January 2017 Archives

Justice Gorsuch

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Neil Gorsuch is an outstanding choice for the Supreme Court.  As President Trump said in making the announcement, this was indeed the most important criterion for many of us who voted for him.  We look forward to many years of excellent jurisprudence from Justice Gorsuch.

The most important federalism issue for our work is the interference of the lower federal courts with criminal cases from the state courts.  From 1953 to 1996, the general rule was that the federal courts on habeas corpus would reconsider de novo (from scratch) questions of federal law already decided by the state supreme court, as if they were a higher court with appellate jurisdiction.  They are not, and such second-guessing on close questions is not the proper purpose of habeas corpus.  Congress passed the key habeas reform of the Antiterrorism and Effective Death Penalty Act of 1996 to put the brakes on that, reserving relitigation on habeas corpus for correction of clearly wrong state court decisions only -- with "wrong" defined by Supreme Court precedent, not the lower federal courts' precedents.

As the short list got shorter, I did a few Lexis searches to see whether the nominees respected and applied the AEDPA reform as intended or whether they were among the judges who evaded it and had to be reversed by the Supreme Court.  Judge Gorsuch, from the cases I was able to find, appears to be solidly in the former camp.  That is not true of all of the candidates.

This is a very good day for federalism, for the Constitution, for the rule of law, and for the law-abiding people of the country.  If the Democrats filibuster, go nuclear.  It's worth it.

Sally Yates and Me

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I was never Deputy Attorney General or Acting Attorney General or anything close. But a long time ago, in my days in the US Attorney's Office, I had my Sally Yates moment.  As a mostly obscure, but in that one instance somewhat prominent, federal prosecutor, I disagreed with the White House about the proper litigating position in a high profile case, one that was on its way to the Supreme Court.

Ms. Yates chose her path.  I chose a different one.  

News Scan

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Acting AG Fired:  An Obama appointee serving as acting attorney general was fired Monday, after announcing that the Department of Justice would not enforce the President's executive order placing a temporary suspension of immigration from seven terror-plagued Middle Eastern countries.  Edward DeMarche of Fox News reports that shortly after acting Attorney General Sally Yates was fired, Dane Boente, U.S. Attorney for the Eastern District of Virginia was sworn in as her replacement.  Last Friday, the President ordered the delay for admitting immigrants from seven countries identified as hotbeds for terrorism by the Obama Administration. 

California to Become Sanctuary State?  The California Legislature will today consider a bill to prohibit state law enforcement agencies from cooperating with federal immigration authorities which, if enacted, would effectively make California a sanctuary state.  CBS News LA reports  that SB54, introduced by Senate President Pro Tem Kevin de Leon, would protect illegals in the state from the President's promised crackdown on those who have been convicted of commiting crimes in the U.S.  The Senate committee  will also consider other legislation today which would provide state tax-payer funds to provide lawyers for illegals facing deportation.

  

Why Trump Had to Fire Sally Yates

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Prof. Josh Blackman has this article at Politico with the above title:

Democrats are calling it the Monday Night Massacre. On Monday evening, Acting Attorney General Sally Yates announced that under her leadership, the Justice Department would not defend President Donald Trump's executive order on immigration. After acknowledging that the Office of Legal Counsel had reviewed the policy, and noting that the Civil Division could defend it in court, she personally rebuffed the president's judgment, which she did not find "wise or just." Yates, a career prosecutor appointed by Barack Obama, is now being hailed for standing up to a supposedly "tyrannical" president, according to a statement blasted out by the Democratic National Committee.

But this has it wrong. If Yates truly felt this way, she should have told the president her conclusions in confidence. If he disagreed, she had one option: resign. Instead, she made herself a political martyr and refused to comply. Trump obliged, and replaced her with the U.S. attorney for the Eastern District of Virginia, Dana Boente. While this late-night termination may bring to mind President Richard Nixon's infamous "Saturday Night Massacre," the analogy is inapt. This is a textbook case of insubordination, and the president was well within his constitutional powers to fire her. Call it the Monday Night Layoff instead.
In a stunning statement of journalistic ignorance, James Hohmann writes in the WaPo's Daily 202: "The decision to fire Yates also raises profound questions about Trump's view of the judiciary as an independent branch of government."   Red hot news flash, Mr. Hohmann, the Department of Justice is in the executive branch.   Whatever else the controversy may mean, it has nothing whatever to do with the independence of the judiciary.
The Klan's main goal in life is to deprive black people of the ordinary rights of citizenship, dignity and equality that white people take for granted.  At its best  --  "best" being viewed from the Klan perspective  --  the organization attacks not merely the rights but the lives of African Americans.  Jim Crow was a substantial accomplishment, sure, but the crown jewel was lynching!  Why merely intimidate blacks when you can murder them?

Even now, when the Klan has been mostly subdued (but cf. Dylann Roof), murder of black men is still a national scandal.  The culprit has changed, however.  It's not the machinations of the Klan.  It's a poisoned culture in our big cities, north and south, that tolerates and breeds drug dealing, thugishness, violence and murder.  Young black men are, to a grossly disproportionate extent, its victims.

The Klan must be thrilled.  They now have a whole culture, not merely in the South but across the country, that will do their work for them.  Liberals hold dithering conferences to talk to each other in Very Earnest Tones about "compassion" while murder of black people skyrockets.

But danger is lurking.  Indeed, it comes up in a Senate hearing tomorrow.
This Politico article pretty much lays it on the line:  

Senate Democrats are going to try to bring down President Donald Trump's Supreme Court pick no matter who the president chooses to fill the current vacancy.

With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump's nomination. That means Trump's nominee will need 60 votes to be confirmed by the Senate.

I have only a question and a comment.  The question is what happened to the urgent cry, heard only very recently, that, "We have to end the partisan gridlock in Washington and learn to compromise!"  The comment is that, under the current Democratic stance, Antonin Scalia, one of the greatest legal minds in American history, would not be considered, much less confirmed, for his own seat.  

President Trump tweeted this morning, "I have made my decision on who I will nominate for The United States Supreme Court. It will be announced live on Tuesday at 8:00 P.M. (W.H.)"

Over the weekend, the WSJ had an editorial titled Trump's Supreme Choices, noting, correctly, that attacks on Judge William Pryor from the right flank are unwarranted.  Judge Pryor properly followed binding Supreme Court precedent in a transgender case.  Earlier, as Attorney General, he properly enforced the law against Alabama Chief Justice Roy Moore's Ten Commandments shenanigans.   "Since when do conservatives want AGs and judges who disdain the law in order to get the policy result they like?"  A few do, unfortunately, but far fewer than on the other side of the aisle.  The WSJ also notes that Judge Neil Gorsuch would also be a solid pick.

Adam Liptak has an article in the NYT titled "How a Trump Supreme Court Pick Could (or Could Not) Sway Cases."

News Scan

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Consent Decrees May Be Re-Negotiated: Emboldened by the newly appointed Trump administration, police chiefs and police union officials are beginning to discuss the possibility of a re-negotiation of consent decrees that were issued during the Obama administration. Julia Harte and Timothy McLaughlin at Reuters report that due to growing complaints of police abuse of power during the Obama administration, numerous consent decrees were put into effect to ensure that the use of force by police officers is being closely monitored. Officials have criticized these decrees as ineffective and frivolous in their spending. Numerous police officials want to discuss these decrees with Jeff Sessions, Trump's pick for attorney general, in hopes of renegotiating the terms of the decrees to hopefully make them more effective and economically sound. Sessions has been an open critic of such decrees in the past.

Chicago Shooting Numbers Continue to Climb: Over the course of an eight-hour period this Sunday, two people were killed and three were injured in incidents involving shootings in Chicago. Liam Ford and Megan Crepeau from the Chicago Tribune report that the gun violence death toll in Chicago continues to rise with this recent series of shootings that resulted in the loss of two lives. As of today, the total number of shooting victims in the city of Chicago for 2017 is 295.

To Nuke or Not to Nuke?

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Democratic Leader Sen. Chuck Schumer has signaled intransigence on confirming a Supreme Court nominee. He has said that Democrats would refrain from using the filibuster against a "mainstream" candidate, but made it clear that what he means by "mainstream" is a jurist who buys the legal and "living Constitution" agenda of the last Administration.  It is, to say the least, improbable that President Trump will put forward such a nominee. Accordingly, a filibuster seems likely at this point.

According to this article from the Hill, Majority Leader Mitch McConnell is reluctant to part with Senate tradition by ending the filibuster for Supreme Court nominees (i.e., by "going nuclear").

Earlier, I made one suggestion about how this might be handled.  A person well-acquainted with Senate procedures now makes another. 

Good and Bad Decriminalization

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Deutsche Welle (German wave) reports:

Germany is ditching a law specifically protecting heads of state and government against insults, after Turkish President Recep Tayyip Erdogan tried to sue a prominent satirist. Slander and libel laws still apply. 

Chancellor Angela Merkel's cabinet decided on Wednesday to abolish the rarely enforced section of the criminal code by January 1, 2018. 

The idea of 'lese majeste' dates back to a long-gone era, it no longer belongs in our criminal law," Justice Minister Heiko Maas (pictured above) said. "The regulation is obsolete and unnecessary," he added.
Thanks to Eugene Volokh for the tip.

Laura Mills reports for the WSJ:

Russian lawmakers voted Friday to remove domestic violence from the country's criminal code, making abuse punishable by fines rather than a prison sentence.

Green Light for the Habeas Fast Track

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When the Antiterrorism and Effective Death Penalty Act of 1996 was enacted, the "fast track" under Chapter 154 was thought to be among the primary reforms.  In essence, states which provided qualified and adequately funded counsel for their state collateral reviews in capital cases (which is not constitutionally required) were promised an expedited trip through federal habeas corpus.

Many obstacles have prevented the implementation of this chapter as originally conceived.  First, the original chapter had a hostile reception in the courts, as the courts which would be subject to its deadlines misconstrued it to avoid applying it.  In 2006, Congress amended the law to abrogate some specific misinterpretations and to take the decision of whether a state qualified away from the conflicted habeas courts and give it to the U.S. Attorney General with review by the D.C. Circuit.  The AG was further charged with adopting regulations to implement the statute.

News Scan

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Texas Double-Murderer Executed:  A Texas man who gunned down two employees as a Subway sandwich shop during a robbery was put to death Thursday.  Brandi Grissom of the Dallas Morning News reports that, after he was fired from the Balch Springs Subway in 2002,  Terry Edwards returned to the store just after it opened on July 8, 2002 armed with a 38 caliber pistol.  Along with his cousin, Edwards took $3,000 and shot store manager Tommy Walker, 34, and employee Mickell Goodwin, a 26 year-old mother of two.  Witnesses saw Edwards dispose of the gun after the shooting and the stolen money was in his possession during his arrest.  He was on parole for car theft and possession of cocaine at the time of the murders.  Among the claims made by his attorneys during multiple appeals were that the cousin was the shooter, that his initial appeals lawyer was ineffective and that the drug used for his execution might not be sufficiently potent.   

Big Increase in Overdose Deaths:  According to the Centers For Disease Control more than 500,000 people in the U.S. died from opioids between 2000 and 2015.  Dave Herdon of the News Herald reports that this number includes overdose deaths from prescription and illegal drugs.  While numbers for 2016 are not yet available, the CDC reports that heroin deaths from 2010 to 2015 tripled with nearly 13,000 dying from overdoses in 2015 alone.  The largest increase in fatal overdoses involved synthetic opioids such as fentanyl which went from 5,544 deaths in 2014 to 9,580 in 2015.  In Michigan, most state troopers now carry the drug naxolone to administer to overdose victims.  Many fire departments are also carrying the drug.   
As noted in the News Scan today, U.S. Magistrate Judge Michael Merz in Ohio issued this decision preliminarily enjoining the use of the present Ohio protocol, which is similar to the one upheld by the U.S. Supreme Court in Glossip v. Gross in 2015.  The parties stipulated that the Magistrate Judge rather than the District Judge could make rulings such as this in this case.

How can a district court come to a different result than the Supreme Court?  The Supreme Court decision had two independent bases.  One part was an affirmance of the district court decision in that case based on the evidence before that court.  A different court with a different evidentiary record might come to a different conclusion.

The other part of the Supreme Court decision, though, is not so easily avoided.  Glossip says on page 13 of the slip opinion:

The preliminary injunction posture of the present case thus requires petitioners to establish a likelihood that they can establish both that Oklahoma's lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.
That requirement should have completely shut down method-of-execution litigation as a means of delaying executions.  After all, no state today intentionally uses a method of execution that is substantially more painful than available alternatives.  The "Catch-22" strategy of claiming that a state's lethal injection protocol has an unreasonable risk of severe pain in comparison to an alternative and then pressuring drug companies to cut off the alternative should have ended with Glossip.

But Judge Merz doesn't get it.

News Scan

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Murderers Win Ohio Execution Delay:  A Federal Magistrate Judge has delayed the executions of three Ohio murderers, ruling that the state's three drug lethal injection protocol is unconstitutional.   AP writer Andrew Welsh-Huggins reports that Judge Michael Merz ruled yesterday that the state's use of the sedative midazolam in the protocol might allow the murderer's to feel some pain during their executions which he interpreted as a violation of the Eighth Amendment.  The challenge to the protocol was brought by attorneys representing Ronald Phillips, who was convicted in 1993 of beating and raping his girlfriend's 3-year-old daughter, Sheila Marie Evans, who died from her injuries. 

Does Chicago Need the Feds?:  The President recently announced that if Chicago does not take effective action to reduce the epidemic of murders that is plaguing the city, he will send in the Feds to address the problem.  While acknowledging that the huge spike in shootings and murders should be taken seriously by the President, Manhattan Institute scholar Heather MacDonald believes that ending the Justice Department's meddling with Chicago Police will do more to help reduce murders.  Her piece in today's Wall Street Journal notes that Mayor Emanuel plans to sign a federal consent decree, placing his Police Department under the control of the DOJ, which will force cops, who should be on patrol, to waste time filling out reports to make sure they are not disproportionately stopping black suspects.  .

DHS to Report Crimes by Illegals:  In an executive order announced Wednesday, the President has tasked the Department of Homeland Security to publish a weekly report of U.S. crimes committed by illegal aliens.  Mallory Shelborne of the Hill reports that the order directs DHS to make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor detainers with respect to such aliens.  From a policy perspective, this data will allow assessment of crime impacts of illegal immigrant populations, and help to determine if people living in sanctuary cities are at a higher or lower risk of becoming victims of crimes committed by illegals. 

Spending on Prisons vs. Spending on Schools

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One of the most misleading narratives of pro-criminal advocacy is that America has gone on a prison spending binge while squeezing education.  Consider, we are told, what could happen if we took all that money we spend "putting human beings in cages" and instead sent them to Stanford?

What indeed.

Usually, I just dismiss this as so much apples-and-oranges sloganeering, but today I came across a graph (courtesy of the Cato Institute) that illuminates what would happen if we spent a lot more on schools.  The light came on for me when I realized that, as the graph shows, we have already spent a lot more on schools, and done so at roughly the same time we have considerably increased our spending on incarceration.

Behold the results.
We're about to find out.


To be clear, my father's parents were immigrants from Germany.  They followed the rules to get here, and they followed them afterwards.  They sought no help from the government and got none.  

Our country has relatively low crime right now, thanks in very large measure to the bi-partisan, get-tough policies of the Bush and Clinton years.  But to say that we have relatively low crime is hardly to say that we can afford more.  In particular, with violent crime on a shocking upswing, as it has been for at least the last two years, we don't need more crime from individuals who have no right to be in the country to start with.

Academia should be eager for data about how much crime we're getting from such people.  Somehow, though, I suspect that what we'll see from academia is less curiosity than bile.

Executive Order on Sanctuary Cities

Congress enacted this law over 20 years ago (8 U.S.C. § 1373(a)):

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
And, of course, the Constitution has provided since its ratification in 1788: 

This Constitution, and the laws of the United States which shall be made in pursuance thereof ..., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
So there is no real question that state or local laws which contradict the federal law are void.  But what to do about it?  Today President Trump issued as executive order titled Enhancing Public Safety in the Interior of the United States, which provides in part:

News Scan

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Trump Follows Through on  Immigration Promises: President Donald Trump is set today to make good on his promise to order the construction of a wall along the border or Mexico to stem the flow of illegal immigrants into the U.S.  David E. Sanger at the New York Times reports that the wall is the first in a list of actions that the President intends to take to address the issue of illegal immigration and to improve national security.  According to Julia Edwards Ainsley from Reuters, the President is also expected to sign executive orders to put a temporary ban on refugees from most countries and suspend visas for citizens of Syria as well as six other Middle Eastern and African countries.

Teen Crime in D.C. is Rising: A troubling number of suspects between the ages of 12 and 17 have been arrested for violent crimes in the nation's capital over the last few months. According to Paul Wagner at Fox News, since October, D.C. police officers have charged 69 juvenile offenders with the crime of robbery alone, three of these suspects were only twelve years of age. Colbert King at the Washington Post gives an in-depth look into the growing problem of crime committed by adolescents in the city.

More Shootings in Chicago: Since yesterday morning, another life has been lost in a shooting on the streets of Chicago and 6 more people were injured.   As reported by the Chicago Tribune, multiple shootings have taken place in the last twenty-four hours in Chicago.  This seems to be a continuance of the trend of gun violence in the "gun controlled" Windy City.  During the fist three weeks of 2017 there have been nearly 250 shootings and 37 murders in Chicago according to Jessica D'Onofrio at ABC News.

Counterproductive Intolerance

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Barbara Smith describes a sudden change in her attitude in this article in the WSJ.

At best, I had been a lukewarm and silent Trump supporter, a Goldwater-Reagan-George W. Bush girl who had decided to attend the ball mostly for the opportunity to wear a fancy dress. But when my heels hit the sidewalk that second time, I committed: I would now back President Trump.

News Scan

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Speculation Heats Up About SCOTUS Appointment:  David Savage at the Los Angeles Times reports this morning on the emergence of 10th Circuit Judge Neil Gorsuch as the presumed front runner for appointment to the U.S. Supreme Court.  Gorsuch, 49 and a Colorado native, was appointed to the 10th Circuit in 2006 by President George W. Bush and won easy confirmation in the then Democrat-controlled Senate.  After earning degrees from Columbia, Harvard Law and Oxford, Gorsuch clerked for Justices Byron White and Anthony Kennedy, before serving in President Bush's Justice Department.  According to the Times, an appointment to replace Justice Scalia could be announced as early as next week.

Released Drug Dealer Murdered:   A drug dealer whose sentence was commuted last November by President Obama was executed at a federal halfway house in Detroit on Monday.  CBS Detroit reports that Damarlon Thomas, a former Saginaw gang member, had served 9 years of a 19 year sentence when he became one of 79 federal drug offenders whose sentences were commuted by the President on November 22, in order to remedy what he called onerous sentencing of non-violent drug offenders. On Monday night, two masked men with automatic weapons entered the Bannum Place halfway house and held roughly two dozen men at gunpoint while Thomas was shot several times.    

DNA Links Ex-Con to CA Murder:  A suspect has been arrested for the December murder of David Wick, a popular resident of the small Northern California town of Burney.  Nathan Solis & John J. Longoria of the Record Searchlight report that habitual criminal Manual Venegas has been arrested for the murder.  On December 22,  surveillance video recorded a man on a bicycle riding to the Rocky Ledge Shell, where Wicks was working, at the time of the murder.  Video shows the suspect entering the store and spraying a flammable liquid on Wicks and setting him on fire, then spraying more liquid on the victim as he was burning.  DNA testing of partially burned clothing found nearby, worn by the suspect, linked Venegas to the murder.  Venegas' criminal record spans over 20 years with several convictions for crimes considered "low risk" under California law.   

Sessions Confirmation Delayed

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Seung Min Kim reports for Politico:

The powerful panel officially agreed to delay the official committee vote on his nomination due to requests from Democrats, who said they wanted more time to review Sessions and the paperwork surrounding his nomination. The vote will now be Jan. 31, and his nomination will head to the Senate floor after that.
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With support from Republicans, Sessions is expected to be confirmed when his nomination comes to the Senate floor, despite limited Democratic support.
For the last two years, violent crime has been on a tear in our major cities.  This is as incomprehensible as it is tragic, because we know full well how to reduce crime. We did it dramatically  --  crime fell by half  --  in the years between 1991 and the end of 2014.  In those years, the murder rate specifically fell by more than half.

We used commonsense tools:  More police, more aggressive and proactive policing, longer terms of incarceration for more felons, and increased determination to cabin naive or partisan judges through statutory minimum sentencing.

The Obama Administration refused to say "yes" to success.  Instead, viewing the criminal as the victim and law-abiding people as racist cretins, the successful, bi-partisan policies of the Clinton and Bush years were reversed. The carnage along the road back to failure has not taken long to show up.  Chicago and Baltimore are on their way to world-wide notoriety.  

In the Trump Administration, conservatives hope to role back the antic release of dangerous drug traffickers who were falsely palmed off to the public "non-violent" (the name of multiple child killer Wendell Callahan comes immediately to mind).  But even before we are able fully to act on that issue, Trump's DOJ seems already to be providing help on another, quite important front, as reported today by the Baltimore Sun.

News Scan

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Mall Robbery Gone Bad: A good Samaritan lost his life in an attempt to prevent a jewelry-store robbery which left five people hospitalized. Samuel Chamberlain at Fox News reports  San Antonio Police Chief William McManus described the shooting at the Rolling Oaks Mall as a "robbery gone really, really bad." Two men were reported to have attempted to rob a Kay Jewelers. As the two men attempted to flee they ran into two bystanders. One of these good Samaritans was shot and killed in an attempt to stop the criminals, the other bystander, who had a concealed carry permit, was able to shoot and injure one of the suspects. The other suspect was able to flee the mall, firing rounds at bystanders as he fled.

BLM Week in Philly Classrooms: A Philadelphia School District teachers group is encouraging schools to make this "Black Lives Matter Week" in classrooms across the city of brotherly love. The group's goal is to have teachers introduce lessons which "validate our students' experiences, referring to "negative experiences with police officers." Kristen A. Graham of the Philadelphia Inquirer reports  that while some teachers believe the racial police narrative is "a critical issue of our time" and that  "It's important for us to dive in,"  others think that the BLM message has no place in Philadelphia classrooms.  One high school English teacher told reporters "I don't think kids should be taught that Western society is perpetrating a war on black people."  The lessons are not mandatory and they are not sponsored by the school system.  It has been left up to individual teachers whether or not to participate and what form their participation will take. 

Man Shot Saturday During Anti-Trump Rally: Police say that a man was taken into custody Saturday following the Friday night shooting of a man in the abdomen at a rally on the University of Washington campus to protest the inauguration of President Donald Trump. USA Today reports that a rally on the campus was taking place during an event where professional right-wing provocateur Milo Yiannopolous was giving a speech. The rally escalated to violence when one of the attendees shot a 32-year-old man in the chest.

El Chapo in U.S. District Court

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Nicole Hong reports for the WSJ:

Joaquín "El Chapo" Guzmán, the Mexican drug lord who evaded U.S. authorities for years and built a billion-dollar narcotics empire, is expected to make his first appearance in a U.S. courtroom on Friday.

Mr. Guzmán, who successfully escaped twice from maximum-security prisons in Mexico, was extradited to the U.S. late Thursday. His arrival came as a surprise to many, even to U.S. officials, who said Friday that they didn't know he was coming until the day of the extradition.
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News Scan

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Louisiana Police Officer Shot: A woman and a Westwego, Louisiana  police officer lost their lives in a shooting this morning. Bun Choum from WDSU News reports that the shooting took place during the response to a domestic disturbance involving Sylvester Holt, the man that investigators believe to be the shooter. The situation led to a vehicular accident and the officer, Michael Louviere, was shot while attempting to render assistance. He is survived by his wife and two children.

Colorado Bill Would Repeal Death Penalty: The top Democrat in the Colorado Senate has introduced a bill that would to repeal the the state's death penalty law. According to Brian Eason at the Denver Post, Senate Bill 95, introduced by Senate Minority Leader Lucia Guzman, seeks to repeal the Colorado death penalty, removing it as an option for punishment after July 1st. Guzman has stated her belief that the death penalty is a "failed public policy" and has reportedly been waiting "all the years she has been in legislature" to gain passage of a repeal.  A 2015 poll found that 63% of Colorado residents supported the death penalty for James Holmes, the Aurora Theater shooter who killed 12 people and injured 70.

Obama Cuts Sentences of 330 Criminals in Single Day:  On his last day in office, President Obama made history by commuting the sentences of 330 federal criminals, the most ever granted in a single day.  Bill Horwitz of the Washington Post reports that during his presidency, Obama has commuted the sentences of 1,715 criminals, including 568 serving life sentences.  This is more than the last 12 presidents combined. Most of those receiving commutations were defined as "non-violent" drug offenders.  A 2015 study by the Urban Institute found that 99.5% of drug offenders in federal prisons are drug dealers.   

White House Website

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The White House website was switched over in a flash about an hour ago.  The techies were ready.  Naturally, I went to the law enforcement page first.  Here is the last paragraph:

It is the first duty of government to keep the innocent safe, and President Donald Trump will fight for the safety of every American, and especially those Americans who have not known safe neighborhoods for a very long time.
I like that "first duty" line.  I have been saying similar things for a long time.  I also like the recognition that it is people of modest means who suffer most from crime.  I've said that a lot also.  The well-heeled can wax eloquently about giving thugs fourth chances from the safety of their safe neighborhoods, gated communities, and sophisticated security systems.  Regular folks need to take a more practical view of human nature.

The Senate Judiciary Committee will vote on the nomination of Jeff Sessions to be Attorney General next Tuesday.

News Scan

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Suspected Cop Killer to Represent Himself:   The man arrested for murdering an Orlando police officer last week appeared in court yesterday, announcing that he intended to represent himself.  Mike Arroyo of Fox News reports that during the hearing Markeith Loyd cursed at the judge as he made the announcement.  He also accused the police of making up the charges against him.  Loyd was wanted for the December murder of his pregnant ex-girlfriend when Police Lieutenant Debra Clayton spotted him at a Walmart parking lot. When she tried to confront Loyd he allegedly shot and killed her.  During the manhunt for Loyd, another officer died in a motorcycle accident.  Loyd appeared in court with a bandaged face, due to injuries he suffered during his arrest. 

Virginia Murderer Executed
:  An habitual felon convicted of the 2006 murders of a Richmond family was executed by lethal injection Wednesday.  The Associated Press reports that  while driving around looking for a home to rob, Ricky Gray and his nephew spotted an open door at the home of Bryan and Kathryn Harvey on News Year's Day.  The pair forced the couple and their two daughters, aged 9 and 4, into the basement, slit their throats and bashed their heads with a hammer.  The murderers then stole a computer, a wedding rings and a basket of cookies before setting the house on fire.  Gray also admitted to the murders of a 21-year-old woman, her mother and stepfather, days after the Harvey killings.    

Sex Offender Caught at Border:  A illegal alien convicted of aggravated sexual assault of a minor in 2007 was caught trying to cross the border at Del Rio, Texas, according to a U.S. Border Patrol press release.  After agents detained Youy Alexander Garcia-Chavez, 37, an illegal immigrant from Honduras, they discovered that he had served eight years in prison for sexually assaulting a child in Houston and had been deported.  He now faces 20 years as an ex-felon attempting to re-enter the country.  Over the first three weeks of 2017, Del Rio agents have apprehended eight previously deported sex offenders.  

News Scan

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Protesters Plot for Trump Inauguration: Anti-Trump protesters have been reportedly planning to interrupt travel to the upcoming presidential inauguration by blocking traffic into the DC metro line, a potentially terrorist act with possible criminal implications. Adan Salazar at Info Wars reports that multiple groups of protesters are organizing to interrupt any and all traffic into the upcoming inauguration. The plan to form a series of blockades... "where we are going to try to blockade all the major ingress points in the city." holds to the potential to be considered a federal offense for participants under 18 USC 1992,according to Investigative journalist James O'Keefe. In addition, there have been reports of protest leaders encouraging the participants to engage in acts of violence against Trump supporters at the inauguration.  The scope of the planned protests are reported in this USA Today story.

Parolee Sweep Arrests 30: A sweep of active parolees was made Tuesday in Desert Springs CA, the results of which lead 30 parolees to be returned to incarceration for reasons ranging from possession of contraband, to criminal warrants, to  non-compliance with the terms of their parole. According to Patrick Edgell at CBS, the sweep began around 6:30 am and concluded at 2:30 pm, during which 30 individuals were "flash incarcerated" for a series of reasons. Chief Dale Mondary says "were doing with them flash incarceration, where they're sent back to state prison to remind them that if they fall out of compliance they're going back to prison," The Desert Springs police department is happy with the results of Tuesday's sweep and hopes to continue to make sweeps of this kind at their own discretion in the future.

Texas Police Officer Fatally Shot: A Little Elm Texas police officer was shot Tuesday after responding to reports of a man carrying a firearm in a residential area. Staff at USA today report that officers responded to the report around 3 pm on Tuesday where they encountered the gunman. Following an order to drop the weapon from police officers, the gunman opened fire and one officer was shot. Detective Jerry Walker lost his life in the exchange as did the gunman several hours later in a separate shootout with pursuing officers.


Treason? Not a Problem!

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Among the most astonishing and damaging security breaches in decades took place when then-Sergeant Bradley Manning (who now calls himself/herself "Chelsea") released massive amounts of classified national security information to Wikileaks. But, hey, we gotta have second chances!  Thus, the Hill reports:

President Obama on Tuesday commuted the prison sentence of former Army soldier Chelsea Manning, according to the White House. 

Manning was convicted in 2013 of leaking classified information about U.S. national security activities that were later disclosed by WikiLeaks.  The 35-year sentence Manning received was the longest ever imposed for a leak conviction. Manning has already served seven years of her sentence and will now be released on May 17, 2017. 

She was originally set to be released be released in 2045. 

Yup, getting your sentence chopped by 80% for grossly compromising national security while you're serving in the armed forces is just what the doctor ordered.

By any sane reckoning, this is a scandal that exponentially dwarfs the Marc Rich affair.  No wonder Obama waited until about 70 hours before he exits the White House.

UPDATE:  I was quoted on this commutation in the up-to-the-minute journal, Lifezette, here.



News Scan

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Chicago: 39 Shootings Over MLK Weekend:  CBS Chicago reports that over this year's Martin Luther King weekend 10 people were killed and 29 were wounded in shootings across the city.  Most of the murders occurred in the west Chicago neighborhoods of Austin and Lawndale.  All of the murder victims were males.  Last year there were 32 shootings over the MLK weekend in Chicago resulting in 5 murders. 

Little Data to Support DOJ Report Slamming Chicago PD:   A widely publicized Department of Justice report released last Friday has accused the Chicago Police Department of exhibiting a "pattern of practice" of exercising unconstitutional excessive force.  The DOJ announced that it would investigate the Chicago PD following the 2015 release of a dashcam video of black teenager Laquan McDonald being shot and killed by a white police officer.  The problem with the DOJ report, according to Manhattan Institute scholar Heather MacDonald, is that it cites no data to support its findings.  "The reader never learns how many incidents of allegedly unconstitutional behavior the Justice Department found, nor how those incidents compare with the universe of police-civilian contacts conducted by the Chicago Police Department."  The piece also notes that just two years ago, academics were praising the Department as a model for others to emulate.     

Possible Brief Outages This Week

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C&C's host is moving us to a new server, which should result in better performance.  They have advised us to expect periods of downtime of 15-20 minutes this week as they make the transition.  These outages should occur after 4:00 p.m. EST.

News Scan

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Proposed Bill May Promote Deportation: A law has been proposed to institute penalties to countries that refuse to "take back" illegal immigrants who are captured in the U.S. and cleared for deportation back to their home countries. Malia Zimmerman at Fox News reports that a proposal by Rep. Brian Babin, R-Texas, the Criminal Alien Deportation Enforcement Act, would force such countries to take back their citizens or risk losing foreign aid and travel visa privileges. The proposed law was introduced in response to cases such as the 2015 murder of Casey Chadwick by Jean Jacques, an illegal Haitian immigrant ordered to be deported, who was released after his home country refused accept him.

Murderer Challenges Nebraska Death Penalty: The man convicted of the murder of the transgender individual who inspired the film "Boys Don't Cry" has joined in a suit with another death-row inmate to challenge the procedure or the Nebraska death penalty. According to Elizabeth Elizalde at the New York Daily News, A three-judge panel in 1996 sentenced John Lotter, now 45, to death for the 1993 murder of 21-year-old Teena Brandon and two others at a Nebraska farm. The transgender victim was raped by two men and murdered for reporting the sexual assault. Lotter's attorney argues that the defendants' fate should be decided by a jury and not by a panel of three judges, which is the current process for Nebraska capital cases.

Inauguration Security on High Alert for Lone-Wolf Terrorism: Law enforcement assigned to the upcoming presidential inauguration as well as other related events, are preparing themselves for the possibility of what is being called "Lone-wolf terrorism". Chris Strohm at Bloomberg reports  that due to the controversial nature of this election cycle, enforcement officials are having to prepare themselves for the possibility of "self-radicalized" individuals that may pose a threat to the Trump family as well as those that attend the inauguration. While to-date, no credible threats have been made to the inauguration or related events, security personnel are on high alert given the openness of the event and the plethora of safety concerns that it entails. 


DOJ Inspector General to Investigate Comey

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JIm Comey, a friend and former colleague of mine from the US Attorney's Office, will be investigated by the Justice Department's Inspector General.

Comey was in an impossible position in this election.  The very worthwhile tradition in the Department and the FBI is not to influence a campaign  --  something a free country must honor.  But, as Paul Mirengoff describes here, Comey was damned no matter what he did.

Comey would have conferred a big advantage on Trump if he had decided to recommend prosecuting Clinton -- a decision that, in my view, would easily have been defensible.

Comey would have conferred a big advantage on Clinton if, having decided against prosecuting her, he had declined to explain the basis of his decision to the American people and to Congress, and then refused to meet his promise to advise Congress if the FBI re-opened its investigation. A refusal to explain would have created the false impression that Clinton had not acted with great carelessness.

By taking a middle course -- not prosecuting but being transparent -- Comey probably came as close as he could have to not tilting the election in favor of either candidate. This doesn't mean he acted properly. It does suggest that, if one recognizes the full context of Comey's actions and the complexity of the situation, they are not really inconsistent with the "don't help or hurt a candidate" tradition he is accused of violating.

The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.

News Scan

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Georgia DA Seeks Death for Alleged Cop Killer: In Byron county GA, the district attorney intends to seek the death penalty for the suspected murderer of two Georgia police officers. Fox News reports that District Attorney David Cooke announced Thursday that his office will seek the death penalty against 57-year-old Ralph Stanley Elrod Jr. A grand jury indicted Elrod this week on the charges of aggravated assault and murder of Deputy Daryl Smallwood,39, and Sgt. Patrick Sondron, 41. The officers were reportedly responding to a call about the suspect making threats with a rifle when the officers were shot.

Indiana Murderer May Have Forfeited Review:  The Indiana Supreme Court is set to consider if a murderer's refusal to sign court documents for post-conviction relief will end further review of his case. Dan Carden at the NWI Times reports that Kevin Isom, 51, was convicted of the 2007 murders of his wife and two stepchildren and was given the death penalty for the crimes. After the state Supreme Court upheld his conviction and sentence on direct review, Isom refused to sign the required documents for post conviction (habeas corpus) review until he was given an attorney he likes.  The Superior Court ruled that if Isom would not sign, his right to further review was forfeited.  Isom's attorneys, apparently without his permission, have appealed that holding. The state's brief in the case is here

Parolee Charged With Murder After an Car Accident:  A parolee in Indio, CA. has being charged with murder for gunning down a man who ran into his SUV.  As reported by CBS news James "Chip" Milton Nathaniel, 30, in addition to being charged with murder, he also faces charges of being a felon in possession of a firearm.  Nathaniel was released from prison on parole 2014 for shooting a man in 2005.  Nathaniel is now facing trial for murder for reportedly firing multiple rounds into the 35-year-old victim following a collision between the vehicles of the two men in 2015. 

News Scan

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Mass Murderer Dislikes Confinement:  Anders Behring Breivik, the Norwegian neo-nazi who murdered 77 people, most of them teenagers at a summer camp, told judges Thursday that his confinement in prison is damaging him.  The Associated Press reports that since 2012, Breivik has been in solitary confinement in a high security prison as he serves a 21-year prison sentence for the 2011 murders.  The murderer is housed in a three room suite with television and video games with coffee and newspapers served to him each morning.  While he is allowed visits from family and friends, nobody has visited since his mother died.  Last year he sued the government arguing that his solitary confinement violated his human rights and an Oslo court accepted his claim.  That holding is now under appellate review.  And US prison inmates think they've got it tough.

Illegal Suspected of Assaulting Child:  Southern California police are searching for an illegal immigrant from El Salvador suspected of sexually assaulting a 5-year-old girl.  Fox News reports that 30-year-old Rigoberto Arevalo Cubias is suspected of  engaging in sexual intercourse and sodomy of the child in December.  Police believe that Cubias may have a fake California Driver's license.  Cubias also has a $50,000 warrant for his arrest for a 2014 DUI, and uses four different aliases.  According to the San Jose Mercury News, California has issued 800,000 driver's licenses to illegal aliens over the past two years.  Two of the state's largest cities, Los Angeles and San Francisco, have designated themselves as "sanctuary cities."

Sex Trafficker Charged With Murder:  After a four-hour standoff on Tuesday, police in Lubbock, Texas arrested Dimitrise Lyghts on sex-trafficking charges.  After Lyghts was taken into custody,. evidence was obtained implicating him in the murder last Sunday of 32-year-old Gabriel Salazar, and the additional charge of murder was filed against him.  NBC11 reports that  police have information connecting Lyghts and three others to the stabbing, shooting and baseball bat murder of Salazer, whose dead body was found at a local inn Sunday morning.  Three suspects have been arrested so far.  Police are still searching for a fourth suspect.

News Scan

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Chicago Murder Numbers Higher Than We Thought: The record-setting violence in Chicago last year is even worse than previously believed as new data show that an additional fifty homicides took place in the city. Sean Kennedy at AMI News reports that per the records of the Cook County Medical Examiners office, the city of Chicago reported 812 homicides for the year of 2016. The majority of these homicides in gun-controlled Chicago are gun-related with some 725 of the victims receiving at least one gunshot wound. We see a discrepancy in the numbers due to the fact that the medical examiners office only reports on homicides which is the loss of life of an individual at the hands of another.  This can include killings self defense and police killings of criminal suspects. The city's police agencies count murder as an event where human life is lost in a way that is subject to criminal prosecution.

Roofs Death Penalty Marks Upward Trend: The pending capital case on Dylan Roof for his murder of 9 people in a Charleston church is marking what some are calling a "national departure from the downward trend in capital punishment cases." According to Rick Jervis at USA Today, the overall number of capital cases across the nation has been declining over the past few decades, often attributed to the fortification of capital defense counsel and the growing budgetary concerns that are inherent to capital cases.  In Roof's case, he defended himself, admitted guilt, and alluded to the intention of killing again.  He should be formally sentenced on Wednesday.

Police say BLM Complicates the Job: Police officers throughout the nation believe that the hysteria and controversy surrounding high-profile shootings, such as the Mike Brown and Eric Gardner cases, has made their ability to enforce the law much more difficult.  According to Thomas Tracy at the New York Daily News, nine out of ten police officers say that they are more concerned for their own safety in the current era of the Black Lives Matter movement.  Fully 72% of these officers have reported that they are less wiling to stop a suspicious looking individual for questioning due to the current scrutiny and escalating danger currently associated with policing. The statistics cited in the story were taken from a survey of eight-thousand police officers across the country.

Ft. Lauderdale Shooter a Radical Islamist?:  According to new information, the man who committed a mass shooting in the Fort Lauderdale Airport has been a follower of radical Islam. Judicial Watch reports that the shooter was a Muslim convert who, years before joining the U.S. military, took on an Islamic name (Aashiq Hammad), downloaded terrorist propaganda, and recorded Islamic religious music online. Judicial Watch notes that this information is largely unreported in traditional news outlets, although it is mentioned in one ABC story.  That story reports that while the FBI is claiming no evidence of any ties to terrorism, "according to John Cohen, an ABC News consultant and former acting undersecretary for intelligence at the Department of Homeland Security, in these instances, 'investigators aren't asking the right questions.' "
The FBI issued this press release yesterday on its Preliminary Semiannual Uniform Crime Report.

All of the offenses in the violent crime category--murder and non-negligent manslaughter, rape (revised definition), rape (legacy definition), aggravated assault, and robbery--showed increases when data from the first six months of 2016 were compared with data from the first six months of 2015. The number of aggravated assaults increased 6.5 percent, murders increased 5.2 percent, rapes (legacy definition) increased 4.4 percent, rapes (revised definition) rose 3.5 percent, and robbery offenses were up 3.2 percent.
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In the property crime category, offenses dropped 0.6 percent. Burglaries were down 3.4 percent, and larceny-thefts declined 0.8 percent. However, motor vehicle thefts increased 6.6 percent.

We at CJLF will be looking at the data more closely and will report what we find on this blog.

News Scan

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2016 Deadliest Year for Suicide Attacks:  A study by the Institute for National Security Studies indicates that more people were killed in suicide attacks last year than in any year on record.  Vonat Friling of FoxNews reports that 5,650 were killed in such attacks worldwide and in 70% of the cases the Islamic State was responsible.  While most of the attacks were in Iran and Syria, several very deadly Isis inspired attacks also occurred in Western Europe and the United States.  The study also found an increase in attacks carried out by women.  

Manhunt Continues for Florida Cop Killer:  Hundreds of officers are searching for Markeith Loyd, the suspect in the December 13 murder of his pregnant girlfriend and wounding of her brother, and the January 9 murder of Orlando Police Sergent Debra Clayton, when she confronted him in a Wal-Mart parking lot.  Rene Stuzman and Stephanie Allen of the Orlando Sentinel report that  Loyd was a habitual felon who had served 10 years in prison for the non-violent, low level offense of drug dealing.  Shortly after shooting Sgt. Clayton, Loyd was spotted at an apartment complex parking lot where he fired at a deputy, then carjacked a vehicle and fled.  Several schools in the area were on lockdown until police confirmed that Loyd was no longer nearby.

CA Murder Gets Sex Reassignment Surgery:  A 57 year-old transgender serving a life term in prison for murder has recently received sex reassignment surgery in a San Francisco hospital at taxpayer's expense.  The Associated Press reports that Shiloh Heavenly Quine is the first U.S. inmate to receive a state-funded procedure of this kind.  Quine will be transferred to a women's prison after recovery from the surgery which was estimated to cost $100,000.  In 1980 the then-named Rodney Quine kidnapped, robbed and shot to death 33-year-old Shahid Ali Baig, the father of three, in downtown Los Angeles.  When asked about the surgery for her father's murderer,  daughter Farida told reporters "my dad begged for his life.  It just makes me dizzy and sick . I'm helping to pay for his surgery; I live in California. It's kind of a slap in the face."


News Scan

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Sharpton Promises Civil Disobedience:  Reverend Al Sharpton has promised a "season of civil disobedience" in response to the nomination of Senator Jeff Sessions for Attorney General in the coming Trump administration. According to Nicholas Ballasy at PJ Media, Sharpton stated, while hosting MSNBC, that activists have planned a March in Washington on February 14th during the Martin Luther King Jr. Holiday weekend to protest the nomination of Sen. Sessions. In addition, Sharpton has stated that activists will be making some "house calls" to senators to make sure they are "held accountable" for voting to confirm Sessions as Attorney General.

Repeat Parolee Charged With Murder: In Rochester New York, a grand jury has charged a man with the murder of his wife and daughter during the Thanksgiving holiday. David Andreatta of NBC2 reports that Patrick D. Brooks, 37, is being charged with two counts of second degree murder following the deaths of Christie and Victoria Brooks. Brooks had reportedly been in and out of prison on multiple occasions and a repeat customer to the Parole system. Victoria, his 18-year-old daughter, was a freshmen in college home on break for the holiday.

Two Officers Die in Search for Murderer: An Orlando police officer was gunned down today while searching for a murder suspect.  While looking for the officer's shooter, a sheriffs deputy also lost his life. CNN's Kate Connerly reports that the officer was attempting to make contact with a murder suspect at a Walmart around 7:17 am. A few minutes after the encounter, the police received a report of an officer involved shooting which lead to the death of Officer Debra Clayton. When the suspect in the shooting was identified as Markeith Loyd, the Orange County sheriffs office began its pursuit. A Sheriff's deputy was killed in a traffic accident during the manhunt.

The Culture of Hate

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Video of the torture of a white disabled man by four young blacks in Chicago has been all over the news over the past several days.  Pundits and politicians on both sides of the isle have condemned those involved in the incident and the suspects have been charged with hate crimes.  But the larger question is what has induced the level of hatred between the races exhibited in this incident, and numerous others reported over the past two years involving black thugs sucker punching non-blacks, wilding incidents where groups of mostly young blacks have randomly attacked non-blacks, and the now weekly reports of police officers shot, sometimes in ambush, by black suspects.  Heather MacDonald has this piece in the City Journal which focuses on an urban culture that breeds racial hatred.  I should note here that the strong influence that culture has on criminal activity has been exhaustively documented in Professor Barry Latzer's excellent book "The Rise and Fall of Violent Crime in America."   

Sessions AG Hearing Tuesday

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The Senate Judiciary Committee will hold a hearing on the nomination of Sen. Jeff Sessions to be Attorney General on Tuesday at 9:30 a.m.  So far, the only live broadcast link I have found is audio at Capitol Hearings, a service of C-SPAN.

Update:  The hearing will be shown live online at C-SPAN 3.

News Scan

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POTUS Continues to Free Terrorists: With the recent release of 4 Yemen-originated terrorists from Guantanamo bay, President Obama seems dead set on continuing to free individuals who have been incarcerated for acts of terror against the United States. Adam Kredo of the Washington Free Beacon reports that over the course of Obama's presidency, the population of Guantanamo Bay has been reduced by nearly 75% according to statistics published by the pentagon. Since 2015, the recidivism rates of Gitmo detainees has doubled and yet this trend is expected to continue as Obama's administration has voiced it intentions to release even more Gitmo prisoners prior to the inauguration of President Elect Donald Trump.

Fort Wayne Seeks Death Penalty: Following the gruesome murder of 3 adults and one infant, Fort Wayne Indiana is seeking the death penalty for the man who has been charged with the crime. Wane.com reports that Marcus Dansby, 21, will be facing four counts of murder and  one count of attempted murder in response to the brutal killings. The police reportedly responded to a call around 4 am on September 11th of 2016 where they found the bodies of the four victims with an assortment of gunshot and stab wounds. They found Dansby covered in blood in possession of a blood soaked knife with a broken handle. Dansby is being held until February 27th when his trial will commence.

Florida High Court Jumped the Shark?: In a puzzling move Wednesday, the Florida State Supreme Court in a 5-2 decision, forbade the imposition of capital punishment in pending prosecutions only to withdraw the decision shortly after. Gary Fineout of the AP reports that shortly after the 5-2 decision, the high court withdrew the decision to forbid the death penalty claiming that the decision was "prematurely issued". This opens up a slew of questions in the legal community of Florida as to the future of capital punishment in the sunshine state. 

How to Confirm Justice Kethledge

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Or Justice Sykes or Justice Pryor or Justice Gorsuch, etc.

It has become reasonably clear that the Democrats will filibuster anyone Mr. Trump nominates.  They will do this by declaring such a person "outside the mainstream," which means simply outside the sort of "mainstream" that embraces a Constitution that meanders with the fashion of the day.  And we all know the fashion of the day gets dictated by the same groups that now support [Ed. note:  I first said "bring us"] Black Lives Matter, expansive drug legalization, and the narrative of America as a callous and racist cauldron.

In other words, there will be a filibuster against anyone Trump will, or should, nominate.

Is there an effective strategy, short of the nuclear option (i.e., eliminating the filibuster) to get a sensible, mainstream conservative confirmed?

Yes, there is.  I'll call it the Middle Way.
Veteran Supreme Court reporter Tony Mauro reports for NLJ that the Court's bar is warming up to the possibility that George Conway of  Wachtell, Lipton, Rosen & Katz may be the next Solicitor General.  His abilities are being praised by many, and the fact that he has only argued one case in the high court is virtually irrelevant.

The fact that Conway has only argued once at the Supreme Court is not rare or disqualifying, according to Yale Law School scholar Lincoln Caplan, author of "The Tenth Justice," a 1997 book about the solicitor general's office. The newest justice, Elena Kagan, had never appeared in an appellate court before, and other 20th century SGs, including Robert Bork and Archibald Cox, had limited prior Supreme Court litigation experience.

The expectation that a new SG should be a veteran at the Supreme Court lectern, Caplan said, is the result of the "reconstitution" of the specialized Supreme Court bar. Decades ago, academics were often selected for the job, and "there was an expectation of intellectual capacity," not that they be able to argue a case on Day One. "You could be a great solicitor general and not argue a single case," leaving that chore to deputies in the office, Caplan said.
As I have noted before, oral argument is vastly overrated.  Justice Breyer says it is 2% of the Court's work, which sounds about right.

I had the pleasure of working with George on an amicus brief in the Second Circuit almost twelve years ago.  The question was whether the Voting Rights Act of 1965 prohibits felon disenfranchisement laws so that even a convicted murderer in prison for life can vote from the slammer.  We prevailed (see Hayden v. Pataki, 449 F.3d 305), but the pro-murderer-voting crowd surprisingly got 5 votes on the 13-judge en banc court.

News Scan

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Cop Killing Suspect Offered Plea Deal:  A member of the notorious prison gang Barrio Azteca, facing trial for killing a Texas police officer, has been offered a plea bargain reducing the murder charge to manslaughter.  Rudy Gutierrez of the El Paso Times reports that John Perry, is charged with intentional murder of a police officer for ramming a motorcycle officer at an El Paso stop light with his car.  Witnesses say that Perry was driving at high speed when he intentionally hit motorcycle officer David Ortiz as the officer waited at the stoplight.   Both vehicles burst into flames.  It took officer Ortiz four days to die from his injuries.  Under the plea deal the capital murder charge would be dropped if Perry pleads to manslaughter.  Due to Perry's previous conviction for stabbing and attempting to beat a man to death with a baseball bat, the normal 20 year prison sentence for manslaughter would increase to 45 years.    

Blocking Supreme Court Nominees

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"Where you stand depends on where you sit."  That is an old and very true adage in government, equally applicable to both parties.

Is it outrageous to block consideration of a Supreme Court nominee indefinitely and leave the ninth chair empty?  For nearly 10 months now we have heard that from our friends on the left side of the aisle.  Now we have a new statement from Senate Minority Leader Charles Schumer, as Kristina Peterson reports in the WSJ.

Mr. Schumer told reporters Wednesday that if Mr. Trump were to send up a mainstream nominee, Democrats would "give them a very careful look." But if "they're out of the mainstream, we will fight them tooth and nail," he said.
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When asked if Democrats would be comfortable leaving the ninth seat open on the Supreme Court, Mr. Schumer said "absolutely."

So, it's only outrageous if the other side does it.  And how is "mainstream" defined?

Mr. Schumer declined to comment on the merits of the list of possible high-court justices that Mr. Trump released during his campaign. But the Democratic leader said on MSNBC Tuesday night that it was unlikely Democrats would embrace any Supreme Court nominee from Mr. Trump that Republicans could support.
How did we come to a situation where nominees unacceptable to one party include all of those acceptable to the other?

News Scan

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Parolee Charged With Violent Crime Spree: A man on parole for gun charges is currently being charged with five robberies over the course of five days. The Chicago Tribune reports that Isaiah Scaife, 19, was arrested on Monday in connection with a string of armed robberies that took place in November of 2016 during which one victim was shot in the face, and another had their vehicle stolen. Scaife is being charged with attempted murder, aggravated vehicular hijacking, armed robbery, aggravated robbery and attempted armed robbery.

Parolee Admits to Shooting at Police from Stolen Car:
Michael Deshaun Hill, a recent parolee, has accepted a 20 year prison sentence on charges of armed robbery and attempted capital murder. According to John Lynch at Arkansas Online, following his parole for a 2013 conviction on charges of unlawful discharge of a firearm, Hill fled from police officers after stealing a vehicle at gunpoint. During the chase, Hill reportedly discharged several shots at the pursuing officers. Hill will serve twelve and a half years of his sentence before he is eligible for parole.

California Hires Holder: The Democrat leaders in California's legislature announced that they have retained Eric Holder, the former U.S. Attorney General under President Obama, as their legal representation in any future conflicts with the Trump White House.  Adam Nagourney at the New York Times reports  that Kevin de Le'on, the leader in the senate, believes that this move provides California with firepower in predicted conflicts between California and the Trump White House. In several recent statements California's government and legislative leaders have expressed their intent to oppose policies of the incoming Trump Administration, particularly regarding immigration, sanctuary cities, health care and energy development. 

News Scan

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BLM Blamed for Chicago Murder Rate:  The former Chicago Police Superintendent told radio listeners Monday that the Black Lives Matter movement shares responsibility for that city's 762 murders of mostly black males in 2016.   Fox news reports that Garry McCarthy, who was fired in 2015 over the Laquan McDonald shooting, said that anti-police protesters have legitimized non-compliance.  "Chicago is probably the worst example of something that has happened across the  country," he said.   A Black Lives Matter leader responded saying that McCarthy bore more responsibility for the increased murders than the protesters. 

Maine's Drug Crisis Worsens:  In addition to an epidemic of heroin and fentanyl deaths last year, drug enforcement officers are also dealing with a sharp increase in methamphetamine labs..  David Sharp of the Associated Press reports that in 2016, twice as many meth labs were discovered than during the previous year.  This as fatal heroin and fentanyl overdoses for the past year set a record, averaging one death per day.  The state's incoming legislature will consider a mountain of bills to address the illegal drug problem.

Parolee Arrested in Cop Shooting:  A suspect was arrested Monday for the New Years day shooting of a police officer in Valley Brook, Oklahoma.  NBC News4 reports that Cory Lee Hartsell was taken into custody for shooting officer Brian Southerland in the leg during a traffic stop on Sunday.  Southerland was rushed to the hospital in critical condition but is now listed as in serious condition after surgery.  At the time of his arrest, Hartsell was on parole for the non-violent offenses of grand larceny and possession of meth.  

Eighth Circuit Upholds Minn. Sex Offender Law:  A panel of judges on the federal Eighth Circuit Court of Appeals unanimously upheld Minnesota's controversial sex offender program today, overturning a district court ruling finding it unconstitutional.  The program allows the state to hold sex offenders beyond their sentences in treatment facilities until they are determined to no longer be a threat to public safety.  After 20 years, only one offender has been released unconditionally.   Steve Karnowski of the Associated Press reports that in a lawsuit brought by seven sex offenders, a District Court Judge ruled that the program   "shocked the  conscience" and unconstitutionally violated the defendant's rights.  The Appeals Court decision held that the lower court judge had held the state to an overly high standard and that none of the sex offenders claims rose to the level needed to reach the Supreme Court's "conscience shocking" standard. 


What Happens When We Step Back the Police?

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Murderers have a field day.

This is perhaps the single most important lesson from Chicago, an ongoing tragedy of violence.  The city had a mind-numbing increase in murder  --  over 50%  --  in 2016.

The usual suspects cannot be blamed:  Poverty, class structure, racism, gangs, callousness in the powers that be, lax gun laws.  Assuming arguendo that all those things exist and cause crime, there's no evidence that any of them got worse last year, and still less that they got 50% worse.  (As to gun laws in particular, Chicago has among the strictest in the country, and there is no evidence that more guns came into the city in 2016 from outside jurisdictions than in 2015).

So what gives?

By far the biggest change in Chicago was the shackling of its police, through consent decree, by the supposedly compassionate ACLU.

Ms. Saunders Goes to Washington

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Debra Saunders has long been the resident person of sense (singular) on the opinion pages of the San Francisco Chronicle.  I have called her the SF Chrontrarian, and we have quoted her columns many times on this blog.

Debra is moving to the Las Vegas Review-Journal, and she is going to Washington as that paper's White House correspondent.  We at CJLF congratulate her and wish her well in the new gig, though we will miss her in California.

News Scan

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Last Ditch Efforts Incoming: This Tuesday during the 5 minute recess between the close of the 114th US Congress, and the opening of the 115th, President Obama will have the opportunity to make some last minute appointments to federal judgeships which may include appointing a justice to the supreme court. Stephen Dinan at the Washington Times reports during this five minutes, congress will enter what is known as "intersession recess" which would open the opportunity for Obama to exercise his power to make recess-appointments. Legal scholars are saying that this would be a risky move for POTUS given the 1 year term limit for individuals appointed in such a way.

New Year Shootings: At the dawn of 2017, we see yet another group of shootings in which police officers are left injured in the line of duty. In Oklahoma City, an officer has been shot in the leg and remains in critical condition according to Lorne Fultonburg of KFOR news. Another police officer was shot in Calvert, Texas this Sunday evening while giving a man a ride. ABC 13 Eyewitness news reports that the officer was shot in the back while exiting his patrol vehicle in what is being called a new year's ambush shooting. Luckily this officer was not seriously injured as his flack vest absorbed the bulk of the damage.

ISIS Claims Istanbul Club Shooting: The Islamic state has released an official message taking credit for the massacre that took place in an Istanbul Nightclub on new year's eve, claiming that the shooter was a "heroic soldier of the caliphate". John Hayward at Breitbart news reports The Reina nightclub in Istanbul was attacked by a radical Islamist during a new year's celebration during which 39 people of varying nationalities lost their lives, and 70 were left injured. The radical Islamic group ISIS has officially taken credit for the attack, claiming that it was punishment for the celebration of an "apostate" holiday.

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