The Jury Talks Back


Painful: Unqualified Trump Judicial Nominee Founders Under Questioning (VIDEO)

Filed under: Uncategorized — Patterico @ 9:00 am

Oh, man. This is just brutal. Under gentle questioning from Senator John Kennedy (R-LA), Matthew Spencer Petersen, a Trump nominee to the U.S. District Court, reveals that he is patently unqualified for the job:

He has never tried a case. He’s assisted with fewer than five depositions and never taken one himself. He’s never argued a motion in court. He starts stumbling and bumbling when asked when he last read the Federal Rules of Civil Procedure. He last read the Federal Rules of Evidence in law school. He doesn’t know what the Daubert standard is. He initially says he knows what a motion in limine is, but ends up conceding that he could not give a definition of it. He doesn’t know what the Younger or Pullman abstention doctrines are.

And throughout, he stutters and filibusters.

Those of you who aren’t lawyers are probably wondering: to what extent these are trick questions? Can every lawyer articulate the Daubert standard? Not necessarily, if they don’t practice in federal court, but it’s pretty basic stuff for federal court practitioners. Most lawyers at least know that it addresses the admissibility of expert testimony. This guy doesn’t. Can most lawyers distinguish between Younger and Pullman abstention and tell you which is which? Again, you’re more likely to be able to do this if you’re a federal court practitioner; they have to know the ins and outs of federal vs. state jurisdiction and abstention doctrines. I learned about abstention doctrines in my Federal Courts class in law school, and applied them as a federal judicial clerk for a United States District Judge, but in 20 years as a state prosecutor I don’t deal with those doctrines any more.

But if I were a nominee to the federal bench, I would bone up on this stuff. Especially if I had never tried a case or argued a motion or taken a deposition. I would read the FRCP and FRE. I’d look at the basic jurisdictional rules, which federal judges have to know and apply whether the parties raise them or not.

In other words, I would try to show that I am worthy of the nomination.

Nominees to the federal bench aren’t supposed to be just any random lawyer. It’s a lifetime appointment. You’re expected to have at least some idea what you’re doing.

This guy is not only unworthy, he’s not even trying. It’s shameful and embarrassing.

Lefties will use this video to suggest that all Trump’s nominees are unqualified. WRONG!

By most accounts, Donald J. Trump has done a good job manning the federal judiciary. The New York Times is upset at the way he is reshaping the federal courts — in particular the appellate courts, whose rulings are final in all but the .1% of cases that go to the Supreme Court. Trump doesn’t care about judges, so he largely outsources the job to the Federalist Society — and as far as I can tell, they’re doing an excellent job by and large.

But the fella in the video above shows a hole in the process. Whether through cronyism or donations or some other kind of connection, he received a nomination for a position for which he is totally unqualified. Nobody should be on the federal bench who is this lacking in experience and basic knowledge.

Find the hole and fix it.

[Cross-posted at RedState.]


Yes, the Strzok Text Messages Are a Problem

Filed under: Uncategorized — Patterico @ 10:00 am

So one of the top FBI guys investigating the Russia stuff for Mueller hates Trump, as revealed in several text messages published yesterday. Sarah Lee posted about them last night. My first reaction upon reading them was that many of them sound a lot like my own private (and public) statements about Trump:

“I just saw my first Bernie Sanders bumper sticker. Made me want to key the car,” Page wrote in an August 2015 exchange.

“He’s an idiot like Trump. Figure they cancel each other out,” Strzok replied.

Whoa. He thinks both Bernie Sanders and Donald Trump are idiots? Who doesn’t — besides fanbois who are super-impressed that a guy can inherit a lot of money?

In a March 2016 message, Page exclaimed: “God trump is a loathsome human….omg he’s an idiot.”

“He’s awful,” replied Strzok.

Someone thinks Donald Trump is awful? Get out!

Of course, Strzok went further than I ever did or would, actively wishing for the election of Hillary Clinton by saying “God Hillary should win 100,000,000 – 0.” But many of his rants about Trump and his idiocy are shared by, well, millions of people in the country. Including people who voted for the guy.

Andrew C. McCarthy says no biggie:

Well, I’m not OK with Trump’s outbursts, but I’m not sure I’m OK with this either.

I’m of two minds about this. Before the Strzok texts came out, but after their existence was reported, McCarthy made the case that people in law enforcement can work political cases while holding political beliefs:

People who work in law enforcement tend to be engaged citizens, well-informed about current events. Many of them are passionate in their political convictions. In the New York metropolitan area, those convictions tend not to jibe with mine — although rank-and-file FBI agents tend to be more conservative than their high-ranking superiors, and than prosecutors educated in elite American schools. Political differences are fodder for good-natured ribbing in the hallway or over beers after work. But they get checked at the courthouse door, even in political-corruption cases. Law enforcement is a straightforward exercise: Figure out what the facts and law are, then apply the latter to the former.

I actually agree with this. I have no specific reason to believe that Peter Strzok is anything less than professional at his job. I don’t do political cases, but I think if people could see how the day-to-day operation of criminal investigation and prosecution works, they would have more confidence in the system than they get from Big Media’s often unfair portrayals.

But here, there is an issue that goes beyond whether the work is actually getting done right: the public’s perception. And while having general political opinions should not necessarily render a prosecutor or an investigator unfit for prosecutions of political cases — again, like McCarthy says, they tend to be engaged citizens — a very strong bias against a particular person, as we see here, has a negative effect on the perception of the integrity of the investigation.

At this point, I would like to quote a question from a correspndent whom I respect, who wrote me an email asking in the subject line: “Isn’t Bias Good in a Prosecutor?”

Not corruption, bias.

Doesn’t our system demand an aggressive prosecutor who has a jaundiced eye for suspected criminals? The defense is lionized for doing most anything to get a defendant off. Don’t The People need an energetic/passionate person to prosecute?

I believe Mueller was corrupted as an FBI Director, and maybe before. I am not defending him. There shouldn’t even be an IC without hard and fast limits as to scope. If an IC learns anything outside that scope, they should/would be free to refer to DOJ just as any U.S. Attorney can.

What troubles me is the meme that a prosecutor (or defense counsel, for that matter) is somehow wrong for having a bias. Isn’t that a core trait necessary to the job?

I’d answer this with an unqualified “no.” Yes, you want an energetic and passionate person to be a prosecutor. But their zeal must be for justice —
and it must be tempered zeal. Having a strong pre-existing bias against the target is not the kind of zeal that promotes justice or that gives the public confidence.

So I’m fine with Mueller taking Strzok off the investigation. He should not have been on it. Even though I agree with many of his views of Donald Trump.

[Cross-posted at RedState.]


Open Thread: Showdown in Alabama

Filed under: Uncategorized — Patterico @ 11:00 am

Often we say “let the best man win” but it seems like an odd thing to say in a race between a pedophile and a supporter of killing any baby for any reason before it’s born.

I still believe Roy Moore will win despite a Fox News poll released yesterday showing Moore down by ten points. Then again, another poll shows Moore up by nine points. Even a veteran pollster like Nate Silver seems flummoxed by it — although he seems to be leaning towards a Jones win, based on the superiority of the polling methods showing Jones ahead. [UPDATE: As Donald Trump likes to say: WRONG! That’s what I get for skimming Silver’s post too fast this morning. He actually says the opposite: “I still think Moore is favored, although not by much.”]

The polls are trying analyze voter turnout in which some people feel like me (I would never vote for either man), while some other people are extra fired up — whether it’s by Moore’s past behavior and statements, by Jones’s position on abortion, by unthinking tribalism . . . or by dark thoughts of Bernie Bernstein and his pack of Jewish infiltrators from the #FAKENEWSAMAZONPOST.

As an amusing aside, True Populist Steve Bannon was in Alabama stomping all over his own junk as he fought the scourge of Joe Scarborough:

I don’t like Scarborough, but I still gave a solemn standing O in my head for this response:

So what’s gonna happen and what’s the fallout?

As a mere spectator, it feels like a win-win. If Moore wins, it’s (like Trump) endless entertainment where you never know what crazy damn fool thing he’ll say next. We’ll get to enjoy the spectacle of seeing the Democrats hang Moore around the neck of the GOP. There will be endless debates about whether to seat him or subject him to an ethics investigation, all amounting to nothing. Al Franken will try to worm out of his resignation, citing Moore. And we’ll probably get some pretty good votes in, amid the stupid ones:

And if Moore loses? I guess there’s a lesson in there somewhere about the ultra-alpha-male guy who never apologizes for anything, treats women like objects, and promotes bigotry against Muslims and gays.

But that’s if he loses. And let’s face it. He’s gonna win.

[Cross-posted at RedState.]

Bach and the High Baroque by Robert Greenberg: A Review

Filed under: Uncategorized — Patterico @ 5:00 am

I recently commented that I had been listening to a class about Bach, and commenter Pinandpuller asked me to share the details. As I listen to my Zenph re-recording of the Goldberg Variations, I am happy to share the details of a course that has changed my life for the better.

Although a lifelong fan of classical music, I have always been a huge fan of some composers (Beethoven, Bruckner, Mendelssohn, Brahms, and Schubert leap to mind) and skeptical of certain others (including many of the moderns, and two of the older guys: Haydn and . . . you guessed it: Bach). Anyway, I have become a devotee of the “Great Courses” offered by The Teaching Company — in particular, the offerings by their resident music expert Robert Greenberg. He has opened my mind to a lot of music I either didn’t know, or incompletely understood.

Including the music of J.S. Bach.

I believe I own every single course by Greenberg. Hang on while I go check to see if I’m right.

OK, I just checked. When I started writing this post, I owned 24 of the courses. The shorter courses are about 6 hours, while the longer (and frankly better) courses are 12 to 36 hours in length. After checking, I learned that I was missing two of the 26 Greenberg courses offered by The Teaching Company, and instantly remedied that defect in my collection. (I did this very inexpensively, and will explain later in the post how I did that, and how you can do the same.)

So anyway, I do indeed own every Greenberg course that The Teaching Company offers. I am a huge, huge fan of these courses. Even as a lifelong classical music lover and music major, I have learned enough from these courses to more than justify the monetary expense of obtaining them (which I’ll help you minimize) and, more importantly, the expense of time in listening to them.

What you’ll get out of a Greenberg course depends on your level of musical knowledge. If you’re a newbie, the shorter biographical courses with less musical content might be more your speed. I own those too and I enjoy them too. But I grew up as someone who read Beethoven and Brahms biographies for fun as a kid and could rattle off the birth and death years of most of the major composers from memory. My parents were classical music lovers and made me take piano lessons, and I was a parent-pleasing first child who took after his parents in most respects. So I get a lot more out of the (unfortunately rare) longer courses that survey a specific area of output by a particular composer, or (in one unusual case, that of Bach) spend a significant amount of time on the output of a single composer.

If you’ve made it this far in this post, you might be a Big Music Lover too, so I’m going to emphasize the stuff I got out of these detailed courses, in the hope that you seek them out as well and have your life enriched the way mine has been,

The courses I most highly recommend are Bach and the High Baroque (25 hours), The Chamber Music of Mozart (12 hours), Beethoven’s Piano Sonatas (18 hours), The Symphonies of Beethoven (24 hours), or (a personal favorite) The String Quartets of Beethoven (18.5 hours).

I could go on and on and on about the stuff I have learned from these courses. In the future I will probably do a post about each as I revisit them. For now, with the Pinandpuller request to discuss the Bach course, and that being the one I most recently completed, I’ll concentrate on Bach.

Again, the reason the Bach course has so enriched my life is because I wasn’t a Bach fan before. I always saw Bach as repetitive and dry. Yes, I get it: you do an intricate melody and sequence it three times, each time a little higher or lower than the last, and there is all this counterpoint that I admit is technically proficient but which leaves me cold. Yawn.

I thought the Kyrie of the B Minor Mass was cool. I enjoyed some of the Well Tempered Clavier pieces I knew and played as a kid. And everybody knows a couple of those famous pieces like the Air on a G String or the Toccata and Fugue in D Minor. But other than that, Bach left me cold.

Man, was I wrong. I am now like a kid in a candy store — only the candy is substantive and only gains flavor the more you chew on it.

Sure, Greenberg gives you the biographical history. Yes, he gives you the historical and musical context, and instructs you (if you didn’t know them already) in the forms of fugue, ritornello, concerto, and so on.

But to me, the real treat was in becoming familiar with the intricacies of the details of pieces like the Goldberg Variations, or the St. Matthew Passion. With the Goldberg Variations, the tidbits include the structural details, like the way the piece is subdivided in two, with variation 16 being a French overture (he’ll explain it to you), but also subdivided into ten trinities bookended by the aria on each side. The trinities all end in canons beginning at increasing intervals, with the first canon (variation 3) at the unison, the second (variation 6) at the interval of the second, and so on up to the octave. The significance of the minor variations, in particular the “black pearl” (variation 25) is fascinating. I could go on.

And the St. Matthew Passion. What a piece! Listen as it is explained how Jesus’s vocal pieces are always accompanied by a halo-like shimmer of violins — with one singular exception that shows Bach’s deep understanding of the significance of the crucifixion. One detail I never knew, which is truly a Music Nerd detail, is that e minor is the key of the crucifixion. Why? Because, like its relative major G major, it has a single sharp — and in German, the word for “sharp” (as in the sharps and flats used in music) is Kreuz — the same word that is used to mean “cross.” Get it? One sharp, one cross — the One True Cross.


The fun nuggets of learning go on and on.

SMALL ASIDE: I don’t owe all of my Bach appreciation to Greenberg; just most of it. Last year, Mrs. P and I went for a long weekend with the fella that long-time blog readers know as Armed Liberal from Winds of Change, as well as his lovely wife. We hung out at the Aviara resort near San Diego and went to see Verdi’s Falstaff at the San Diego Opera. One afternoon, as we were hanging out and drinking wine in the Aviara’s open area off the lobby, I asked A.L. what his favorite music was, and he named Bach’s Cello Suites as among his favorite music. He had seen Yo-Yo Ma perform them at a concert in (if I recall correctly) Minneapolis years ago, and had even gotten to meet the famous cellist.) I said I didn’t know the pieces, but resolved to become acquainted with them. And then Yo-Yo Ma announced his performance of the suites in their entirety at a marathon concert at the Hollywood Bowl this past summer, and I knew I had to invite A.L. and the wife to come along. (In an example of terrible timing, he ended up having to go to New York for work the night before, so Mrs. P. and I and A.L.’s wife went with a friend of theirs and A.L. missed out, which I’m still sad about.)

I listened to those cello pieces dozens of times before the concert, and played through them on the piano (well, all but No. 5, which is written in that bizarre C-clef that I have struggled with my whole life). I now know and love those pieces as if I had listened to them my whole life — and I owe that to Armed Liberal and not to Greenberg. (END ASIDE)

BACK TO GREENBERG: In reading reviews of the Greenberg courses, I see that the man’s style is not for everyone. He is very confident and expressive (and the reviews reveal that he occasionally gets small facts wrong) and most importantly he cracks a lot of corny jokes. Look: I’m a fan of dad jokes. I ask Alexa (yes, Alexa: I probably would not have gotten it, my mom got it for us and it turns out to be useful and fun) to tell us jokes pretty frequently. They are often dad jokes and they make me laugh.

Where did Napoleon hide his armies?

In his sleevies.

(While we’re sharing corny humor that my kids roll their eyes at, did you ever see Sail Cat? My kids say I should not say anything about it on the Internet because literally everyone else in the world saw this five years ago or more, but I saw it for the first time in the last week or two and I could not stop watching and laughing.)

Anyway, I think Greenberg is funny, but if you hate funny dad jokes then fairly warned be thee say I.

These courses can be bought for a song, if you are an Audible member, or become one. The discount is absurd, and paying “sticker price” would be like paying the sticker price for a new car. Take the course on the Beethoven symphonies. The Great Courses Website indicates that their usual price for DVDs is $519 and their cheapest option, an audio download, is $250. Absurd. As of this writing they have a “sale” where the audio download is $45 and the DVDs are $110. Also silly. Amazon tells you that they want to charge you $30 for an audio CD and $26.47 for an audio download. We’re getting closer for a 24-hour course, but you can do a lot better.

Join Audible as a Platinum member and pay $22.95 per month (cancel any time) and get 2 credits a month. Each costs you $11.48. Or join as a Gold member and pay $14.95 a month for one credit. A credit will buy you a whole course, no matter how long it is or what the usual sticker price is. So you’re paying about $12-15 per course, depending on which option you go with.

If you’re convinced and you want to sign up for Audible now, you can do it through my link. I get a commission and you get a 30-day free trial and two free audiobooks to start:

Try Audible and Get Two Free Audiobooks

If you’re a music nerd, I’d highly recommend Bach and the High Baroque and the Beethoven String Quartets as your free selections. Even if you’re not, Greenberg keeps it simple enough that as long as you’re interested, you’ll be glad you did it. Those two courses alone would be over 43 hours of music instruction for free, and then $14.95 a month after that if you don’t cancel.

If you’re like me, you’ll go Platinum for barely over a year — long enough to get all 26 Greenberg courses, at about $12 a pop.

Anyway, if Greenberg did nothing but acquaint me better with the music of Bach, that alone would be enough. As regular readers know, I have begun to post a Bach cantata every Sunday, with eight entries so far and counting. I feel funny saying this, but Bach’s music has even motivated me to go to church again. I was raised in the Episcopal church, but Bach’s example spurred me to look for a Lutheran church, and I found one nearby that has a very welcoming congregation where I feel very comfortable. Commenter DRJ noted something that I had never heard before: that Bach’s cantatas have been called “the fifth Gospel.” Indeed:

Yuko Maruyama, a Japanese organist working in Minneapolis, was once a devout Buddhist. Now, thanks to the music of J. S. Bach, she is a Christian. “Bach introduced me to God, Jesus, and Christianity,” she told Metro Lutheran, a Twin Cities monthly. “When I play a fugue, I can feel Bach talking to God.” Masashi Masuda, a Jesuit priest, came to faith in almost the same way: “Listening to Bach’s Goldberg Variations first aroused my interest in Christianity.” Today Masuda teaches theology at Tokyo’s Sophia University.

But why would the most abstract works of an 18th-century German composer guide Asian people to Christ? Charles Ford, a mathematics professor in St. Louis, suggests that this is because Bach’s music reflects the perfect beauty of created order to which the Japanese mind is receptive. “Bach has had the same effect on me, a Western scientist,” explained Ford. Henry Gerike, organist and choirmaster at Concordia Seminary in St. Louis, agrees: “The fugue is the best way God has given us to enjoy his creation. … But of course Bach’s most significant message to us is the Gospel.” Gerike echoes Swedish archbishop Nathan Söderblom (1866–1931), who famously called Bach’s cantatas “the fifth Gospel.”

I can’t easily explain it in words, and it makes me feel a little sheepish to talk about it, but my experience has been much the same. After listening to Bach, I just felt drawn to the church, and I couldn’t really articulate precisely why when people asked. But it makes sense to me inside, and that’s all that matters.

And this, among other things, I mostly owe to Robert Greenberg and his course on Bach. I can only hope that even one person reads this and has even half the experience I have had as a result.

(All links in this post contain affiliate links to Amazon.)


Defendants in Mosque Bombing Plot Trial Want Trump Voters as Jurors

Filed under: Uncategorized — Patterico @ 8:30 am

A curious tidbit left over from Friday night. If you live in rural Kansas and are a Trump voter, there are some folks who allegedly planned to bomb a mosque who would like to have you on their jury. They think that you, the Trump voter, would be more sympathetic to them:

Three men accused of plotting to bomb a mosque and apartment complex housing Somali refugees asked a federal judge Friday to include prospective jurors from rural western Kansas because they are twice as likely to have voted for President Donald Trump.

A defense motion argues that plans to only summon citizens in the more urban counties closest to the federal courthouse in Wichita is a discriminatory practice that excludes rural and conservative jurors. The trial begins March 19.

Gavin Wright, Patrick Stein and Curtis Allen are charged with conspiracy to use a weapon of mass destruction and conspiracy against civil rights for allegedly planning to detonate truck bombs in the meatpacking town of Garden City the day after the November 2016 election. Wright also faces a charge of lying to the FBI.

. . . .

“This case is uniquely political because much of the anticipated evidence will center around, and was in reaction to, the 2016 Presidential election,” defense attorneys wrote.

These are militia loony tunes who apparently believed that if Trump won, Obama was going to roll in the tanks and declare martial law.

Being a Trump voter obviously doesn’t make someone a supporter of terrorism, whether it’s terror against Muslims or terror against the populace at large. But there’s no doubt that the folks on trial here would have a better chance with rural Trump-voting Kansans than with urban Hillary-voting ones. That’s not a slur on Trump voters. It’s a fact. Similarly, if the defendants were Antifa/Black Lives Matter folks looking to blow up a police station, their defense attorneys would be looking for the most urban Hillary-voting group possible — and that fact is not a slur on Hillary voters or a suggestion that all Hillary voters are Antifa supporters. Again, it’s just a fact.

Just a little reminder that defense attorneys in criminal trials, like people running for office (oh hi Roy Moore!) often prey on people’s basest emotions and prejudices. Human decisionmaking can be a nasty process, can’t it?

[Cross-posted at RedState.]


Sunday Music: Bach Cantata BWV 30, Part 1

Filed under: Uncategorized — Patterico @ 9:15 am

It is the second Sunday in Advent, and the title of today’s cantata is “Freue dich, erlöste Schar” (Rejoice, redeemed flock), Part 1.

Today’s Gospel reading is Mark 1:1-8

The beginning of the good news about Jesus the Messiah, the Son of God, as it is written in Isaiah the prophet:

“I will send my messenger ahead of you,
who will prepare your way”—
“a voice of one calling in the wilderness,
‘Prepare the way for the Lord,
make straight paths for him.’”

And so John the Baptist appeared in the wilderness, preaching a baptism of repentance for the forgiveness of sins. The whole Judean countryside and all the people of Jerusalem went out to him. Confessing their sins, they were baptized by him in the Jordan River. John wore clothing made of camel’s hair, with a leather belt around his waist, and he ate locusts and wild honey. And this was his message: “After me comes the one more powerful than I, the straps of whose sandals I am not worthy to stoop down and untie. I baptize you with water, but he will baptize you with the Holy Spirit.”

The text of today’s cantata is available here. It contains this passage:

The herald comes and announces the King,
he calls; therefore do not delay
and arouse yourselves
with a hasty gait,
hurry after this voice!
It shows the way, it shows the light,
by which that blessed pasture
we shall surely behold one day.

Happy listening!

[Cross-posted at RedState.]


The Shooting of Daniel Shaver: The Law Enforcement Perspective

Filed under: Uncategorized — Patterico @ 4:30 pm

On Thursday, an Arizona jury acquitted Philip Brailsford of murder and manslaughter in the fatal shooting of Daniel Shaver. The online reaction has been that it was a “murder” and that the jury was insanely wrong.

I’m not so sure about that. Maybe that view is right. Maybe it’s not.

Many pieces ask you to make your initial judgment by showing you a video with very little additional context. I’m going to take a little different approach, and give you the context that the police officers were facing before I give you the video to watch.

The shooting occurred after police were called to a Mesa La Quinta Inn & Suites on a report of a person pointing a gun out a fifth-floor window. A couple in a hotel hot tub told staff they saw a silhouette with a gun pointed toward a nearby highway.

. . . .

Police later learned Shaver had been showing his pellet gun to Monique Portillo and Luis Nuñez, two hotel guests Shaver had met earlier that night. Both testified Shaver had been playing with the pellet gun near his hotel room window.

Shaver turned out to be unarmed when he was shot, but police did find the pellet gun inside the room.

Before I show you the events leading up to the shooting and the shooting, I am going to show you the very end of the video after the shooting — because it gives you some perspective on where the hotel room was:

You can see that the room is just beyond where they had Shaver initially lie on the ground. If they simply walked up to him and cuffed him, as many have suggested they should have done, they would have spent extra time in front of the door, where a gunman with a long gun could be just behind the door, waiting to shoot them.

Now, with that context, let’s watch the video. I warn you: it’s disturbing. Not just because of the shooting that happens at the end, but also because of the angry, contradictory, absurd commands barked by a sergeant at the scene. Critical to understand is that the shooter is not the person barking the idiotic commands. The voice you hear is that of a sergeant — the supervisor of the shooter. Here’s the video:

I am going to sum up my position on this in a nutshell, right up front, so there can be no mistake about what my views are:

  • 1) I believe this was an avoidable tragedy.
  • 2) The police officer’s instructions were absurd and contradictory.
  • 3) The video is infuriating because much of the time it’s impossible to guess what the cop actually wanted Shaver to do.
  • 4) Shaver’s reaching for his waist was a fatal mistake.
  • 5) The cop who shot Shaver was probably really scared.
  • 6) Whether this shooting was criminal or justified is a decision for a jury that has all the evidence. You can’t make up your mind based on this single video. You need more facts.

It’s points 4 through 6 that upset people the most, and therefore those are the points I plan to spend the most time on. That’s not because those points are the most important to me. It’s because I think I can offer the most value by discussing those points. You probably already feel points 1 through 3 in your gut. It doesn’t take a lot of discussion to explain these points, but I’ll start with them anyway.

One cannot “crawl” with their hands in the air. One cannot easily crawl with their legs crossed. It is impossible to “crawl” with your legs crossed and with your hands in the air. These have to be some of the stupidest instructions ever given to a suspect.

When a cop 1) screams orders at you at gunpoint, 2) screams also that you that you will be killed if you make a mistake, and then 3) gives you contradictory instructions, what in the hell are you supposed to do? Not everyone handles that situation as calmly as the old man did in Raising Arizona:

A good part of the reason people are upset by this is that they put themselves in Shaver’s position, and they imagine an angry cop barking contradictory orders at them . . . and they wonder: what would I have done in that situation? What would I have done when some cretin screams at me to crawl with my legs crossed? What would I have done when someone told me to crawl with my legs crossed with my hands in the air?

It’s insane. These ridiculous orders, and the cop’s tone, escalated the situation and made the shooting a thousand times more likely. The sergeant has no business being a police officer.

OK, now here comes the part you aren’t going to like. Shaver made a mistake putting his hands behind him without being instructed to. Thirty seconds later, he made a fatal mistake reaching for his waistband when he had been specifically told not to do that.

So, was it murder or was it justified? I don’t know. I didn’t see the trial. To me, the video alone is not necessarily enough. You need full context — the kind of context that you lack, because you did not see the trial.

You did see him reaching for his waistband, right?

I’ll take you through those actions in detail at the end of the post, with clips and screenshots of the orders Shaver was given and how he defies them. But first, let’s get some more context.

IMPORTANT NOTE THAT MANY WILL IGNORE: Please don’t tell me that I am “excusing” or “justifying” the shooting in the following discussion. It’s possible that a rational jury could find the shooter guilty of manslaughter or murder. That is not something I would say if I were “excusing” or “justifying” the shooting. I know that people love to get upset about things on the Internet and then unload on someone who they believe disagrees with them — and this is even more satisfying and cathartic if you can convince yourself that your opponent is simply evil. But it would be dishonest in the extreme to tell me that I am justifying this when I have repeatedly explained that I am not. So if you want to feel that frisson of self-righteousness that accompanies the act of telling off a jerk, find someone else who has no doubts about, or criticism of, the cops’ actions here. I do have doubts about, and criticism of, the police actions here.


I’d like to start out the discussion with an example of an undeniably bad officer-involved shooting, by way of contrast. Here’s a video from 2016 in which an officer responded to a call of a man harassing people outside a convenience store. The officer sees a man fitting the description — or so he thinks — and confronts the man, who seems calm but continues to go about his business. Well, of course! He’s minding his own business talking on the phone! Why should he have to stop what he is doing just because some officer is yelling at him? The officer starts to freak out about the fact that the guy won’t take his hands out of his pockets, even though nobody ever said the man at the convenience store was armed. What happened next is an object lesson in how police officers get carried away at the slightest “false move.” There is about a minute of video here, and I warn you that it ends in a shooting:

OK, my description of the video was deliberately misleading — for a reason. I wanted you to view the video using the assumption that the man being stopped by the police officer was non-aggressive — so that you could actually feel, emotionally, in your gut, how someone who doesn’t appear to be presenting much of a threat can turn deadly in a heartbeat. Every police officer knows this, which is why their jobs are so dangerous and why their wives worry each time they leave the house that they might never come back.

There are plenty of other videos you can find online where people look normal one second and are shooting the next. So when cops think you may have a gun they do not want you to reach for your waistband — and if you do, it’s not good.


I have also had people tell me that the fact that the guy seemed “compliant” means he was not a threat. That we have to look at the context.

I’m happy to look at the context. That’s why I started the post by looking at what the officers believed they were responding to: a report of a man pointing a long gun out a hotel room window towards a highway.

Obviously he didn’t have a long gun on him. But that means another man with a long gun might still be in the hotel room. That is almost surely why they didn’t just walk up to him and cuff him. They wanted to minimize the time of exposure to a possible gunman behind the door.

Also, someone pointing a long gun out of a window in a hotel room might also have a handgun in his waistband.

Context can change. If you want to talk context, here’s a video of a traffic stop in which the motorist is dancing and cursing. Watch about 23 seconds, ending with the motorist dancing:

Ha ha! What a funny old man! It’s so comically absurd that it almost looks like one of those parody videos where the cop is doing field sobriety tests:

But the dancing motorist in the non-parody video turns out to be aggressive, showing you that context matters, but context can change on a dime. If you have a couple of minutes, watch the rest of the video with the dancing motorist. What happens is no parody. It was very real:

For better and for worse, that video is shown in police academies across the country as an example of what can happen to a police officer when he hesitates:

Experts and activists keep calling for de-escalation training, less-lethal force, anything to stop an officer’s bullet from taking flight. But a beanbag shotgun won’t fit on a utility belt. A baton has very short range. Pepper spray can blow back in your face. A Taser might not work on a suspect in a heavy coat. And in a nation with nearly as many guns as people, the Kyle Dinkheller video tells officers there could be a time when pulling the trigger is the only way.

“It has saved innumerable officers’ lives, in my opinion,” Ron Barber said.

Kirk Dinkheller believes the same thing, which is why he regularly visits police academies to expound on its lessons. He says several officers have approached him over the years and told him the video saved their lives. Its full effect is impossible to calculate. Many thousands of officers have seen it, and they’ve been in innumerable tense situations, and perhaps in some of those situations the video has made them a little quicker to fire. Is this a good thing? That is also unknowable. The line between firing too slowly and too quickly can be very, very thin.

Again, I am not comparing this man’s actions to Shaver’s actions. Instead, my point is that a dancing man turned violent. If the police officer had fired at the guy when he went back towards his truck, people would have said: how could he shoot a guy who just moments before was dancing around like a clown? In context, isn’t he obviously comical and harmless? Maybe. But context can change.


Another issue is that a single camera angle does not always tell the whole story. Here is a 26-second clip of police shooting an unarmed man in the back. It’s all caught on video:

This really happened. The man was unarmed. He was shot in the back. What was the cops’ lame story this time, to justify their cold-blooded execution? Get this: the cops said that the man had a cell phone. They gave him orders to drop it and he refused, instead repeatedly pointing it at them like it was a gun. Why, they had to shoot him!

That’s obviously a load of horse excrement, right? First of all, who points a cell phone at cops like it’s a gun? Second of all, it’s all caught on tape. You just watched the cold-blooded, first-degree-murder execution of an unarmed man. The cops aren’t just murderers; they’re liars, undone by the cold hard evidence of the dashcam.

There is no excuse for this, right? Verdict of Twitter court: convicted! Next case!

Except . . . there is a second angle:

How about that? Turns out he was indeed pointing the cell phone precisely like a gun, as you can see in this screenshot from 11 seconds into angle 2:

Angle 2 Screenshot 1

There is a police officer off to the left when he points the phone. I’m shocked that they didn’t shoot him then and there, but it probably has to do with reaction time and the fact that he stops pointing it. At that point, though, running through the officers’ minds as the man walks away are two things: 1) this guy has a gun and 2) he just pointed this gun at an officer. So when he suddenly spins around and seems to point it again, as he does here, 17 seconds in to camera angle 2, that’s all it takes to get them to open fire:

Angle 2 Screenshot 2

Again, due to reaction time, they’re not firing until he has again turned his back. Things don’t happen instantaneously in real life. You have to process visual cues and react.

Again: my point here is not to compare the actions of this individual to Shaver’s actions, or to suggest the facts are comparable in any way. The only reason I am presenting this example is to illustrate — I think pretty effectively — that a single camera angle doesn’t always show everything.

But what more do we need to know from the Shaver video? You could say the same thing about what you just watched, after watching the first video. What else did we need to see there? We didn’t know until we saw the second video, did we? The point is, one angle doesn’t always show everything.


And now, with that context, let’s look at the critical moments when Shaver defies instructions and makes suspicious motions with his hands. Watch this 11-second clip from about 30 seconds or so before the shooting. Shaver puts his hands behind his back — where a gun could be in his waistband:

Nobody shoots him at that moment, but the cop explicitly tells him that if he does that again, he will be shot. He repeats the warning in this six-second clip:

COP: Your hands go into the small of your back or down, we are going to shoot you. Do you understand me?

SHAVER: Yes, sir.

And then Shaver reaches towards his right waistband in this two-second clip:

Here are a couple of screenshots:

Shaver reaching for his waistband:

Shaver Reaches for Waistband 1

And here he is coming down from the reach:

Shaver Reaches for Waistband 2

Is there anything in his hand? We know now that there wasn’t, but look closely. Are you willing to risk your life that this guy who just defied instructions not to reach for his back didn’t just get a gun?

Watch those two seconds again:

A detective testified during the trial that Shaver may have been going to pull up his pants. That is possible — and if that’s what happened, it compounds the tragedy. But a police officer who sees a man going for his waistband in contravention of lawful instructions has a difficult decision to make. I’m guessing the jury understood that.


In Twitter Court, the unwritten instructions for determining whether a killing is murder or manslaughter go a little something like this:

  • First-degree murder: killing that makes you super-upset
  • Second-degree murder: killing that makes you pretty damned upset
  • Manslaughter: killing that upsets you, but not as much as other killings do

In real court, a jury is read actual instructions that come from actual statutes passed by legislatures.

What is the law of murder in Arizona? I don’t know, and I’m not going to try to give a definitive view based on quick Internet research. My recent experience with people trying to explain the law of murder in California to me, based on quick visits to Web sites run by criminal defense attorneys, reinforces my belief that it’s easy to reach a false belief that you understand the law based on Googling it. I’m happy to discuss how California law would treat a case like this, but I can’t tell you how the Arizona jury was instructed, because every state’s law is potentially different.

In California the decision between murder and manslaughter is based on whether there was actual honest fear. The decision between manslaughter and an acquittal is based on whether that fear is reasonable. Someone who kills out of an honest belief that they needed to use deadly force is not guilty of murder. But if their response was unreasonable, they are guilty of manslaughter. It’s called “imperfect self-defense.” If their response was reasonable, it’s a not guilty.

I’m not sure if this is the law in Arizona. The doctrine of “imperfect self-defense” might not be available in Arizona. Apparently Brailsford was also acquitted of something called “reckless manslaughter.” How an honest but unreasonable use of force is analyzed under these laws, I am not even going to try to guess.


So was the jury wrong? I don’t know, because I didn’t see the trial. Based on what I know, I think the range of reasonable outcomes included a not guilty.

You’re probably recoiling against that conclusion. I think part of the reason might be that the jury explicitly has to look at the point of view of the shooter to make its decision. And that is a very difficult for most people to do in this case. Judging from my interactions with people on Twitter last night, any attempt I made to get people to understand the situation from the perspective of police officers was quickly turned around to viewing it from Shaver’s point of view.

I can see this situation from both sides.

I can imagine what it’s like to be in the position of the guy who was shot. I speak from some personal experience here, as someone who has had police officers point loaded guns at me twice — once as a teenager and once as an adult. (I did nothing wrong either time and each resulted from a misunderstanding that was quickly resolved.) I know what it’s like to be in that situation, and I can easily put myself in the decedent’s situation. I think just about anyone who watched the video can easily empathize with the plight of the decedent, desperately trying to follow the contradictory barked orders of an angry police officer.

I get it. From Shaver’s point of view, he is trying his best to follow absurd contradictory instructions.

But I can also put myself in the shoes of the police officers. And from the officers’ point of view, he reaches towards his back twice. It’s not five minutes of pure compliance, as I have seen many argue on Twitter. They’re responding to a call of a man with a gun. The guy has already reached towards his back once. He’s been told not to do it again.

If you honestly think this police officer shot while feeling no fear, it’s murder. Many point to the fact that the shooting officer etched “You’re f*cked” into the dust cover of the weapon that was used — a fact the jury was not allowed to hear. But even with that fact, the notion that the cop shot for the fun of it just seems like a wacky conclusion to me. The woman was not shot, and Shaver wasn’t shot until he reached for his waist..

Brailsford may have been too quick on the trigger. He may have acted unreasonably. But I think it’s ridiculous to believe that he shot a man on video for giggles.

So it comes down to a judgment whether the force was reasonable. The jury decided it was. As someone who did not see the trial, I can’t say for sure they were wrong.

Keep in mind: this shooting happened in 2016, long before Stephen Paddock opened fire from a Mandalay Bay hotel room, killing 58 people and wounding 546. But the jurors who heard this case — who heard that the cops were responding to a report of a man pointing a long gun out a hotel window — those jurors knew about Stephen Paddock.

Although the Vegas shooting had not happened yet, others had. And such shootings were on the cops’ mind. One police officer who didn’t shoot because he did not perceive an imminent threat said as much in the trial:

Mesa Police officer Brian Elmore testified Tuesday in a former colleague’s murder trial that he didn’t shoot at an unarmed Texas man because he didn’t see an imminent threat.

. . . .

At a time when active shooters situations have become more common, such tragedies were in Elmore’s mind when he responded to the call, the officer testified.

“I did think about some high-profile situations going on around the country,” he told the jury.

And in a devastating answer for the prosecution, he said he might have fired had he been in Brailsford’s position:

Still, he said, he didn’t shoot because he didn’t see the same threat as Brailsford, who was standing on the left side of Shaver several feet away when officers encountered him.

Piccarreta asked Elmore if he had been standing where Brailsford was standing, would he have shot Shaver.

“It’s possible,” Elmore responded.

In summary, the tactics here were terrible. The instructions were absurd and confusing. The sergeant who barked out the instructions probably created the atmosphere that made the tragedy possible.

But Shaver should never, ever have reached for his waistband. That action probably caused a genuine fear on the part of the police officer who shot him. Might a jury find that fear, and his actions in response, reasonable? Apparently they did. Was that verdict necessarily irrational? I can’t say for sure that it was.

One final thought: thank God Shaver was white, huh? Had he been black, there would be marches and riots. People might die as a result. If this is truly the worst police shooting people have ever seen, let’s remember that it happened to a white guy, and not assume that every police shooting is motivated by race.

[Cross-posted at RedState.]


Moore Accuser Says She Made Notes Underneath Roy Moore’s Signature In Her Yearbook

Filed under: Uncategorized — Dana @ 12:10 pm

[guest post by Dana]

Hoo-boy. Beverly Young Nelson, who has alleged that Roy Moore assaulted her when she was 16, was interviewed on ABC’s Good Morning America today. During the interview she was asked about what she claims is Roy Moore’s signature in her high school yearbook:

“Beverly, he signed your yearbook?” ABC News reporter Tom Llamas asked.

“He did sign it,” Nelson replied.

“And you made some notes underneath?” Llamas followed up.

“Yes,” she answered.

Here is the yearbook signature:


During a press conference last month with her attorney, Gloria Allred, Nelson said that when Moore spotted her yearbook on the counter at the restaurant where she was working and which he regularly frequented, he asked her if he could sign it. She agreed. The yearbook signature was presented by Nelson and Allred as connecting Moore to Nelson at the time of the alleged incident.

After that press conference, Moore’s attorney, Phillip Jarequi responded by asking, “Do you still hold that everything written in that yearbook was written by Judge Moore? Or was it written by somebody else? That’s not an allegation, it’s a question.” He followed up with a request that the yearbook be turned over to a neutral third-party for examination. Allred declined the request, and explained that she would be happy to hand it over to a neutral third-party on the condition that a Select Committee on Ethics open an investigation into Moore.

It’s surprising that someone with the extensive experience that Allred has in these matters, was not transparent about the distinction between the inscription and notes underneath it at the time of the press conference. Perhaps she didn’t know. But, if she didn’t know, then to what level of ineptitude on her part does that speak? And if Allred didn’t know about Nelson adding the notes, why wasn’t due diligence done by the attorney so that she did know? One last thing, I would like to know at what point Nelson added her notes.

It’s good to bear in mind that because Nelson has admitted that she added the notes, does not mean that her claims of assault by Moore are untrue. However, it does undermine her credibility. And unfortunately, it will have a ripple effect with other victims. One last thing, I would like to know at what point in time Nelson added her notes.

Allred is reportedly holding a news conference later today in which she will present evidence to support her client’s claims.


Roy Moore: America Was Last Great When We Had Slavery

Filed under: Uncategorized — Patterico @ 9:00 am

Roy Moore has a long and rich history of crazy quotes, and this is another nugget from the past that got little attention until recently. Moore was asked (by a black person) when America was last great, and his answer (at least as reported by a leftist rag) suggested that his answer was: those glorious days of slavery.

In response to a question from one of the only African Americans in the audience — who asked when Moore thought America was last “great” — Moore acknowledged the nation’s history of racial divisions, but said: “I think it was great at the time when families were united — even though we had slavery — they cared for one another…. Our families were strong, our country had a direction.”

At the same event, Moore referred to Native Americans and Asian Americans as “reds and yellows,” and earlier this year he suggested the Sept. 11 terrorist attacks were divine punishment.

I have a long and well-documented history of distrusting the Los Angeles Times, and this quote is a) truncated, b) not presented in full context, and c) unaccompanied by any video I could find. (If you can find video, let me know.) But on the other hand, Roy Moore also has a documented history of saying boneheaded things in a blatant attempt to appeal to small-minded bigots, which makes it more difficult to reject this as #FAKENEWS.

If you’re already a Moore supporter, you’ll say the L.A. Times made it up, or you’ll find a way to spin it. If you’re not, you’re likely just shaking your head at this. It is interesting, though, as a marker for how times have changed. As John Podhoretz notes:

America — or at least the Republican party — is different in the era of Donald Trump. God bless the UnididStatesh.

[Cross-posted at RedState.]

ICYMI: Amazon Widget Back on Sidebar

Filed under: Uncategorized — Patterico @ 7:38 am

First it was there. Then it was gone.

Then it was there again. Then it was gone again.

Now it’s there yet again. Hopefully, it will be allowed to stay.

More details about the saga in the future. For now, I am just reminding people who are out of the habit of using the widget to get back in the habit!


Republican Congressman Resigns

Filed under: Uncategorized — Dana @ 5:32 pm

[guest post by Dana]

Republican Trent Franks announced his resignation, effective Jan. 31. Here is a portion of his statement:

Given the nature of numerous allegations and reports across America in recent weeks, I want to first make one thing completely clear. I have absolutely never physically intimidated, coerced, or had, or attempted to have, any sexual contact with any member of my congressional staff.

My wife and I have long struggled with infertility. We experienced three miscarriages.

We pursued adoption on more than one occasion only to have the adoptive mothers in each case change their mind prior to giving birth.

A wonderful and loving lady, to whom we will be forever grateful, acted as a gestational surrogate for our twins and was able to carry them successfully to live birth. The process by which they were conceived was a pro-life approach that did not discard or throw away any embryos.

My son and daughter are unspeakable gifts of God that have brought us our greatest earthly happiness in the 37 years we have been married.

When our twins were approximately 3 years old, we made a second attempt with a second surrogate who was also not genetically related to the child. Sadly, that pregnancy also resulted in miscarriage.

We continued to have a desire to have at least one additional sibling, for which our children had made repeated requests.

Due to my familiarity and experience with the process of surrogacy, I clearly became insensitive as to how the discussion of such an intensely personal topic might affect others.

I have recently learned that the Ethics Committee is reviewing an inquiry regarding my discussion of surrogacy with two previous female subordinates, making each feel uncomfortable. I deeply regret that my discussion of this option and process in the workplace caused distress.

We are in an unusual moment in history – there is collective focus on a very important problem of justice and sexual impropriety. It is so important that we get this right for everyone, especially for victims.

But in the midst of this current cultural and media climate, I am deeply convinced I would be unable to complete a fair House Ethics investigation before distorted and sensationalized versions of this story would put me, my family, my staff, and my noble colleagues in the House of Representatives through hyperbolized public excoriation. Rather than allow a sensationalized trial by media damage those things I love most, this morning I notified House leadership that I will be leaving Congress as of January 31st, 2018. It is with the greatest sadness, that for the sake of the causes I deeply love, I must now step back from the battle I have spent over three decades fighting. I hope my resignation will remain distinct from the great gains we have made. My time in Congress serving my constituents, America and the Constitution is and will remain one of God’s greatest gift to me in life.

Apparently, Franks had been the subject of rumors for a number of years:

One Arizona Republican said there had been rumors of inappropriate behavior. The Republican said the congressman had apparently been making plans to run for Senate in 2012, but abruptly canceled those plans.

“There’s been rumors swirling around him for years, at least in 2012,” the Republican said. “And if this turns out to be true, there won’t be that many people who are surprised.”

Given the very personal nature of the statement, my thoughts are with Mrs. Franks and their Franks’ adult children. This can’t be easy for them.


Sen. Al Franken Announces His Upcoming Resignation

Filed under: Uncategorized — Dana @ 10:43 am

[guest post by Dana]

This morning, facing political pressure from his own party, Sen. Al Franken announced from the Senate floor that he will be resigning his Senate seat:

“I am announcing that in the coming weeks I will be resigning as a member of the United States Senate”

It’s interesting that his resignation is not going to be effectively immediately, like John Conyers. It’s a bit clever, given that in a few weeks time the special election will take place in Alabama. This allows time to see whether Republican Roy Moore, who faces serious allegations of sexual misconduct (including that involving a minor) and has the full support of the President of the United States, steps down. After all, if he doesn’t, what would actually compel Franken to follow through with his resignation?

Franken, who remained unapologetic and without contrition in his announcement, also noted this:

“I, of all people, am aware that there is some irony in the fact that I am leaving while a man who has bragged on tape about his history of sexual assault sits in the Oval Office and a man who has repeatedly preyed on young girls campaigns for the Senate with the full support of his party,”

There is a heated battle taking place between the major political parties as Democrats and Republicans valiantly struggle to claim the moral high ground. The problem, of course, is that both sides have sunk to new lows in the mucky cesspool of tribal politics, thus making it virtually impossible for either party to be covered in anything other than hypocritical scum. Until this week, when a cynical calculation was made to jump a rung up on the ladder of principles and try to force the hand of Republicans, Democrats circled the wagons for Al Franken and cited legacy and iconic status as a justification for keeping John Conyers on board. At the same time, Republicans have not only been defending Roy Moore from serious allegations involving a minor, but disgustingly continue to support him even when they believe the allegations are true. Today, on the left side of the aisle, Conyers is no longer in office and Franken has announced his upcoming resignation. On the right side of the aisle, Moore is being supported by a Republican president who also faces allegations of sexual misconduct, as well as being supported by substantial numbers of Republicans in Alabama. Given this, exactly who gets to make a claim to the moral high ground now? Unless Moore steps down, certainly not Republicans. Unfortunately, Republicans sacrificed their principles in November, 2016.


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