 78% this year compared with the same period last year.  Andrea Noble of the Washington Times reports that data from the National Law Enforcement Officers Memorial Fund found that as of July 20, there have been 32 firearms-related deaths recorded, constituting nearly half of the 67 line-of-duty deaths reported by police agencies, while deaths from ambush-style attacks comprised 14 of the fatal shootings.  Previous data shows the number of officers fatally shot has averaged 52 a year and ambush-style killings have ranged from five in 2011 to 15 in 2014.  The "extremely troubling" data comes just weeks after eight police officers, five in Dallas and three in Baton Rouge, were assassinated in separate ambush attacks.

Estimated Prop. 47 Savings all Wrong:  In 2014, California voters were under the impression that by voting for Proposition 47, a measure that reduced crimes such as drug possession and theft from felonies to misdemeanors, there would be "a shift in emphasis from prison to rehabilitation" that would result in savings in "the low hundreds of millions," but it looks as though they have been duped.  Rachel Cohrs of the Sac Bee reports that voters believed that by approving Prop. 47, hundreds of millions of dollars would be saved, and in early 2016, their expectations were reassured by the Legislative Analyst's Office, which projected a savings of approximately $130 million in the previous year.  However, the Department of Finance calculated that, in actuality, savings came in at just $29.3 million.  Even ardent supporters of Prop. 47, such as Aqeela Sherrills, are having trouble understanding why the state started "playing with our money again."

Obama Admin Expands Illegal Immigrant Program:  The Obama administration announced Tuesday of an expansion to its immigration program, inviting thousands of Central Americans to apply for refugee status in the U.S., creating pathways beyond vulnerable children to their parents, adult siblings, grandparents, aunts, uncles and even caretakers.  Stephen Dinan of the Washington Times reports that House Judiciary Committee Chairman Bob Goodlatte criticized the move as "a continuation of the government-sanctioned border surge," while Jessica Vaughan, policy studies director at the Center for Immigration Studies, wonders who is paying for illegal immigrants to resettle their entire families, something "no other category of legal immigrant is allowed" to do.  Officials say the expansion could result in a "significant" surge and expect it to be a "lasting" trend.  More than 9,000 applications have been submitted and thousands have already made it through the interview stage. 

Ed O'Keefe, Jose A. DelReal and John Wagner have this article in the WaPo, with a lead paragraph that is typical of what is all over the net:

Democrats prepared to use their convention Wednesday night to raise fresh doubts about Donald Trump's fitness to serve as commander in chief, as the Republican presidential candidate called on Russia to hack into Hillary Clinton's email server to find "missing" messages and release them to the public.

But did he really say that?  His actual statement is in the next two paragraphs:

"Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press," Trump said during a news conference at his South Florida resort on Wednesday.

"They probably have them. I'd like to have them released. It gives me no pause, if they have them, they have them," Trump added later when asked if his comments were inappropriate. "If Russia or China or any other country has those emails, I mean, to be honest with you, I'd love to see them."

As I read that, he is expressing a belief that they already have the emails, having hacked Mrs. Clinton's home-brewed server a long time ago, and he is saying he hopes they release them.  That is a very different thing.

How could he possibly call on Russia to hack into a server that was taken off line and wiped a long time ago?  That doesn't make any sense.

I prefer to read transcripts rather than watch video of events.  It saves a lot of time to skip over the parts I am not interested in and use word search to find the parts I do care about.  Unfortunately, there aren't enough transcripts on the Net.

The problem, though, is that the transcripts that are out there are generally produced by voice-recognition software, and anyone who has ever used voice recognition knows it can get things very wrong.  That is why we still have humans preparing trial transcripts.  The WaPo has this transcript of Donald Trump's press conference this morning, annotated by its not particularly even-handed staff.  The part about colleges costs has an example.

John Hinckley, who attempted to assassinate President Reagan in March 1981 but was found not guilty by reason of insanity, has been ordered released.  The judge, US District Judge Paul Friedman, found that Hinckley does not pose a danger to others.  One can only hope this prediction is true.  It didn't work out so well with Wendell Callahan.

The Baltimore Sun reports this morning:

Prosecutors dropped all remaining charges against three Baltimore police officers accused in the arrest and death of Freddie Gray in a downtown courtroom on Wednesday morning, concluding one of the most high-profile criminal cases in Baltimore history.

The startling move was an apparent acknowledgement of the unlikelihood of a conviction following the acquittals of three other officers on similar and more serious charges by Circuit Judge Barry G. Williams, who was expected to preside over the remaining trials as well.

It also means the office of Baltimore State's Attorney Marilyn J. Mosby will secure no convictions in the case after more than a year of dogged fighting, against increasingly heavy odds, to hold someone criminally accountable in Gray's death.

Officer William Porter's trial ended with a hung jury and a mistrial in December, before Williams acquitted Officers Edward Nero and Caesar Goodson and Lt. Brian Rice at bench trials in May, June, and July, respectively.

Sometimes the obvious stares you in the face.

Marilyn Mosby fiddles while Baltimore burns:

A man was fatally shot Tuesday morning in West Baltimore, becoming the city's 31st homicide victim this month.

The man, who police have been unable to identify, was killed about 10:13 a.m. in the 2100 block of Garrison Boulevard, north of Gwynns Falls Park, police said.

Prior to the spike in violence last year following the death of Freddie Gray, the city had not recorded 30 homicides in a month since the 1990s. In 2015, the city had five months with more than 30 homicides. July is the first month this year that the city reached that mark.

Following up on my post yesterday, here is how not to do it.

Study finds Violent Crime Rising in US Cities:  A new report indicates that violent crime in several major U.S. cities is on the rise.  Wesley Bruer of CNN reports that the Major Cities Chiefs Association (MCCA) released its midyear violent crime survey on Monday, showing 307 more homicides, over 1,000 more robberies, nearly 2,000 more aggravated assaults and more than 600 non-fatal shootings in 2016 compared to the same period last year.  The Chicago Police Department reported the most significant increase in homicides, with 316 so far this year, a 48% increase over last year, while the Los Angeles County Sheriff's Department reported 110 homicides so far this year, compared to 85 in 2015, and San Jose's homicides more than doubled.  The MCCA is made up of police chiefs and sheriffs representing the 68 largest law enforcement agencies in the country.  The latest survey included data reported from 51 law enforcement agencies.

'Purge' Murder Suspect will face Death Penalty:  Prosecutors announced Tuesday that they will seek the death penalty against an Indiana man who murdered three people during a four-day crime spree two months ago.  WISH-TV reports that Johnathan Cruz is accused of murdering three men between May 12 and May 15 in what prosecutors allege were "killings for sport" inspired by "The Purge," a 2013 film in which the government allows its citizens to commit any crime without fear of prosecution on one night each year.  During the crime spree, Cruz and another man also committed armed robbery.  He was arrested May 16 on separate charges of criminal confinement, intimidation and battery.  Cruz faces a total of 17 charges, including nine counts of murder, as well as a gang enhancement.

CT Murderer Resentenced:  A man on Connecticut's death row has had his sentence commuted to life in prison without the possibility of parole on Tuesday because of last year's ruling by the state Supreme Court to abolish the death penalty.  The AP reports that Joshua Komisarjevsky, was given six consecutive life terms for the 2007 home invasion murders of Jennifer Hawke-Petit and her two daughters, Hayley, 17, and Michaela, 11.  Komisarjevsky and another man, Steven Hayes, beat Hawke-Petit's husband, Dr. William Petit Jr., and left him bound in the basement before terrorizing Hawke-Petit and her daughters for hours.  Komisarjevsky and Hayes sexually assaulted them, then tied Hayley and Michaela to their beds and set the house on fire.  The sisters died of smoke inhalation and Hawke-Petit was strangled to death by Hayes.  Dr. Petit survived the horror and escaped from the basement while the house was on fire.  Hayes, who was also on death row for the murders, was resentenced last month.  Komisarjevsky's resentencing makes him the third Connecticut death row inmate to have his sentence changed to life in prison since the state's high court ruled it unconstitutional last year.  There are eight other condemned inmates awaiting resentencing.

Convicted Murderer Suspected in Cellmate's Death:  A California inmate serving time for murder has been named as a suspect in the death of his cellmate at Kern Valley State Prison in Delano.  Brian Rokos of the Press Enterprise reports that Joseph David Dorsey, 31, is suspected of slaying Jason M. Christner, 39, who was found unresponsive in his cell last Thursday and pronounced dead less than 30 minutes later.  Christner had been serving time for burglary as well as additional time for in-custody convictions of battery and assault with a deadly weapon.  Dorsey is in prison for the 2012 strangling death of his girlfriend, Christine Osborn-Stewart, 47, for which he was sentenced 56 years to life in 2013.  He is currently in the prison's Administrative Segregation Unit pending investigation into Christner's death.

Habeas corpus is the correct procedure for persons who claim they are wrongly imprisoned.  For any other civil rights claim in federal court by a state prisoner, the correct procedure is a suit under the civil rights law, 42 U.S.C. §1983.  The line between the two is not always clear.

Today the U.S. Court of Appeals for the Ninth Circuit, sitting sort of en banc, decided Nettles v. Grounds, No. 12-16935:

Damous Nettles, a prisoner serving a life sentence in California prison, appeals the district court's dismissal of his habeas petition for lack of jurisdiction. The petition challenged a disciplinary violation on constitutional grounds and claimed that the failure to expunge this violation from his record could affect his eligibility for parole. We conclude that because Nettles's claim does not fall within the "core of habeas corpus," Preiser v. Rodriguez, 411 U.S. 475, 487(1973), it must be brought, if at all, under 42 U.S.C. § 1983.

Judge Ikuta wrote the opinion, joined in full by Judges Rawlinson, Clifton, Callahan, and Randy Smith.  Judge Hurwitz concurred in part.  Judge Berzon dissented, joined by Chief Judge Thomas and Judges Fletcher, Murguia, and Nguyen.

The Wall Street Journal carries an article of considerable concern.  It's titled, "Murders Rise in 29 of the Largest Cities in First Half of 2016."  It starts:

The number of murders in 29 of the nation's largest cities rose during the first six months of the year, according to the results of a survey released by the Major Cities Chiefs Association on Monday.

Overall, homicides jumped 15% in the 51 large cities that submitted crime data, compared with the same year-ago period. 

Today was revealing about the place of policing in this country.

Wow.  You can't make this stuff up.

The DNC chair got the ax when hacked emails definitively proved what just about everyone paying attention pretty much knew -- that she was using the party apparatus to favor one primary candidate over the other.  We didn't think it warranted mention on this blog.

But who is the substitute convention opener?  It is none other than the notorious Baltimore Mayor Stephanie Rawlings-Blake, the one who said as her city was burning:

It's a very delicate balancing act because while we try to make sure that they were protected from the cars and the other things that were going on, we also gave those who wished to destroy space to do that as well, and we work very hard to keep that balance and to put ourselves in the best position to de-escalate.

She quickly blamed others for supposedly mischaracterizing her words, saying she did not mean what she plainly said.

One foolish statement would not have been so bad if she had followed up by doing everything right after that, but the City of Baltimore has not.  Closer to the opposite, and it has the crime to prove it.

If the Democratic Party wanted to make this election all about who is on the criminals' side and who is on the law-abiding people's side, with themselves being the wrong side, it could hardly have chosen a more effective face to put forward to open its convention.

And just to be very, very clear, there is no balance to be struck with free speech when a full-blown riot is in progress.   Government can constitutionally put "time, place, and manner" limits on speech to serve important interests, and peaceful protests can be postponed until peace is restored.

Manson Follower Denied Parole:  California Gov. Jerry Brown denied parole last week for a former Charles Manson follower convicted in the murder of two grocers nearly five decades ago.  The LA Daily News reports that Leslie Van Houten, 66, was recommended for parole in April by a state parole board, but Brown rejected it on Friday, writing in his decision that "she currently poses an unreasonable danger to society if released from prison."  Charles Manson and several of his followers have repeatedly been denied parole over the years, Van Houten included, this latest denial being her 20th.  Van Houten was convicted of murder and conspiracy in the 1969 stabbing deaths of Leno La Bianca, 44, and his wife Rosemary, 38, with two fellow Manson family members.  She was initially sentenced to death but was re-sentenced to life in prison without parole after the U.S. Supreme Court ruled the death penalty unconstitutional in 1972.

Pending Illegal Immigration Cases at All-Time High:  Pending cases in the U.S. immigration courts have reached an all-time high, with nearly 500,000 cases backlogged and in the hands of just 273 immigration lawyers.  Paul Bedard of the Washington Examiner reports that Syracuse University's Transactional Records Access Clearinghouse revealed that at the end of June, the backlog of pending immigration cases climbed to 496,704, up from 456,216 nine months ago and 408,037 two years ago.  The staggering number of pending cases produces a ratio of 1,819 cases per judge.  Currently, it takes almost two years -- 672 days -- for an immigration case to reach court.  Illegal immigrants are allowed to remain in the country while awaiting their court dates, which several reports have shown they rarely make.

TX Sheriff Shot Dead at Home:  A Texas sheriff's deputy was fatally shot in his backyard early Monday in what appears to be an attempted robbery.  CBS reports that Travis County Sgt. Craig Hutchinson, a 36-year veteran, used his police radio at about 1:30 a.m. to report that people were in his backyard, and was discovered dead moments later by investigators.  Multiple suspects are being sought, though no arrests have been made.  Authorities say there is evidence indicative of an attempted robbery of Hutchinson's backyard shed, and doesn't look to be an ambush targeting him as a law enforcement officer as seen in the killing of Dallas and Baton Rouge officers earlier this month.

Databases are all to the good  --  if you take the time to look behind the data. Unfortunately, people in the press and academia have become experts at putting out "databases," then citing them for a distorted rendition of what they actually show. They do this knowing that only a fraction of readers will get beyond the article's first few paragraphs.

Baton Rouge cop killer Gavin Eugene Long and others who have killed police officers in the line of duty are included in The Washington Post's Pulitzer Prize-award winning "Fatal Force" database, a review conducted by The Daily Caller finds.

The database also counts Omar Mateen, the Islamist who was killed by police in Orlando after slaughtering 49 people at a gay nightclub, as one of the 533 people killed by cops so far this year.

The database, which includes demographics of individuals fatally shot by police as well as details about their background and the circumstances of the shooting, has been touted by reporters and activists for filling in a gap left by the FBI's limited statistics.

But the database -- which counted 990 police shooting victims last year -- is often cited by activists without the important context that many of the people killed by police officers deserved it.

 

In May of 2011, about two weeks after Governor Brown signed legislation (AB109 ie. Public Safety Realignment) allowing the early release of thousands of state prison inmates, Associate Justice Alito wrote a dissent in the Supreme Court case of Brown v. Plata noting that the "premature release of approximately 46,000 criminals, the equivalent of three Army divisions...is gambling with the safety of the people of California."  When the law took effect in October of that year, CJLF began reporting on the significant number of of violent crimes being committed by criminals released into California counties by the inmate release law.  These reports were dismissed by supporters of Realignment and some think tanks.  Examples include a May 29 OpEd in the Sacramento Bee by former California Assemblywoman Jackie Goldberg who wrote " A year ago we heard fear-mongering voices warning of dangerous criminals being released."  She boasted that the law has successfully reduced the state prison population and criminals on parole "without a spike in crime."   Later FBI numbers indicated that both violent and property crime in California did spike in 2012,  leveled off in 2013, increased slightly in 2014 and then spiked by 13% over the first six months of last year.  This after nearly two decades of declining crime rates.   

Appellate courts often edit their opinions after release, and usually the edits are not substantive.  The U.S. Supreme Court used to make the changes quietly, without any public notice that a change had been made.  That changed this term.  Adam Liptak has this story at the NYT on the change and its implications.

When you look up an opinion on the Internet, which version are you getting?

Writing for the majority in a case about domestic assault on Indian reservations, Justice Ruth Bader Ginsburg had said a federal law applied to some serious crimes "when both perpetrator and victim are Indians." But what the law itself actually said, quite clearly, was that it applied to all victims, Indians or not.

*                       *                     *

The mistake in the domestic-assault case was fairly minor. Nothing in the ruling turned on it, and the error was unlikely to mislead lower courts even had it gone uncorrected, given that the statute it described was clear.

That is lucky, as the unrevised version was still all over the web as of Sunday, on respected sites like Scotusblog, Legal Information Institute, Findlaw and Justia.

I'm not sure about that "unlikely."  The U.S. Supreme Court's position in our legal system is such that even the most ill-considered and obvious obiter dicta can cause damage.

Here at C&C, when we discuss a recent Supreme Court opinion we will generally link to the version on Court's own site, where any changes will be reflected. 

Al Regnery presents a strong case in behalf of the petition to disbar Baltimore State's Attorney Marilyn Mosby.  The points he makes below bear particular emphasis:

[Ms.] Mosby has done enormous damage to the jurisdiction that entrusted her with [her] office. First is the staggering increase in crime in Baltimore since the Freddie Gray incident - much of it attributable to the "Ferguson effect" of police reluctance to put themselves in danger of prosecution. She has also made it more difficult for other prosecutors to bring difficult cases, since she has generated distrust and suspicion of the justice system among her constituents. Even beyond that, however, is the damage she has done, and continues to do to the justice system itself, which relies on public trust and reliance, by the people affected by it, that it is run professionally, without bias, and without political interference.

In my view, the battle over federal sentencing "reform" for this session of Congress has ended in victory for those of us wanting to preserve the gains the county has made in suppressing crime.

Donald Trump got significant help from the Convention.  This has not happened in the CNN poll since the 2000 elections.  The lead of CNN's story follows the break.

When I first saw the CNN coverage of the Munich massacre this afternoon, I noticed that the broadcasters went out of their way, with exactly zero evidence, to suggest that the killer might have been a right wing extremist, not a Jihadist.

A witness who will only be identified as Lauretta told CNN her son was in a bathroom with a shooter at the restaurant.

"That's where he loaded his weapon," she said. "I hear like an alarm and boom, boom, boom... And he's still killing the children. The children were sitting to eat. They can't run."

Lauretta said she heard the gunman say, "Allahu Akbar," or God is great. "I know this because I'm Muslim. I hear this and I only cry." 

Many children were among the casualties. Police said 16 people remain hospitalized.

The shooting comes as recent terror attacks have put Europe on high alert.

This week, a teenager who said he was inspired by ISIS stabbed passengers on a German train before police shot him dead. Only eight days earlier, 84 people were killed when a man drove a large truck through a Bastille Day crowd in Nice, France.

Heather MacDonald has a post-Trump acceptance speech wrap-up in the City Journal that suggests that The Donald's remarks reflect a stronger interest in preserving black lives than the President, Hillary Clinton, the media or the Black Lives Matter movement itself.  "As Trump said: "[Y]oung Americans in Baltimore, Chicago, Detroit, Ferguson . . . have as much of a right to live out their dreams as any other child America." Hint to the media: He was referring to black children in those cities, such as the ten children under the age of ten killed in Baltimore last year; the nine-year-old girl fatally shot while doing homework on her mother's bed in Ferguson, Missouri, in August 2015; and the nine-year-old boy in Chicago lured into an alley and killed by his father's gang enemies in November 2015, writes MacDonald.  

Kent wrote here about Virginia Gov. Terry McAuliffe's blanket order restoring the voting rights of about 200,000 felons in that state.  This afternoon, the Virginia Supreme Court nullified McAuliffe's order.

Today's News Scan notes the affirmance by the Kansas Supreme Court of the death sentence of Scott Cheever for the murder of Sheriff Matt Samuels in the performance of his duty.

This case was decided on remand from the United States Supreme Court.  The first time out, the Kansas Supreme Court reversed the conviction.   That court found a Fifth Amendment violation in the requirement that Cheever submit to a mental examination when he claimed a "mental disease or defect" defense.  The U.S. Supreme Court reversed unanimously in an opinion by Justice Sotomayor.  CJLF filed an amicus brief in the case.

On the first round, the Kansas Supreme Court considered only the penalty phase issues likely to arise on retrial because the case was going to be retried anyway.  On remand from the U.S. Supreme Court, they needed to consider in full whether to affirm the penalty.

One of the issues was whether the defendant was entitled to an instruction that the defendant need not prove his mitigating circumstances beyond a reasonable doubt.  The Kansas court had held that the Eighth Amendment requires this, but that holding was reversed last January by the U.S. Supreme Court in Kansas v. Carr.  CJLF also filed a brief in that case.  The state court can, and did, hold that the instruction is still required by state law.  However, because Cheever did not request the instruction a different standard of review applies, and the absence of the instruction was not so detrimental as to require reversal in this case.

Affirmance of this entirely just sentence is a good result, but long overdue.  It took so long because the Kansas Supreme Court erroneously decided two issues of federal constitutional law.  Kansas has the worst system of any state for appointing Supreme Court judges -- the State Bar is the gatekeeper to the bench -- and it shows.  Reform of this process should be top priority in that state.

When was the last time a presidential candidate made law and order the lead theme of his acceptance speech?  I can't remember.  The reason it has been so long is that we were so successful in bringing down crime rates that the issue dropped off of voters' radar screens.  It's back.

The Trump campaign has released a helpfully annotated text of the speech.  The facts on crime are substantially correct, regardless of what the WaPo fact checkers say.  I may have more to say on that later.  Here are some key lines.

The most basic duty of government is to defend the lives of its own citizens. Any government that fails to do so is a government unworthy to lead.

Yup, I've been saying that for some time.

KS High Court Upholds Death Sentence:  The Kansas Supreme Court upheld on Friday the capital murder conviction and death sentence of a man who gunned down a sheriff during a drug raid over a decade ago.  Amy Renee Leiker of the Wichita Eagle reports that the state's high court rejected Scott Cheever's claims that two errors occurred during the guilt-phase of his trial.  In January 2005, Cheever fatally shot Greenwood County sheriff Matt Samuels as he attempted to serve an arrest warrant on drug charges.  Cheever, 34, was convicted in 2007 of capital murder for Samuels' death, four counts of attempted capital murder for firing at other officers, criminal possession of a firearm and manufacturing methamphetamine, and was sentenced to death.  The case prompted law changes, known as the Matt Samuels Act, that made it harder to purchase ingredients used in making meth, including some allergy medications.  Cheever's death sentence is the second to be affirmed by the Kansas Supreme Court.  No one has been executed in the state since 1965.

Overall Crime up in L.A. for 2nd Straight Year:  The Los Angeles Police Department is reporting an increase in overall crime at the year's midpoint, for the second consecutive year.  Ben Poston and Kate Mather of the LA Times reports that through July 16, overall crime rose 6.3% when compared to the same point last year, with violent crime spiking 15.9% and property crime increasing by 3.8%.  Of the violent crimes, the largest increases were aggravated assaults, jumping 19.2%, and robberies, jumping 16.8%.  LAPD Chief Charlie Beck says that although some improvements have been observed since implementing new strategies in March, such as shifting more officers to the four South L.A. divisions with the highest crime rates and moving in Metro officers, he contends that his department is struggling to rein in property offenses, strong-arm robberies and aggravated assaults.  He also notes that violent and property crime totals have steadily climbed citywide since March even though the changes have resulted in decreases in some crimes.  The Los Angeles Sheriff's Department also reported an 8.4% rise in violent crime and a 6.8% jump in property crime through the end of June.  Officials have cited a variety of factors believed to be attributing the the problem, including gang violence, a rising homeless population and Proposition 47.

William Horobin and Inti Landauro report for the WSJ:

The man who killed 84 people in Nice on Bastille Day appeared to be planning the attack since last year and had the help of several people, France's top antiterror prosecutor said Thursday.

Investigative magistrates on Thursday were interrogating five people suspected of providing support to 31-year-old Mohamed Lahouaiej Bouhlel, said Paris Prosecutor François Molins, who laid out a timeline suggesting the attacker and his suspected accomplices had embraced Islamic extremism as early as the Charlie Hebdo attack in January of last year.

The details disclosed by Mr. Molins threaten to fuel public anger at French President François Hollande and his ministers, who have spent days defending their handling of the terror attack.

The new evidence appears to contradict claims made by top French officials immediately after the rampage that Lahouaiej Bouhlel was radicalized in a matter of weeks, leaving security services little chance of stopping him when he plowed through throngs of revelers on Bastille Day with a 21-ton truck.

Instead, Mr. Molins suggested Lahouaiej Bouhlel may have conducted surveillance on his target a year before he acted and communicated more than a thousand times with suspected accomplices.

Accomplices who share the specific intent are just as culpable as the triggerman.  Presumably some of them will be caught.  What will France do then?   Will they do like Norway with Anders Breivik and sentence them to less than four months in prison per life taken?

Are you really sure you don't want capital punishment, mes amis?

Sacramento District Attorney Anne Marie Schubert has this op-ed in the Sacramento Bee, responding to an earlier piece by Ron Briggs.  Unfortunately, it is behind the Bee's paywall.

The reason that no executions have occurred in California for 10 years is the state's delay in drafting regulations for a method of execution. Otherwise, there could have been at least 15 sentences carried out during the past decade. It's outrageous that victims' families were forced to sue the state to draft these regulations. Proposition 66 will prevent biased and unsympathetic politicians and government bureaucrats from interfering with this process.

*                       *                      *

Briggs believes abolition will benefit victims' survivors by closing cases and sparing them further "wounds." That is offensive and presumptuous. In our experience, most survivors want "justice" for the murderers of their family members. Repealing the death penalty will not heal these peoples' wounds; it keeps them permanently open.

Briggs naively touts life without parole as a sufficient alternative to the death penalty. He forgets that the last murderer executed in California, Clarence Ray Allen, was sentenced to death for the murder of three people, which he planned while already serving a life sentence for murder. Life imprisonment was not enough to protect the public from Allen.

Moreover, victims' families will always be haunted by the specter that an inmate sentenced to life without parole will suddenly ask the governor to reduce a sentence - as happened recently in the case of a Fresno murderer who waited 36 years and applied for clemency. As long as an inmate sentenced to life without parole lives, the governor could reduce the sentence and a murderer may be released on the streets.

7 Charged for Aiding FL Murder Suspect's Escape:  Several people have been charged as accomplices for assisting a Florida murder suspect and death row inmate escape from a crowded courtroom last Friday.  The AP reports that Francine Mesadieu, 31, provided prisoner Dayonte Resiles, 21, with a wig, clothes and colored contact lenses to disguise himself, while Paige Jackson, 18, helped to plan the escape through three-way jail phone calls.  Resiles was sitting in the jury box when he slipped out of his shackles, jumped a courtroom barrier and ran past two unarmed bailiffs towards downtown where a car was waiting for him.  Fellow inmate, Walter M. Hart II, 22, has also been charged for holding Resiles' shackles while he manipulated them along with Resiles' girlfriend, LaQuay Stern, 18, who was driving the getaway car.  Resiles has been rearrested.  Sheriff Scott Israel stated that armed deputies will now accompany maximum-security inmates in the courtroom.  Resiles is accused of binding Jill Halliburton Su, 59, at both the hands and feet and stabbing her to death during an attempted burglary in 2014. 

Death Penalty a Possibility for CA Man who Killed Toddler:  San Mateo County District Attorney Steve Wagstaffe is considering seeking the death penalty against a California man accused of sexually abusing and murdering his girlfriend's toddler last year.  The SF Examiner reports that David Contreras, 28, faces charges of murder and felony child abuse, among other charges, for the August 2015 sexual molestation and beating death of his girlfriend's 17-month-old daughter, who he claims died after falling from a changing table.  He pleaded not guilty at his arraignment on Tuesday, and a pretrial conference is scheduled for early December.  .

White House to Review Ban on Military Gear for Police:  Two police organization directors said Thursday that the White House has agreed to review last year's ban on the transferring of riot gear, armored vehicles and other military-grade equipment from the U.S. armed forces to police departments.  Julia Edwards of Reuters reports that Jim Pasco, executive director of the Fraternal Order of Police, and Bill Johnson, executive director of the National Association of Police Organizations, along with eight other police organization chiefs, met with President Obama and Vice President Biden on July 11, just days after a shooter gunned down five police officers in Dallas and days before three Baton Rouge officers were ambushed and killed, to urge reinstatement of military equipment to the police.  Under a May 2015 executive order, military equipment like helmets, grenades and tracked armor vehicles were banned amid public outcry of their use during protests in cities such as Ferguson, Missouri.  "The White House thought this kind of gear was intimidating to people, but they didn't know the purpose it serves," said Pasco.  White House chief legal counsel Neil Eggleston will review the ban.

And yet another wrongly maligned prosecutor is exonerated.

AP reports from Manassas, Virginia:

For much of the last 15 years, Justin Wolfe was both a death row inmate and a cause célèbre. His supporters, as well as a federal judge who heard his appeal, believed he was a victim of malicious prosecutors who covered up the truth in an effort to execute an innocent man.

Now Wolfe's 15-year legal saga -- which at one point had him days from execution and later on the brink of total exoneration and freedom -- has concluded with a 41-year prison sentence and an admission that prosecutors had it right all along.

*                       *                    *

After years of denying responsibility for the 2001 murder of Daniel Petrole, Wolfe on Wednesday apologized to Petrole's family in a packed Manassas courtroom.

"No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority."  -- Virginia Constitution, Article II, Section 1.

This provision is clearly intended to allow the Governor to restore voting rights, among other rights, upon an individualized determination that the person has actually "gone straight."  Is it limited to that?  Former Governor Tim Kaine (D) thought so.

Or does it empower a governor to effectively repeal the disqualification provision by entering a sweeping restoration of voting rights to all felons?  Present Governor Terry McAuliffe (also D) thinks so.  The WSJ has this editorial.

Why does Governor McAuliffe want more criminals to vote, whether they are rehabilitated or not?  Simple.  Criminals perceive -- correctly -- that on the whole Democrats are more likely to favor their interests as opposed to the interests of law-abiding people.  That tendency has been somewhat less pronounced in recent years than it was in earlier years, but the difference is coming back, as noted Bill's and my posts of Monday. 

Hence, criminals -- especially those who have not gone straight -- will vote for the Democratic Party in greater proportion than law-abiding people do, and in a close election the criminal vote may tip the scale.  After 2000, the Florida recount, and all that, we must recognized that such matters could have serious consequences.

The editorial notes that the Virginia Supreme Court heard arguments on the question Tuesday.

KS Officer Shot and Killed:  A Kansas City, Kan., police officer was fatally shot Tuesday afternoon while responding to a report of a drive-by shooting.  Fox News reports that Capt. Robert David Melton, 46, a 17-year veteran of the Kansas City Police Department, responded to a reported drive-by shooting and was shot and killed about a half-hour after the initial call when he pulled his vehicle up to a person matching the description of one of the suspects that had fled the scene earlier.  The suspect shot Melton multiple times before he could exit the car.  That suspect along with another are currently in custody and being questioned.  Melton's death marks the second time this year that a Kansas City police officer has been shot in the line of duty.  A police spokesman said it is too early to determine whether Melton's death is connected to the recent ambush attacks on police officers in Dallas and Baton Rouge.

Suspect in CA Homeless Attacks Could Face Death Penalty:  San Diego police made an arrest Friday of a man accused of attacking five homeless men, killing three of them, and prosecutors announced Tuesday that he could face the death penalty if convicted.  KPBS reports that Jon David Guerrero, 39, began his spree of assaults on July 3, brutalizing his victims as they slept on roadsides, in open areas and under freeway bridges.  In two cases, he set the victims on fire.  After Guerrero's arrest, which occurred shortly after the latest attack, detectives discovered physical evidence at the scene of the crime and at his residence linking him to the attacks and murders.  He is charged with three counts of murder and two counts of attempted murder, along with a special circumstance allegation of multiple murders.  Because of the special circumstance, he could face the death penalty or life in prison without parole if found guilty. 

Growing Number of Children caught in Gang Gunfire:  The list of young children across Chicago who have been shot continues to grow amid a year of surging homicides and shootings, with many of the incidents connected to gangs.  Don Babwin of the AP reports that through the end of June, 15 children younger than the age of 10 had been shot, seven more victims than at the same point last year, and four more have been shot since the start of July.  They are being shot doing "normal kid things" such as drawing on the sidewalk, playing with sparklers, walking hand-in-hand with their mother or sitting on the porch with their family.  Miraculously, no child has died as a result of the shootings across a city that has seen over 330 people killed in homicides this year.

CA's Elderly Parole Program Could Shorten Kidnapper's Sentence by 400 Years:  The convicted sex offender who kidnapped Jaycee Dugard could have his sentence shortened by some 400 years under California's elderly parole program.  Shirin Rajaee of CBS Sacramento reports that Phillip Garrido, 65, was sentenced to 431 years behind bars for the kidnapping and sexual assault of Dugard, who he abducted in South Lake Tahoe in 1991 and held captive at his Antioch home for 18 years.  But in February 2014, a federal court ordered the California Department of Corrections and Rehabilitation to implement a new parole program that made state prisoners who are 60 or older and have served at least 25 years of their sentence eligible for parole hearings.  Although Garrido will have to wait until 2034 for his first parole hearing, Dugard may then be forced fight it, as if she hasn't been through enough because of this man.

Station WOIO reports from Cleveland:

Hundreds of protesters and police took over Public Square in downtown Tuesday afternoon.

*             *            *

Activists from Black Lives Matter, Westboro Baptist Church and the KKK were in the square and, at one time, were said to be throwing urine at each other.

We probably shouldn't laugh, but I will anyway.  And I will take the Mercutio position on that dispute.

Other interesting nuggets:

Actor Billy Baldwin marched down Euclid Avenue with some protesters. He said he supports police and Black Lives Matter.

Huh?  How do you support one group of people and at the same time support a second group that openly calls for the murder of the first?

The Stand Together Against Trump group was expected to parade Tuesday afternoon at 1:30 p.m. A total of 0 protesters showed up. There were 15 media members, 17 preachers and several police instead. The group had a parade permit for up to 5,000 people.

Those who see criminals as victims tend frequently to complain about the collateral consequences of conviction.  And while it's true that there are likely to be such consequences if you're found guilty of, for example, being a smack pusher, con artist, strong arm or thief, etc., our opponents misapprehend the true source of the problem.  

The WSJ has this editorial, titled Clinton to Madison: Get Me Rewrite.

"Today, I'm announcing that in my first 30 days as President, I will propose a constitutional amendment to overturn Citizens United and give the American people--all of us--the chance to reclaim our democracy," Mrs. Clinton said in a taped speech to the Netroots Nation conference of progressives. First 30 days? Who knew the 225-year-old First Amendment was in need of such urgent revision?

Is amending the Bill of Rights fair game?  How about getting rid of the defendant's privilege not to testify in a criminal case?  Can we give it the heave-ho?  Probably not.

But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court.  Fair enough.  Let's have an amendment to scrape off all the barnacles attached to the criminal law and procedure provisions of the Bill of Rights that were not included in those amendments as originally understood.

First over the side is the Fourth Amendment exclusionary rule.  Miranda is next. 

Dump that stupid rule that the prosecutor cannot comment on the defendant's failure to testify.  Have you seen the prosecutor's closing argument in the BBC series Broadchurch?  Great fun.  Don't try this at home.  Almost makes you want to move to England.  Except for the wigs.

We're often admonished by the Left not to draw conclusions until all the facts are in. That's sound advice, in the abstract.  The problem is how it gets applied.  When a Jihadist engages in mass murder shouting "Allahu Akbar," we are told not to "jump to conclusions" about his motives.  But when a white policeman shoots an African American, it is assumed on the spot that the motive is racism.  This itchy eagerness to smear the cops was nowhere better illustrated  --  and its injustice nowhere more evident  -- than with Officer Darren Wilson in Ferguson, MO.  It is being repeated full bore with the shooting episodes in Baton Rouge and in Minneapolis, even though in each of those cities, as was the case early on in Ferguson, the full facts are not yet known.

Well, this is different.

One of the big cases, and big disappointments, of the last Supreme Court term was United States v. Texas, 15-674.  Texas challenged the Obama Administration's deferred action program for illegal immigrants.  Texas won in the Fifth Circuit, and the Supreme Court, minus the late Justice Scalia, divided 4-4.  That means the Fifth Circuit decision stands, but no Supreme Court precedent is established.  It is as if the high court had never taken the case up at all.

Now the Acting Solicitor General has filed a petition for rehearing asking for "rehearing of this case before a full nine-Member Court."  But who knows when the Supreme Court will have nine Justices again?  Is this a "springing" rehearing petition, filed now but activated only when a ninth Justice is confirmed?  Sounds like some dimly remembered nightmare from property law class.

Atlantic magazine features an article in which David Frum interviews Steve Teles, a liberal but thoughtful professor of political science at Johns Hopkins.  The article encapsulates Teles's new book (with co-author David Dagan) Prison Break, in which Prof. Teles describes "why conservatives have turned against mass incarceration."

The openness of conservatives to rethinking criminal justice is, to a significant degree, a function of the declining salience of the issue. Voters since the late 1990s simply haven't cared about it as much, as the great crime decline started to register. Voters will still tell you in polls that they think that our criminal laws aren't severe enough, but they also don't care about it as much. And that lack of strong concern creates space for politicians to move without fear of reprisal, and to be more entrepreneurial in their framing of the issue.

In One Day, Two Dead and 12 Injured in Chicago Shootings:  From afternoon until evening on Monday, two people were killed and 12 others wounded on Chicago's South and West sides.  The Chicago Sun-Times reports that the first shooting occurred at about 1 p.m. and the last at 11:48 p.m.  Among the victims were an injured 14-year-old boy, who was shot while standing on a sidewalk, and a 17-year-old boy, fatally shot in the street.  All of the other victims were young men in their 20s.

CO and Inmate Dead in PA Prison:  An altercation at a Pennsylvania prison Monday night left a correctional officer and an inmate dead.  The AP reports that the inmate has been identified as Tracy Gilliam, 27, who was serving time at Luzerne County Correctional Facility in Wilkes-Barre for failing to register as a sex offender.  The name of the officer has yet to be released, as requested by the family. The prison has been on lockdown since the incident occurred and both the district attorney's office and the police department are investigating the incident.

CA AG Offers two Definitions of Rape as Violent Crime:  California Attorney General Kamala Harris' recently released annual crime report revealed that violent crime jumped 10% in 2015 from the previous year, with a 36.1% increase in rape; however, another Harris document regards rape as a nonviolent crime.  Dan Walters has this piece in the Sac Bee saying that the other Harris document -- her official summary of Gov. Jerry Brown's criminal sentencing measure on the November ballot -- "merely parroted Brown's wording" and shows that she "didn't do her homework on how it starkly conflicts with her own agency's definition of violent crime."  Brown's measure would offer an easier path to parole for anyone convicted of a crime that is not classified as a "violent felony," including some forms of rape.  The measure limits its definition of  a "violent felony" rape to "sexual intercourse" by force, violence, extortion or threat but excludes several other forms of rape that Harris' crime report considers violent crimes, such as rape with a foreign object.  Walters criticizes Harris for playing "political games with slippery definitions of violent crime."

Myron Magnet has this article at City Journal.  The title is "The Anti-Cop President," but I think the points he makes about culture are even more important than the points about the police.

Any hopes that the nation's first black president could uplift the nation's black underclass went up in smoke Sunday when Barack Obama doubled down on his blaming of America's police for the recent cop massacres that amount, as Heather Mac Donald rightly says, to a war on cops.

*                   *                   *

The same spirit of elite racial contrition made generous welfare payments, with virtually no questions asked, seem like appropriate reparations for the long mistreatment of African Americans. In this way, government ended up enabling the spread of out-of-wedlock childbearing, which the culture had legitimated. But those fatherless welfare families proved far from ideal for raising successful, law-abiding children. What came to be called the cycle of poverty--single parenthood, school dropout, drug use, crime, non-work, welfare dependency--went into overdrive.

Legal academia is famous for its criticism of prosecutorial high-handedness. Employing the power of the state to serve the social or political goals of the prosecutor gets scorched as the fast road to, at best, arbitrary government  -- and, at worst, tyranny.

If [a prosecutor] believes a crime was committed and they believe they're sending a valuable message to the community about the value of a poor black man's life or what is appropriate responsibility for a police officer, there are benefits of this trial that can't be measured in convictions and acquittals. 

As Bill noted earlier today, the theme of the opening day of the Republican National Convention is Make America Safe Again.  Is America unsafe?  Is a change of direction needed?  Consider two graphs (click on them for larger views):

Amanda Lee Myers reports for AP:

Minutes after former Los Angeles County Sheriff Lee Baca acknowledged failing the public by lying to federal authorities investigating jail beatings, a judge overseeing his corruption case shocked a packed courtroom Monday by rejecting the ex-lawman's plea agreement as too lenient.

CA Gang Member on PRCS Arrested for Triple Homicide:  A documented gang member freed under California's AB 109 law was arrested last week for fatally shooting three people, including a nine-year-old, on July 8.  Doug Saunders of the San Bernardino County Sun reports that Trayvon Eshawn Brown, 26, was arrested last Thursday at the office of his probation officer for gunning down a nine-year-old boy, his father and another man outside a liquor store, allegedly motivated by an ongoing violent history between brown and one of the men.  Brown was on Post Release Community Supervision at the time of the shooting, stemming from a June 2013 conviction for an attempt to evade a peace officer with reckless driving.  Police Chief Jarrod Burguan said, "We're finding it's a reoccurring thing that we're making contact with these people who are freed on probation."  Brown was booked on suspicion of murder.

Judge Rails on Prop. 47 During Sentencing:  During a sentencing hearing for a man with a 20-year criminal history that escalated to a 2013 shooting that nearly killed a police officer, a San Diego judge voiced his strong opposition of Proposition 47, the California measure passed in 2014 reducing several felonies to misdemeanors.  Dana Littlefield of the San Diego Union-Tribune reports that Superior Court Judge Frederic Link said during Ignacio Canela's sentencing hearing that reduced penalties for drug crimes is "like taking the teeth out of the tiger."  Canela, 33, has a lengthy criminal history including convictions for auto theft, assault, burglary, drug possession for sale and, now, attempted murder.  However, because of Prop. 47, Canela was deemed to be entitled to some of the relief the measure provides and was allowed to have some of his lower felony convictions reclassified, resulting in a 54-year sentence instead of life in prison.  "This defendant is the perfect reason why Prop. 47 does apply and shouldn't be the law," said Link.

The Black Lives Matter movement took root principally in the shooting death of a an 18 year-old African American, Michael Brown, by white Ferguson, MO, Officer Darren Wilson. Wilson was tried in the press and convicted of racist murder:  The narrative was, "Hands Up, Don't Shoot": Wilson gunned him down in cold blood while Brown had his hands up in surrender.

The title of this post is the theme of opening night of the Republican National Convention. Although I have not been shy about criticizing Donald Trump on any number of fronts, I have to give him credit for insight, if not clairvoyance, in choosing tonight's theme.

This morning, the highest ranking police officer of the six charged in the Freddie Gray case, Lt. Brian Rice, was acquitted on all charges.

Many readers will already have heard about the episode today in which a "protester's" response to the police "murder" of Alton Sterling became, ummm, overly enthusiastic, resulting in an unfortunate situation that we could have avoided if the cops would finally own up to their years of racist oppression.

Pyramid schemes are illegal, but what exactly is a pyramid scheme?  Herbalife will not be called a pyramid scheme, according to its agreement with the FTC, but that will cost it 200 megabucks. That's a lot of protein shakes. 

David Benoit and Brent Kendall report for the WSJ.

One of the ploys that opponents of the death penalty use to try to block it -- given that the American people are solidly against their real position -- is to drag out the appeals process for decades and then claim that it is cruel to keep people on death row for decades.

This is called the Lackey claim for Justice Stevens's solo opinion in Lackey v. Texas, 514 U.S. 1045 (1995).  After Justice Stevens retired, Justice Breyer took up the cause.  He reiterated his position last night in the last minute appeal of Georgia murderer John Wayne Conner.  But he is still alone.  No other justice joined his dissent.

Conner was executed at 12:29 a.m. Friday with the single-drug method using pentobarbital, Rhonda Cook reports for the Atlanta Journal-Constitution.  Georgia can apparently still get pentobarbital, the preferred drug for this purpose, though most states cannot.

The lethal injection drug shortage is entirely artificial and due in large part to the misinterpretation of the Food, Drug, and Cosmetic Act by the D.C. Circuit in Cook v. FDA, 733 F.3d 1 (2013).  Congress can and should correct that misinterpretation with a simple fix.

After stumbling around a bit, Donald Trump has confirmed that Indiana Governor Mike Pence is his choice for running mate.  AP has this report.

As noted in yesterday's post, Pence is a solid guy and may be just what this ticket needs.

And, importantly, he has not quaffed the soft-on-crime Kool-Aid, something than cannot be said for everyone who was on the "short list."

It should not be news that a federal court of appeals sitting "en banc" has corrected an erroneous decision by a three-judge panel.  That's what the en banc process is supposed to do.  However, in the Court of Appeals for the Ninth Circuit it has long been rare that a rogue panel decision wrongly overturning a death sentence was even reviewed en banc, much less corrected.  At times, petitioning for such a rehearing has been considered such an exercise in futility that some AG offices would not even bother but would instead go straight the Supreme Court.  (The Supremes don't like that.)

Today we have the Arizona case of Eric Mann.  Mann baited two men to his house to sell them cocaine for $20,000, took the money, and then shot them both.

Murderer Suspect Escapes FL Courthouse:  A Florida murder suspect facing the death penalty escaped the Broward County Courthouse Friday morning, and an intensive manhunt is underway.  David J. Neal and Amy Sherman of the Miami Herald report that Dayonte Resiles, 21, escaped the courthouse after being brought there from jail for a hearing on a defense motion to remove the death penalty as a sentencing option.  Resiles is charged with first-degree murder in the home invasion killing of Jill Su, who was found with her hands and feet bound and fatally stabbed in her home in September 2014.  Resiles is also being prosecuted on five different felony cases in the county, involving burglary, grand theft and weapons possession.

Countries Refusing to Take Back Illegals May Face Aid Cuts:  Republicans and Democrats were unified in anger on Thursday at the Obama administration's lax immigration policies, demanding that the State Department punish countries that refuse to repatriate their citizens living in the U.S. illegally.  Stephen Dinan of the Washington Times reports that Republicans demanded that the State Department strip visas from the 23 most recalcitrant countries, and Democrats suggested that Congress cancel foreign aid to any county that refuses to cooperate with U.S. deportations.  A section of U.S. immigration law would allow officials to withhold visas from countries deemed uncooperative, a penalty which has been used only once against Guyana in 2001.  The State Department said that DHS Secretary Jeh Johnson is responsible for making an official request to withhold visas, but he has yet to make any.  A Connecticut case last year brought the issue to the forefront, when Haiti refused to take back attempted murderer Jean Jacques, who was subsequently released from custody and went on to murder a young woman months later.  Since 2013, 86,288 criminal aliens have been released into U.S. communities.

Here at C&C we have been strongly critical of the Black Lives Matter movement, and we will continue to be.  That group is not part of the solution, it is a major part of the problem.

Just to be clear, though, we do not deny that there are legitimate complaints of discriminatory law enforcement.  In this video, Senator Tim Scott describes his experiences.

Andrew Downs has this op-ed at the WaPo with the above title.

Donald Trump's presidential campaign has been unconventional, but naming Indiana Gov. Mike Pence as Trump's running mate would be a quite conventional move. Pence would balance the ticket in almost every way.

First, their personalities. Trump is unpredictable, forceful and, at times, impolite. Pence is predictable, some might say to a fault. Pence does not shy from a fight, but "forceful" is not a word that is used often to describe him. Pence is Midwestern polite.

Both of them have a knack for dealing with the media, but in different ways. Trump has honed his skills through decades of media exposure, as a business executive and as a reality television star. Trump is spontaneous and delivers an embarrassment of sound-bite riches. Pence has honed his skills as a talk radio show host, frequent guest on news and opinion shows, and as a speaker at political gatherings. Pence gets on message and stays there.

Liberals know that it will be harder than ever to sell sentencing reduction and other versions of criminal justice "reform" if crime is heading up.  This is the main reason they lie about our current, quite troubling crime statistics, see Kent's entry here and mine here.

Synthetic Marijuana Overdose Sends 33 to Hospital:  NYPD and NYFD had their hands full on Tuesday as the city's first responders picked up 33 people in the Brooklyn area who had collapsed on the sidewalks over an 11-hour period. Susan Scuttl of CNN News reports that the victims are suspected to have overdosed on K2, a type of synthetic marijuana, and suffered from lethargy, respiratory problems and altered mental states.  K2, or "spice," is a mixture of herbs, spices or plant material that is laced with THC, the psychoactive ingredient found in marijuana. Despite assurance from medical staff that it is unlikely for individuals to die from synthetic marijuana at this time, the drug is highly dangerous due to the inconsistencies that exist in the products used to create it. Likewise, the medical consequences for users of this drug are often unpredictable as well. Police believe that these incidents are related due to the close proximity of the victims to one another. No arrests have been made at this time.  In related news, the Senate overwhelmingly approved a bill Wednesday intended to change the way police and health care workers address opioid addiction.  The bill previously passed the house and will now be sent to President Obama.

GA to Execute 6th Murderer This Year:  Georgia will execute a death row inmate Thursday night after 34 years of imprisonment. Brett Rosner of WSB TV reports that John Wayne Connor killed his friend J. T. White in 1982 after a night of drinking and smoking marijuana led to a fight. Connor and his girlfriend tried to flee after realizing what had happened but were found hiding in a hay barn. White's badly beaten body was recovered in a drainage ditch. Connor will die by lethal injection of barbiturate pentobarbital and is the sixth person to be put to death in the state this year.

DHS, FBI Concerned about Violence at National Conventions:  The heads of the Department of Homeland Security and Federal Bureau of Investigation voiced their concerns Thursday about the upcoming Republican and Democratic national conventions becoming violent.  Andrea Noble of the Washington Times reports that DHS Secretary Jeh Johnson and FBI Director James Comey expressed worry during testimony before the Homeland Security Committee about "the prospect of demonstrations getting out of hand" and erupting into violence, as several groups have encouraged members to arm themselves at the upcoming Republican national convention in Cleveland.  FBI agents are closely monitoring for any potential threats of terrorism and Johnson plans to travel on Friday to Cleveland and Philadelphia to inspect the security at the event locations.  Both conventions will have a large security presence, including thousands of police officers and over 3,000 DHS personnel.  The security concerns come just one week after a lone sniper killed five police officers at the Black Lives Matter protest in Dallas.

Donald Trump has some problems from my point of view, but deserves credit for his choice of Indiana Gov. Mike Pence as his running mate.

Gov. Mike Pence toughened sentences for drug dealers Monday, signing legislation that would mandate repeat offenders serve at least 10 years if their crime involves methamphetamine or heroin.

The measure, House Enrolled Act 1235, was included in a bill-signing ceremony the governor held this morning at Hope Academy in Indianapolis, a high school for students recovering from drug and alcohol addiction.

"...I believe that any strategy to address drug abuse must start with enforcement. We need to make it clear that Indiana will not tolerate the actions of criminals, and I'm pleased to sign into law HEA 1235 to increase penalties on drug dealers."

Incoming PM Theresa May has chosen the outspoken pro-Brexit former mayor of London Boris Johnson as foreign secretary.  This article in the WSJ by Gabriele Steinhauser, Michael Wright, and William Horobin notes that Mr. Johnson had some undiplomatic things to say about certain continental European leaders during the campaign.

The primary relevance of the Brexit controversy to this blog is the propensity of the EU to meddle in domestic criminal law policies of nations, primarily its members but also nonmembers including the United States.

The outcome I would like to see is a "two-tier" Europe where Britain and other countries that are fed up with the Eurocrats can belong to something like the old European Economic Community (commonly known as the Common Market) that preceded the EU.  That would be a purely free-trade organization that would keep its mitts off domestic policy, including especially issues of crime and punishment.

I hope the appointment of Boris Johnson is a step in that direction.

"We flood communities with so many guns that it is easier for a teenager to buy a Glock than get his hands on a computer or even a book."
-President Obama, remarks at memorial service in Dallas, July 12, 2016

WaPo fact checker Michelle Ye Hee Lee has this article with the above headline, concluding with an award of Three Pinocchios (mostly false).

"A teen stripper, an arson and the case of the telltale potato."  No, it's not a new Hardy Boys mystery.  It's real life as reported by Ben Guarino in the Washington Post.  Stay in school, kids.

The Wisconsin Supreme Court held yesterday that the use of risk assessment measures in sentencing decisions does not violate due process as long as certain precautions are undertaken.  The case involves the use of COMPAS, a common measure used in many states to help guide sentencing decisions. 

There's much to mull on in this decision and plenty of commentary will likely be forthcoming, but one aspect deserves consideration. The defendant, Eric Loomis, challenged the measure based on its use of gender in arriving at its conclusion that he posed a high risk of recidivism.   As the decision highlights, it is not apparent how gender is calculated by COMPAS because the calculations are considered proprietary and are not disclosed.    The parties disagree whether gender is used as a criminogenic factor or merely for statistical norming, yet both agree that it is well known that men commit a disproportionate amount of crime.  

AP reports:

Ruth Bader Ginsburg says she regrets attacking Donald Trump, according to a statement Thursday from the Supreme Court justice.

"On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them," reads Ginsburg's statement.

"Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."

CJLF's current newsletter, the Spring/Summer 2016 issue, is now available on our website.  The newsletter describes the cases we have been involved in and the outcomes.

Hard copies are mailed to all our contributors, regardless of amount.

This is off topic, except to the (considerable, in my view) extent that the basics of criminal law cannot survive swimming upstream in a culture of casual rot.

Death Sought in NC Homicide Case:  A North Carolina man accused of killing an elderly woman and stabbing a man will face the death penalty at trial, set to begin in early September.  WXII 12 reports that Jordon Lowdermilk is charged with first-degree murder in the killing of Claudia Smith, 80, who was beaten to death in her home.  After killing Smith, Lowdermilk stole her car and crashed it on the interstate, and when a man, Bryan Mace, pulled over near the area of the crash site, Lowdermilk stabbed him.  Lowdermilk faces additional charges of assault with a deadly weapon inflicting serious injury with intent to kill, first-degree burglary and larceny of a motor vehicle.

Five Shot at Vigil for Baltimore Shooting Victim:  Four women and one man were shot in Baltimore Monday night while attending a candlelight vigil for another shooting victim.  Jessica Chasmar of the Washington Times reports that the victims, ranging in age from 20 to 48, sustained non-life-threatening wounds when a gunman opened fire into a crowd of 25 people who had gathered to honor Jermaine Scofield, 24, who was killed early Sunday in the same location.  No arrests have been made.

TN High Court Upholds Murderer's Conviction and Death Sentence:  The Tennessee Supreme Court last week upheld the 2010 conviction and death sentence of a man who murdered a married teenage couple over a decade ago.  WTVC reports that Howard "Hawk" Willis killed Samantha Leming Chrismer, 16, and her husband Adam Chrismer, 17, in 2002 and was later found guilty of two counts of premeditated murder and one count of felony murder in the perpetration of a kidnapping.  Willis was sentenced to death on each conviction, and the Court of Criminal Appeals affirmed the convictions and death sentences last year.  The latest ruling stems from an appeal Willis filed in October, arguing that his Sixth Amendment right to counsel was violated when the trial court admitted into evidence incriminating statements he made to his ex-wife, who he said was acting as an agent of the state at the time the statements were made.  The Tennessee high court held that Willis's right to counsel was not violated, as some of the incriminating statements made to his ex-wife were before his indictment when he had no right to counsel.  Further, other statements he made were from a jailhouse telephone, preceded by a recording informing him all calls are subject to monitoring and recording, so he implicitly consented to be monitored and recorded.

Some largely off-topic musings strolling down What-If Lane.

I felt a great disturbance in the Force.

The New York Times has an editorial (not an op-ed or a column, the newspaper's main editorial representing its position as an institution), headlined Donald Trump Is Right About Justice Ruth Bader Ginsburg.  Wow.  Who would have thought we would read the words "Donald Trump is right"  in a New York Times editorial about anything, but especially about one of the Left's favorite jurists.

Mr. Trump's hands, of course, are far from clean on the matter of judicial independence. It was just weeks ago that he was lambasting Gonzalo Curiel, the United States District Court judge overseeing a case against Trump University, saying that as a "Mexican," the Indiana-born judge could not be impartial.

All of which makes it only more baffling that Justice Ginsburg would choose to descend toward his level and call her own commitment to impartiality into question. Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.

Disturbance number two:  Your humble blogger agrees with an NYT editorial.  I can't remember the last time that happened.  Another previously reliable contrarian indicator goes awry.

The little boy in my last post had no words for what had happened to him.  President Obama, by contrast, had all kinds of words  --  words of understanding and sympathy for the grievance culture that brought the boy his father's casket.

From Dallas.

I've often said we don't need more data to know how to fight crime.  We already have 50 years of data.  When we have more police, more aggressive policing, and more incarceration, crime goes way down.  When we don't, it goes way up.  Those who refuse to see this are in denial  --  either that or they're lying.  From liberals, the defense bar, and the White House, there's plenty of both.

From the "interesting things stumbled upon while looking for something else" file is this article by Melvin Konner in the June 30 WSJ.

One of the most persistent and foolish myths is that people are naturally wonderful, and it is only society that screws them up.  A lot of wrongheaded notions on a variety of topics from parenting to crime control stem from this fallacious but widespread belief. 

The notion goes back at least as far as French philosopher Jean-Jacques Rousseau and his rhapsodizing about noble savages.  An earlier English philosopher, Thomas Hobbes, got it right when he said that life before civilization was "nasty, brutish, and short."  One common reason for it being short was other humans.  Konner's article describes the archaeological evidence.

People have to be taught and conditioned to respect the rights of others.  It doesn't come naturally.  Failure to properly civilize the young is the true primary "root cause" of crime, and the varying degrees of that failure in different subcultures is the primary reason for "disparities" in offending rates and incarceration rates.

New Technology Leads NYPD to Shooter:  NYPD officers were able to pinpoint shots being fired in Crown Heights on the day after they were alerted by ShotSpotter, a new technology contributing to advances in investigative techniques.  Chanel Ali of the Brooklyn Reader reports that ShotSpotter is a gunfire detection system that will report incidents involving gunfire that may not have otherwise been reported.  This is accomplished by the strategic placing of microphone-type devices on metropolitan streets to triangulate loud noises and determine their origin within a matter of moments.  Members of ShotSpotter's headquarters, located in California, then analyze these noises and proceed to notify police if there is a real threat.  It cost New York City $1.5 million to install roughly 300 microphone sensors in 10 Brooklyn precincts and seven Bronx precincts with high gun violence as part of a pilot program.  The investment paid off on Sunday when officers were notified of shots fired and encountered Paul Mathurin, 31, who engaged in a standoff with police that eventually ended after he was shot in the hip and detained.

Study finds no Racial Bias in Police Shootings:  A study released this month by a Harvard professor found no evidence of racial bias in police shootings, despite finding that officers were more likely to have physical interactions with non-whites over whites.  Valerie Richardson of the Washington Times reports that Harvard economics professor Roland G. Fryer Jr.'s study for the national Bureau of Economic Research, "An Empirical Research Analysis of Racial Differences in Police Use of Force," collected data from 10 large police departments in six Texas cities, three Florida counties and Los Angeles County, as well as New York City's Stop, Question and Frisk program.  After examination of thousands of incidents, the study concluded that, while blacks and Hispanics were 50% more likely to experience physical interactions with police, such as touching, pushing and drawing weapons, there was no greater likelihood of officers shooting non-whites than whites after factoring in extenuating circumstances.  The paper supports an earlier study conducted by Washington State University that found officers in simulation tests were actually less likely to shoot at blacks than whites, and also challenges the Black Lives Matter narrative that police are racists targeting blacks for shootings.

A prominent legal blog has this entry:  "Why Capital Punishment Is No Punishment at All."  I'll quote the entry verbatim:

Capital punishment has generated an incredible amount of public debate.  Is the practice constitutional?  Does it deter crime?  Is it humane?  Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society's most severe punishment.

In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy.  In fact, it is no punishment at all.  My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished.  By drawing upon the philosophical literature regarding death, I show that this is not the case.  Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.

This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad.  There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation.  By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.

Judge Lawrence Waddington (L.A. Superior Court, Ret.) has this provocative essay at LinkedIn.  He goes through the well-known (to readers of this blog) misuse of habeas corpus jurisdiction by the Ninth Circuit and calls for an end to it.

The time has come for the Supreme Court to reinterpret federal habeas corpus law and remove the 9th Circuit from any further jurisdiction over state court decisions. Not only will removal reduce the endless appeals of 9th Circuit mandated retrials and the cost and interference with state sovereignty, the record would confirm finality of state court judgments and stop the endless reversals resulting in injustice. No reason justifies two jurisdictions trying the same case twice.

I agree that federal habeas review of state court judgments is doing more harm than good in California and in some other places.  I don't think the Supreme Court has the authority to make the call any more, though.  During the period from Reconstruction through the mid-twentieth century, the Supreme Court did expand the use of habeas corpus to make it a mechanism to collaterally attack in federal court the judgments of state courts of general jurisdiction.  That use of the writ was not permitted at common law or under the initial federal system, and contrary to myth it was not authorized by the 1867 act.  (That is a long story I have written about extensively elsewhere and won't repeat here.)  However, a lot of legislative water has passed under the bridge since then.  In 1996, Congress expressly considered the three-way choice of de novo review, no review, or deferential review and chose the latter.  I don't think it is up to the judiciary to alter that choice, particularly not on a state-by-state or circuit-by-circuit basis.

Politically, I don't think it would be wise to bring the matter up in Congress at all at this time.  The final product could easily move us in the wrong direction.

The brilliant Prof. Richard Epstein takes a look at President Obama's handling of possible instances of gross police abuse, and the ambush murders of five policemen in Dallas:

Many have praised President Barack Obama for what they regard as his measured remarks on the killings in Louisiana and Minnesota,..But the President's carefully crafted message may well have prejudged the situation in Minnesota, as it did with Trayvon Martin and Michael Brown.

To be sure, he ends his speeches by saying some version of: "We have extraordinary appreciation and respect for the vast majority of police officers who put their lives on the line every day." But the words ring hollow when they follow his indictment of police for institutional racism. The killings in Louisiana and Minnesota, he said, were not "isolated incidents," but were "symptomatic of a broader set of racial disparities in our criminal justice system."  But that linkage has just not been established in these two most recent cases.

No one should be foolish enough to say that the criminal justice system is beyond improvement...But the matter has to be kept in perspective. We are not living in the age of Jim Crow. The first thing that the President should do is acknowledge the enormous progress that has been made. Instead, he lists a dubious set of statistical claims: blacks are pulled over more frequently for traffic stops, and they are subject to higher arrest rates for homicides. Obama has rightly been criticized on this front by the ever-alert John Lott for ignoring the underlying rate of violations, especially in connection with arrest rates for homicide, which are twice as high for blacks even though they are six times as likely than whites to commit homicide. Underenforcement looks like the more serious charge.

Jason Riley has this commentary in the WSJ.  Here are some excerpts.

President Obama is scheduled to speak in Dallas Tuesday at a memorial service for the five police officers gunned down last week--but haven't we already heard enough from him?

*               *              *

Time and again during his presidency, in matters large and small, Mr. Obama has assumed the worst about police.

*               *              *

Like others on the political left, Mr. Obama has made a habit of minimizing or ignoring the high black crime rates that obviously underlie tensions between poor minority communities and cops. More than 95% of black shooting deaths don't involve the police, which would seem to undercut the notion that trigger-happy cops are hunting black men. Sadly, rates of murder, rape, robbery, assault and other violent crimes are 7 to 10 times higher among blacks than among whites, but liberals who don't want to alienate black voters go to great lengths to explain away this behavior and focus instead on police conduct.

Yes, Mr. Obama has denounced what happened in Dallas, but he has also been winking at a Black Lives Matter movement that has spent the past two years holding rallies that call for (and sometimes feature) violence against cops. Like the president, these protesters maintain that the police are motivated by racial prejudice, not by the behavior of suspects. They insist that a biased criminal-justice system explains the black crime rate, not antisocial behavior. By indulging this narrative, Mr. Obama and his fans in the liberal media were playing with fire, and the Dallas carnage was the result.

I argued in my last entry that Leftists, and not a few libertarians, are lying their way toward their goal of criminal justice "reform."

At this late stage of a demented, deceitful game, I probably should be unsurprised that the ambush murder of five policemen by a venom-filled black radical is used as the springboard, not to demand accountability for the hate peddlers and the violence they breed, but to upbraid police and suggest that the answer is easier access to drugs. That's fine  -- I guess  --  for libertarian ideologues.  It's something else for the President of the United States.

In his remarks in Spain, Obama decried "the larger, persistent problem of African Americans and Latinos being treated differently in our criminal justice system." Yet there is no disparate treatment; this is Obama's big lie. It's not just Obama's, of course, but Obama has adopted it as his own and turned it to his own uses. It's all about "fundamental transformation."

Racial disparities permeate the criminal justice system. They do not derive from police misconduct or a broken criminal justice system. They derive from underlying behavioral disparities. Racial disparities in the criminal justice system reflect the underlying behavioral disparities. Obama's "cause," as he refers to it, is founded on a poisonous lie.

As mentioned in my previous post, there is a second case challenging the death penalty on dubious facts, State v. Villalobos in Maricopa County Superior Court.  The State's opposition to the defense's motion to dismiss is here.

Man Who Killed Retired Cop Serves One Year:  A man who drunkenly ran down and killed a retired Stockton police officer nearly two years ago will be released next month after serving barely one year of his four-year sentence, the officer's family learned last week.  Rowena Shaddox of Fox 40 reports that Officer Jimmy Pendergrass, a 46-year veteran of the force, was fatally struck by Sergio Chavira in December 2014, two days before Christmas.  Chavira, who has a history of drunken driving convictions, drove off, leaving Pendergrass to die.  He was convicted of misdemeanor vehicular manslaughter after he claimed the killing was an accident and that he panicked when he drove off.  Rather than serving his four-year sentence in prison, Chavira's classification placed him at a fire camp, where he served just 190 days, receiving credit for double that time.  Next month, he will be a free man.

After Dallas, U.S. Police Forces Rethink Tactics:  Following the deadly rampage in Dallas last week that claimed the lives of five police officers, 13 of the country's 30 largest cities have ordered their police officers to work in pairs in an effort to boost safety, which is just one of several tactics to be implemented by U.S. police departments.  Nick Carey of Reuters reports that although most police departments are not publicly divulging specific tactics, citing safety reasons, a few have shared some strategies that are being considered; Indianapolis' police department said it would consider using robots to deliver lethal force, a tactic unheard of until it was used last week on the Dallas shooter, and Denver's police union wants officers to wear riot gear for local protests and be armed with AR-15 assault rifles while on patrol at the Denver International Airport. Last Thursday's attack in Dallas came during protests over the police shootings of two black men, Alton Sterling, 37, of Baton Rouge and Philando Castile, 32, of St. Paul, Minn, who were killed in the days before the Dallas massacre.  In addition to the five fallen officers, seven others were injured, making it the deadliest assault on U.S. law enforcement since the Sept. 11, 2001, attacks.

Two Gitmo Detainees with al Qaeda Links Released:  The Obama administration released two more Guantanamo Bay detainees affiliated with Islamic terrorist groups over the weekend, announcing Monday that they will now be detained in the Republic of Serbia instead of the facility in Cuba.  Diana Stancy of the Washington Examiner reports that Muhammadi Davlatov of Tajikistan and Mansur Ahmad Saad al-Dayfi of Yemen were transferred Sunday after unanimous approval by the Guantanamo Review Task Force, made up of six federal departments and agencies.  Davlatov, an admitted member of the Islamic Movement of Tajikistan, has ties to senior al Qaeda members, received training from al Qaeda training camps and was in possession of documents on how to make explosives, chemical agents and poison when he was captured.  Al-Dayfi, an admitted member of al Qaeda, had prior knowledge of the Sept. 11, 2001, terror attacks, was aware of other attacks against U.S. interests and received training at an al Qaeda camp.  Several officials, including members of Congress, are concerned with the process of transferring detainees, noting that once transferred, they can no longer be tracked; just last month, a prisoner was released to Uruguay and disappeared.  Since 2009, the Obama administration has resettled over 100 Guantanamo detainees in 30 countries with the objective of closing the facility, which now holds only 76 prisoners.  

The opponents have some significant advantages in the death penalty debate.  They have nearly all of academia on their side as well as the bulk of American journalism.  They can assert things as "facts" and rarely get challenged on them. 

A year ago, Justice Breyer wrote a dissent in Glossip v. Gross, saying, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."  What follows is a recitation of all the claims that have already been rebutted but with no mention of the rebuttals.

A funny thing happens on the way to the courthouse.  When these claims are asserted as a basis for a legal argument rather than an attempt to sway public opinion, then a government with the resources to do so makes the contrary case, and the claims regularly go down in flames.  The Supreme Court's decision in McCleskey v. Kemp is remembered (often with outrage on the Left) for holding that even assuming that the Baldus study's finding of race-of-victim bias in capital sentencing was correct McCleskey still didn't have a claim.  Nearly forgotten is the finding of fact by the Federal District Court that the study's data, when correctly analyzed, showed nothing of the sort.  See my 2012 OSJCL article for the details on this and other studies in the area.

The federal capital case of United States v. Fell is now pending retrial in Vermont.  The defense wants the trial judge to declare the federal death penalty unconstitutional, citing all the usual claims.  The court is holding a two-week hearing this week and next to decide the underlying facts.  If the government pulls out all the stops putting on evidence and if we get a fair decision, this could be a major advance for the pro-death-penalty side, with findings of fact that most of the claims cited in Justice Breyer's opinion are actually false.

Wilson Ring has this story for the Associated Press.

There is a second case in Maricopa County (Phoenix and vicinity), Arizona, where the defense has cited the infamous "innocence list" and the prosecution is putting on evidence as to just how many of the supposedly "exonerated" actually did it.

There's a good deal of nose-in-the-air discussion going on about how the police should be held accountable for abusing the rights of citizens.

I haven't posted on the shootings of the last week because, frankly, what little I have to say at this point has been said well by others.  Matthew Hennessey has this article at City Journal. Here is the concluding paragraph:

The anti-cop Left never hesitates to run with its preferred narrative--that racist police are hunting down young black men and murdering them. But those with an interest in truth and justice should wait for the facts. It could turn out that the killings of Alton Sterling and Philando Castile were entirely unjustified, much like the 2015 death of Walter Scott, shot eight times in the back by a North Charleston, South Carolina, police officer as he tried to flee. Or, it could turn out that Sterling did have a gun, and that Castile either argued with the officer or disobeyed his instructions (which may or may not justify the officer's actions). We just don't know yet. Until we do, reckless allegations and media-driven narratives won't do us any good. 

In the same publication, Bob McManus has this article:

Baton Rouge and St. Paul, like so many of the similarly tragic police-custody deaths that preceded them, may have been the product of circumstance, or of incompetence, or maybe they were even crimes. Each must be examined in context and judged accordingly. But Dallas was cold-blooded murder--nothing more, nothing less. Attempts to assign equivalence to the horror of it--to suggest, as some are doing on social media, that Dallas is somehow just deserts for Baton Rouge or St. Paul or Baltimore or Ferguson, or even for Eric Garner's death on Staten Island two long years ago--is morally repugnant.

A:  Absolutely not.  The people who get sent to prison earn their way there, and keeping them segregated from civil society for longer terms has contributed significantly to the enormous (but now jeopardized) drop in crime over the last generation.

It is not easy to land in an American prison. Most convicted felons never reach prison, and those who do are typically repeat offenders guilty of the most serious violent and property crimes. The system sends very few people to prison for simple drug possession. Drug-related convictions do not disproportionately harm the black community. To the contrary, if all drug offenders were released tomorrow, there would be no change in the black share of prisoners.

We do know, however, that putting the most dangerous criminals behind bars reduces victimization for crime-plagued communities. As the incarceration rate for violent felons has increased, crime rates have plunged, saving countless lives and improving public safety--especially in minority neighborhoods. California, which is experimenting with "deincarceration," is already seeing years of progress on public safety reversed in a matter of months.

I have from time to time recommended reading Doug Berman's blog, Sentencing Law and Policy.  It's not just that Doug has wonderfully eclectic sources; it's that his commenters  -- overwhelmingly on the defense side  --  every now and again pull back the curtain on what goes on in the pro-criminal mind.  There was a beauty this afternoon, in a discussion thread about where responsibility lies for the Dallas police massacre.  Readers will guess correctly that it was not with the sniper or snipers.

The apologies should cascade from all the sanctimonious prosecutors and authoritarian badge lickers who wear black robes who have established a legal superstructure (via decisions not to prosecute and case law) which fails to hold murderers with badges accountable. A substantial portion of the American citizenry does not believe the justice system is legitimate--and that is a very real problem. Where those who are aggrieved have no effective outlet to address those grievances, other outlets will appear.

This is the headline in this morning's USAToday:  "26 Police Killed So Far in 2016, Up 44% from 2015."  

Cops in Major U.S. Cities to Patrol in Pairs:  Following the Thursday night rampage in Dallas, in which a gunman opened fire on 12 police officers, killing five of them, officers in other major U.S. cities around the country will begin patrolling in pairs.  Kelly Cohen of the Washington Examiner reports that departments in Washington D.C., Las Vegas, St. Louis, New York City, Philadelphia, Boston, Chicago and Burlington, Vt., have ordered their patrols be conducted in pairs.  D.C. Police Chief Cathy Lanier said that the order will help officers, most of whom patrol alone, feel much safer.

SD Inmate's Death Sentence Upheld:  A federal court upheld the death penalty Thursday for a South Dakota murderer who was sentenced to death over two decades ago.  Tiffany Tan of the Rapid City Journal reports that Charles Russell Rhines, 59, was sent to death row in 1993 for the slaying of Donnivan Schaeffer, 22, in March 1992.  Rhines bound and stabbed Scaeffer after he walked in on Rhines burglarizing the donut shop where Schaeffer worked part-time.  Rhines has had previous appeals rejected, and the latest ruling by the South Dakota U.S. District Federal Court denied Rhines' request to overturn his conviction.  He can now file a notice of appeal within 30 days to the U.S. Court of Appeals for the 8th Circuit and the U.S. Supreme Court, though he must get permission from the federal court to do so.

I noted in my last post that, when you peddle hatred of the police, you get hatred of the police. This is not rocket science.  

A year and a half ago, protesters about "police violence and racism" were honest, for once, about specifically what they seek:  "What do we want?  Dead cops!  When do we want it? Now!"  The video is here.

At least five Dallas police officers were killed and seven others wounded Thursday evening as a protest over recent police shootings was interrupted by chaos. The Dallas police chief said an attacker told authorities "he was upset about the recent police shootings" and "wanted to kill white people, especially white officers."....

[The five officers] were killed by "snipers" perched atop "elevated positions," officials said.

Videos circulating on social media showed an individual with an assault-style rifle shoot a police officer in the back at point-blank range.

There doesn't seem to be a flash transcript of today's hearing in its entirety, but CNBC does have a transcript of the exchange between FBI Director James Comey and South Carolina Representative Trey Gowdy, both former prosecutors.  I will paste it after the break.

Donald Trump said "crime is rising," and PolitiFact rated that statement "Pants on Fire."  Eugene Volokh looks into it.

It seems that PolitiFact based its rating on the fact that crime has been on a long downward trend overall for the last 25 years.  Volokh writes,

I don't find this a persuasive defense. If the original PolitiFact post had said something like, "The violent crime rate has plummeted in the past 25 years, and while it may have been increasing in the last year and a quarter, that could easily be an anomaly, and our data on that are just preliminary and may not be sound," I would have thought it a sensible criticism of Trump's assertion. We should indeed be cautious about data that are limited to one year, or (as with the 2016 first-quarter data) to a subset of jurisdictions. There is some degree of short-term variation within any long-term trend; data from a year and change aren't really enough to tell whether 1) the long-term violent crime decline has been reversed, or 2) the year was just an anomaly and the decline will continue, or at worst, the violent crime rate will remain flat. For instance, the violent crime rate increased in 2005 and 2006, but those proved to be just small blips in an otherwise substantial decline.

Question 1:  Under what circumstances will Barack Obama's Justice Department charge and convict you, and seek and obtain a prison sentence, on the basis of a crime (production and shipment of infected produce), that you committed out of gross negligence, but without criminal intent?

Chicago on the Brink: Manhattan Institute scholar Heather MacDonald makes a compelling case against the "Black Lives Matter" narrative and the tragic consequences of tarring proactive policing as racist in this City Journal article. In Chicago, the ACLU and civil rights leaders have demanded a reduction in traffic stops and public interactions by police officers because the subjects are mostly black. As a result, urban violence and shootings have reached record levels and the vast majority of the perpetrators and victims are mostly black. MacDonald quotes a black, middle aged, former drug addict whose son was shot and killed last year, "I've been in Chicago all my life. It's never been this bad. Mothers and grandchildren are scared to come out on their porch; if you see more than five or six niggas walking together, you gotta run."

SC Man Dies After Standoff with Police: A North Charleston man died after being shot in a standoff with officers on Tuesday, ABC News reports. Police engaged in a gun battle with William Tracy Patterson, 34, when they responded to a call about a driver who was trying to run a pedestrian over. Officers located the vehicle and were fired upon by Patterson from his second-floor window, which struck and injured Officer Wayne Pavlischek. Officer Pavlischek was wearing a bulletproof vest and sustained non-life-threatening injuries. Patterson was shot as he emerged from his home firing at officers and was transported to Trident Medical Center.

Future of Death Penalty in the Hands of CA Voters: This November California's voters will get to weigh in on the controversial death penalty debate. Karma Dickerson of Fox 40 News reports that the state will be offering two very different options for its voters that include: the Death Penalty Reform and Savings Act and the Justice that Works Initiative. The "Death Penalty Reform and Savings Act" calls for a faster execution process that will impose new requirements and deadlines onto the courts and will house inmates in less expensive, non-death row housing until their execution date. It will also require inmates to work and pay restitution. The "Justice that Works" initiative would repeal the death penalty and commute the sentences of condemned murderers to life without the possibility of parole. Proponents claim this will save roughly $150 million annually. Executions have been on hold for a decade as California has been developing a new lethal injection protocol, leaving 747 murderers on death row.

The Yolo County D.A.'s Office recently launched a website that is designed to inform the public about "non-violent second strikers" who have been granted early release from state prison.

Yolo County District Attorney Jeff Reisig stated that "Most citizens have no idea that serious criminals are being released from prison early under these new state programs.  Many of these individuals have very violent criminal histories and continue to pose a danger to our communities.  Our new website link is designed to inform the public and improve the transparency of the state's early release decisions."

A press release about California's early release problem and the new website is here.

Big thumbs up to District Attorney Reisig and the Yolo County D.A.'s Office!

A mostly off-topic political note.  On June 26, Fred Barnes had this op-ed in the WSJ, contending, "Donald Trump has committed the Barry Goldwater mistake....  Goldwater wouldn't seek to reconcile with his GOP opponents in the cause of party unity."  Today there are three responsive letters to the editor, including one by your humble blogger.

1.  You said that no reasonable prosecutor would have brought a case against Sec. Clinton on the facts you found.  But four well-regarded former federal prosecutors  -- Attorney General and Judge Michael Mukasey; former Deputy Attorney General Rudy Giuliani; former Division Chief Andy McCarthy of the USAO for the Southern District of New York; and former Appellate Chief for the Eastern District of Virginia (now Georgetown Law Professor) William Otis have all said that a prosecution could have been brought and probably would have succeeded.  Do you think these are all unreasonable judgments?

OH City sees 15 Overdoses in 10 Hours:  By 10:30 p.m. on Tuesday in Akron, Ohio, 15 suspected heroin overdoses had been reported throughout the city in just 10 hours, among them a woman and her two daughters.  Steph Solis of USA Today reports that so far this year, 55 people have died in Akron as a result of a heroin overdose.  The number of heroin-related overdose deaths have steadily increased since 2012, when 44 people died of heroin-related overdoses; and between 2002 and 2008, only 40 people suffered a fatal heroin overdose in that lengthy time frame, illustrating the crisis-level epidemic sweeping the nation.  The epidemic gained national attention last year, when it was reported that heroin deaths quadrupled across the country.  Federal regulators are to announce Wednesday of a plan to urge Congress to approve $1 billion in funding for increasing treatment programs across the U.S. 

Murderer on the Loose in CA:  The San Diego Police Department is looking for a person of interest suspected of attacking at least four homeless men, two of whom died, leaving San Diego's transient community is on edge.  Fox News reports that police describe the suspect responsible for he "senseless, random" attacks as "extremely dangerous."  All four victims suffered extensive damage to the upper torso of their bodies, with the latest victim's body set on fire early Wednesday.  He is not expected to survive.  A surveillance video of the unidentified man has been released and he is believed to be somewhere between 30 and 50 years old.  The suspect's motive is unclear.

CA Parolee Charged with Assault, Attempted Murder:  A parolee arrested last month for forcing his way into a Hollywood retirement complex and attacking an 80-year-old woman was arraigned Tuesday on several charges, including attempted murder.  Kate Mather of the LA Times reports that Marcus Datwione Peete, 33, forced his way into the elderly woman's apartment in the early morning hours on June 18 and proceeded to beat and sexually assault her before running off.  Armed with surveillance footage from the complex, the LAPD went public with its search on June 22, but Peete was already in custody, having been picked up the day after the assault on suspicion of violating his parole.  Peete's lengthy criminal record includes convictions for battery and exposing himself in public.  He is currently charged with attempted murder, assault, burglary and sexual penetration by a foreign object.  He faces up to life in prison if convicted.

Peter Holley reports for the Washington Post that "Day-care worker who raped toddlers on video actually a 'charming young lady,' lawyer says"...Really?  A charming young lady?  She videotaped herself sexually assaulting multiple babies and toddlers, then sent the footage to her convicted Tier II Sex Offender boyfriend.  Her boyfriend was on probation for pandering obscenity involving a minor in 2011.  Heather Koon pleaded guilty to four counts of rape, kidnapping, pandering obscenity involving a minor, plus other crimes involving illegal use of a minor in nudity-oriented material.  However, she pleaded not guilty to specifications labeling her a sexual violent predator.  That will be determined at a future hearing.  If so designated, she will receive a mandatory life sentence without parole.

I have reopened the facility for commenters to register with the blog and establish a username and password.  The usual email confirmation process applies.

I encourage frequent commenters to use this method of signing in rather than Yahoo so that comments will be identified with a recognizable handle instead of the string of garbage that Yahoo incomprehensibly assigns.

To register, go to the comments on any post, press "Sign in," then "Sign up" and the bottom of the sign-in page.

Hopefully the gremlins that have caused software glitches in the commenting system will remain dormant until we replace the blog software altogether.

A:  In my opinion, based on publicly known facts, he did.  There was probable cause to believe Ms. Clinton committed one (or more likely, numerous) felonies, to wit, illegal exposure of classified information through gross negligence, in violation of 18 USC 793(f). And if one is of the view, as I am, that the very unusual and prominent features of this case warrant taking into account more than "merely" the existence of probable cause, it seems to me that those circumstances  -- principally the need for accountability from high officers of the government and public confidence in equal application of the law  --  suggest even more strongly that an indictment should have been recommended.

Comey's explanation was odd and unpersuasive on its face. He began by reciting what the law requires for a felony or misdemeanor conviction in cases like this. He noted that gross negligence is the standard for a felony conviction. He then recited the facts as the FBI found them. These facts suggest gross negligence.

When it came time to merge these two strands and present his decision whether to prosecute, Comey made no reference to the legal standard he had articulated a few minutes earlier. Instead, he pulled a switcheroo, formulating a new legal standard based on the elements he says have been present in past cases where prosecutions have been brought for the mishandling of secret/classified information. Gross negligence exited stage left -- replaced by intent to harm the U.S., disloyalty, etc.

Byron Tau has this article in the WSJ comparing findings from FBI Director Comey's statement with earlier statements by Hillary Clinton.

Update:  Also in the WSJ, former Attorney General Michael Mukasey has this op-ed headlined Clinton Makes the FBI's Least-Wanted List: Explaining why he wasn't recommending prosecution, Director James Comey instead showed that charges would have been justified.

Hillary Clinton today escaped an FBI recommendation that she be indicted.  Many of my conservative friends are furious.  Whether they're right to be is not my point here.  

Hillary Clinton Skirts Charges:  Despite evidence pointing to Hillary Clinton being "extremely careless" in her handling of classified emails on her private server, the Department of Justice will not bring charges against her, FBI Director James Comey announced Tuesday.  Fox News reports that the FBI reached the judgement that "no reasonable prosecutor would bring such a case" after an hours-long interview of Clinton three days ago that served as its final step in its yearlong investigation into her mishandling of classified information.  The controversy first came to light over a year ago when it became public knowledge that Clinton used a personal email and server to send and receive classified information.  While Clinton claimed she used her personal server as a matter of "convenience," others said she did so to circumvent government systems in an effort to shield her communications from public record requests, putting sensitive and highly classified government secrets at risk.

Chicago has another Bloody Holiday Weekend:  Another violent holiday weekend swept Chicago, with a total of four people shot to death and 60 others wounded as the Fourth of July weekend came to close.  Peter Nickeas of the Chicago Tribune reports that the victims, half of whom were shot in the final 15 hours of the weekend, included three injured children ages five, eight and 11.  Most of the shootings occurred in the West and South side neighborhoods that endured the majority of the violence during the Memorial Day weekend.  This weekend's toll was slightly lower than last Fourth of July, when 10 people were killed and 55 others were wounded.  The year before that, 16 were killed and 66 injured over the Fourth of July weekend.

Drunk Driver Injures 2 La. Cops, Kills 1:  A drunk driver swerved into three Sterlington, La., police officers on Sunday morning, leaving one dead and two wounded.  Tim Stelloh of NBC News reports that Officer David Elahi was pronounced dead at the scene after being struck when Tracy Darnell Govan's pickup truck crossed into the shoulder of a highway where the officer was conducting a traffic stop.  The collision ripped the doors off of the patrol vehicle and wounded two other police officers who are being treated for non-life-threatening injuries. Officer Elahi had only one last full-time shift scheduled before he was to retire from his duties as a police officer.  Govan has been charged with vehicular homicide and vehicular negligent injury, along with other counts.  He was released from custody Sunday on undisclosed bond.

Kate O'Keeffe and Byron Tau report for the WSJ:

FBI Director James Comey said Tuesday that Hillary Clinton was "extremely careless" in handling classified information while secretary of state and said scores of emails on her personal server contained highly classified information--but he said the FBI won't recommend criminal charges against her.

*              *             *

While the announcement is a major positive development for the Clinton camp, Mr. Comey's comments were hardly uncritical of the presumptive Democratic nominee, saying she and her State Department colleagues were irresponsible in their handling of national secrets.

"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information," Mr. Comey said.

Director Comey's statement is here.

WASHINGTON, D.C. -- About six in 10 Americans favor the use of the death penalty for a person convicted of murder, similar to 2014. This continues a gradual decline in support for the procedure since reaching its all-time high point of 80% in 1994....

These results come from Gallup's annual Crime poll, conducted Oct. 7-11, 2015. While the public has, with one exception, favored the death penalty over the 78 years Gallup has asked this question, support for the measure has varied considerably. The low point for support, 42%, came in the 1960s, with support reaching its peak in the mid-1990s and generally declining since that point. Over the past decade, however, there has been minimal fluctuation in the percentage of adults who favor the death penalty, with support always at or above 60%.

California's ballot propositions have their numbers now.  If you want to vote against the soft-on-crime nonsense that is likely responsible for the surge noted in the two previous posts, vote Yes on 66 (Fixing the Death Penalty), No on 57 (the Jailbreak Initiative), and No on 62 (Repealing the Death Penalty).

The previous post noted the increase in homicide in California in 2015 over 2014.  The increase extends to every category of crime tracked except burglary, according the annual Crime in California report, also released today by the Bureau of Criminal Information and Analysis.  Annual changes in rates of reported crime per 100,000 population are:

Homicide	+9.1%
Robbery	+6.9%
Agg. Assault	+6.6%
Burglary	-4.1%
Auto theft	+10.9%
Theft	+9.1%

The number for rape is also up sharply, but the extent to which that is an increase in crime versus a broadened definition of which sexual assaults are counted in the category is uncertain.

None of this should surprise anyone who has been paying attention.  After Realignment, we had numbers in the next few years that fluctuated but overall were considerably worse than the national numbers.  See this post.  Auto theft in particular spiked after Realignment made it a never-prison offense.  See here and here.  After Proposition 47, anecdotal information from law enforcement has been steadily rolling in.  Now we see confirmation in statewide numbers.

These soft-on-crime changes are disasters, and people are paying for them in blood and hard-earned property.

The number of murders in California jumped nearly ten percent from 2014 to 2015, according to the annual Homicide in California report released today by the Bureau of Criminal Information and Analysis. A total of 1861 people were murdered in state in 2015, up from 1697 in 2014, a 9.7% increase.  Due to an increase in population, that works out to a 9.1% increase in murders per 100,000 population.

We have discovered that a glitch in the blog software has resulted in post authors not being informed of new comments to their posts.  For that reason, some valid comments by commenters who have not been designated "trusted" and thus requiring approval for publication have not been published. 

I just published a bunch of them.  We will work on either fixing the problem or finding a workaround.

Alex Matthews has this story at Capitol Weekly on the dueling California death penalty initiatives.

Yesterday I predicted that the opposition to the initiative to fix California's death penalty would be dishonest.  I did not expect to be proved right so quickly.

The opposition's press release says, "Due to its arbitrary application and other factors, the death penalty does not achieve any of its supposed crime deterring benefits according to a 2012 National Academy of Sciences study."  Borrowing the WaPo Fact Checker's scale, that's Four Pinocchios, i.e., a whopper.

Putting aside for now the controversy over the NAS committee's composition, methods, and conclusions, let's just look at the objective fact of what that report says.  Does it say what the opponents' press release claims it says?  No, it most certainly does not.

There is a huge difference between "the truth or falsity of Proposition X has not been proved either way" and "Proposition X has been disproved."  The opponents claim that the report says that the deterrent effect has been disproved.  Here is what it actually says (emphasis added):

The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.

In other words, the committee's position is that deterrence has been neither proved nor disproved.

Citing this report for the argument that the death penalty has been affirmatively shown not to deter is either flat-out lying or astonishingly ignorant.  The Supreme Court held in the classic case of New York Times v. Sullivan that "actual malice" in publishing false statements means either knowing falsehood or reckless disregard of the truth.  The opponents are unquestionably guilty of actual malice in this falsehood.

Matt Apuzzo reports for the NYT:

Attorney General Loretta E. Lynch plans to announce on Friday that she will accept whatever recommendation career prosecutors and the F.B.I. director make about whether to bring charges related to Hillary Clinton's personal email server, a Justice Department official said. Her decision removes the possibility that a political appointee will overrule investigators in the case.

The Justice Department had been moving toward such an arrangement for months -- officials said in April that it was being considered -- but a private meeting between Ms. Lynch and former President Bill Clinton this week set off a political furor and made the decision all but inevitable.

Of course, under the "unitary executive" structure of the federal government, all executive decisions are ultimately under the control of the President, but to squelch an indictment now Mr. Obama would have to do so personally, without Ms. Lynch as a buffer.  The political consequences of doing so can be extraordinarily high, as President Nixon discovered after the Saturday Night Massacre.

Update:  Devlin Barrett has this article in the WSJ: