Missouri city to require written consent to search a vehicle

Columbia, Missouri police officers will soon need your written permission to search your car if they don't have a warrant or probable cause, reported the Missourian.

A new department policy will require police officers to fill out a consent-to-search form and ask the driver to sign it. If the driver declines to consent, that will be noted on the form and the officer will need to request a warrant from the court.

Current policy allows officers to search vehicles with the driver's verbal permission. Otherwise they need probable cause or a warrant signed by a judge.

Saying implementation of the new policy isn't quite complete, Columbia Police Chief Ken Burton declined to talk about the change.

Officers who say they have received consent to search are often contradicted by defendants, said David Tyson Smith, a lawyer at Smith and Parnell LLC. He said the new policy will be “good for the citizens.”

Smith declined to speak about specific cases, citing his clients’ privacy, but he said he has handled cases where consent was called into question. Videotape is not always helpful, Smith said, due to occasional audio issues or poor camera angles.

The new policy should also help the police force verify that consent was given, Smith said.

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GateHouse: Gun owners down, gun purchases up

Matthew T. Mangino

GateHouse Media

September 23, 2016

Gun enthusiast will argue that guns are not just for killing. They can be collected, used for target practice, hunting and self-defense — although the latter two may include killing as well. However, all can agree that guns make killing easy. In fact, killing is so easy with a gun it is the weapon of choice for criminals and killers.

Where do criminals get guns?

Privately owned firearms are stolen in America between 300,000 and 600,000 times per year, according to researchers at Harvard and Northeastern universities, reported The Guardian. On the high end, that is more than 1,600 guns stolen every day, more than one every minute.

When a gun is stolen from a car, truck or home, it doesn’t just disappear. According to a 2012 Bureau of Alcohol, Tobacco, Firearms and Explosives report, Firearms Reported Lost or Stolen, lost and stolen guns posed a “substantial threat” to public safety and to law enforcement. The report suggested, “Those that steal firearms commit violent crimes with stolen guns, transfer stolen firearms to others who commit crimes, and create an unregulated secondary market for firearms.”

Americans own an estimated 265 million guns, more than one gun for every American adult. The new Harvard and Northeastern universities’ survey estimates that 133 million of these guns are concentrated in the hands of just 3 percent of American adults — a group of super-owners, reported The Trace.

The survey also found a sharp cultural shift in American gun ownership. Twenty years ago, the primary reason people listed for keeping a gun at home was recreation. Today, the primary purpose for ownership is protection.

“When I look at our survey, what I see is a population that is living in fear,” Deb Azrael, a researcher at the Harvard School of Public Health and one of the lead authors of the study, told the Washington Post. “They are buying handguns to protect themselves against bad guys, they store their guns ready-to-use because of bad guys, and they believe that their guns make them safer.”

Interestingly, surveys of gun ownership in America continue to find the percentage of Americans who own guns decreasing, even as Americans buy more guns. The downward trend in gun ownership is consistent across national polls.

The percentage of American households owning guns is at a near 40-year low in the latest CBS News poll released this summer, even though gun purchases are at historic highs. According to CBS, their survey included 1,001 Americans in the aftermath of the Orlando nightclub shooting, 36 percent of U.S. adults either own a firearm personally or live with someone who does. That’s the lowest rate of gun ownership in CBS polls going back to 1978.

So how do you keep guns out of the hands of criminals amid this odd phenomenon of gun ownership? GOP presidential candidate Donald Trump has an idea. He has proposed a nationwide stop-and-frisk policy, reported Time Magazine.

At a town hall meeting this week, Trump said the policy “worked incredibly well” in New York City, arguing that it is “proactive” and should be expanded across the country.

Stop-and-frisk is a controversial program that allows police to stop a person on the street based on suspicion of criminal activity and to frisk the person in search of a weapon. Several years ago, The New York Times reported, that federal Judge Shira A. Scheindlin wrote in an opinion calling for the end of stop-and-frisk in New York City that it had led police officers to stop “blacks and Hispanics who would not have been stopped if they were white.”

Not to mention that Trump’s “initiative” is normally a local issue implemented by municipal or state authorities. It is doubtful that a president could impose a nationwide stop-and-frisk initiative, nor should he or she advocate for such a policy.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him atmattmangino.com and follow him on Twitter at @MatthewTMangino.

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Trump proposes nationwide implementation of controversial 'stop and frisk' policy

Republican presidential nominee Donald Trump proposed a nationwide stop-and-frisk policy, when asked how he would prevent violence in black communities as president, reported Time.

Trump, who has previously spoken out in favor of the policy, made the comments during the taping of a Fox News town hall on Wednesday, the Associated Press reported.

Stop-and-frisk, a controversial program that allows police to stop a person on the street based on suspicion of criminal activity, was expanded in New York City under Mayor Michael Bloomberg until a federal judge ruled in 2013 that it was unconstitutional and racially discriminatory. It has since been scaled back.

While city officials had argued the program was an effective crime-fighting measure, Judge Shira A. Scheindlin wrote in her decision that it had led police officers to stop “blacks and Hispanics who would not have been stopped if they were white,” the New York Times reported.

But at Wednesday’s town hall, Trump said the program “worked incredibly well” in New York City, arguing that it is “proactive” and should be expanded across the country.

The other problem for Trump is that a initiative like "stop-and-frisk" is locally implemented by municipal or state authorities.  It is doubtful that a president could impose a nationwide stop-and-frisk initiative. 

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Chicago is the blame for the nationwide uptick in crime?

The Brennan Center anticipates that the national murder rate will rise 13.1 percent in 2016 over 2015.

But, according to the Washington Post, there is a catch? Crime overall will remain flat. And half of the increase this year, the Center's analysis suggests, will be due to the spike in Chicago alone. Half of the 31.5 percent increase in murders between 2014 and 2016 is solely a function of increases in Chicago, Baltimore and Washington.

The report updates preliminary analysis from the Center earlier this year with new data. At that point, the Center's analysis suggested that "while Americans in urban areas have experienced more murders this year than last year, they are safer than they were five years ago and much safer than they were 25 years ago." The new numbers don't change that core finding. "These findings undercut media reports referring to crime as 'out of control,'" the new report reads, "or heralding a new nationwide crime wave. But the data do call attention to specific cities, especially Chicago, and an urgent need to address violence there."

Particularly relative to the long-term trend the Brennan Center demonstrated only a subtle change in the national crime rate, anticipating a 1.3 percent increase this year.

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The Vindicator: Selecting a jury for the trial of Robert Seman is crucial

Matthew T. Mangino

The Youngstown Vindicator

September 19, 2016

The composition of a jury in a criminal trial is extremely important. In fact, there is an old joke among lawyers about the difference between jury trials in Great Britain versus the United States. In Britain, the trial starts once the jury selection ends – in America, the trial is already over.

That process is playing out in Mahoning County. Common Pleas Judge Maureen Sweeney is presiding over jury selection for Robert Seman. Seman is accused of setting a house fire that killed 10-year-old Corinne Gump and her grandparents in 2015. The fire occurred the morning that Seman was to face trial for sexually assaulting Gump.

Tedious

A case can turn on the composition of a jury. As a result, the process can be time-consuming and tedious. The selection of a capital jury, one that will be asked to impose the death penalty, is jury selection on steroids.

The most dramatic difference between a regular jury and a capital jury is that each juror in a capital case must be “death qualified.” A capital juror may not be categorically opposed to the death penalty, but at the same time the juror may not be of the opinion that a first-degree murder conviction must result in the death penalty.

Last week, 19 jurors out of a pool of 160 were told to report to the court. Each of those jurors had completed a questionnaire that inquired into the potential juror’s background as well as their beliefs, relationships and opinions on various aspects of the criminal justice system.

As those jurors appear in court they are subject to individual voir dire, or in layman’s terms, individual questioning. The purpose of examining individual jurors is to reveal any potential bias.

Subjects for inquiry include: Has the juror ever been the victim of a crime? Does the juror have a family member in prison or is she related to someone in law enforcement?

Long before jury selection begins in a capital case, the attorneys involved know what they’re looking for in a juror – young or old; educated or uneducated; professional or blue collar; even whether the jury panel should be dominated by men or woman.

When there are resources available prosecutors or defense attorneys may employ the services of a jury consultant. A jury consultant can assist counsel in selecting a jury. Through focus groups and research a jury consultant will develop a profile for potential jurors.

During Seman’s jury- selection process, counsel on both sides will whittle down the number of potential jurors through a series of challenges. The first is a preemptory challenge. In Ohio each side in a capital case has six chances to remove a potential juror for any reason other than race, which is not an issue in this case.

The second type of challenge is for “cause.” If counsel can articulate a reason why a juror should be removed from the panel the judge will decide whether or not to excuse the juror. For instance, a juror tells the attorneys and judge that she has made up her mind about guilt based the news accounts that she has read or heard. The court will excuse the juror for cause without counsel having to use a preemptory challenge.

The more jurors who have been tainted by the media leads to a different problem – can a fair and impartial jury be empaneled in Mahoning County? It is not a question of whether a juror has heard about a high profile case like Seman’s, but whether a juror can set aside what they have heard and still be fair and impartial.

Judge Sweeney ruled against the defense’s request for a change of venue. The defense wanted the judge to bring a jury in from another county or have the court move the trial. Sweeney said the request to move the trial was “premature.”

However, as jury selection continues, and if it becomes increasingly difficult to seat jurors, the judge could reconsider the request.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010 “ was released by McFarland Publishing. You can reach him at www.mattmangino.com.

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Amid opioid addiction crisis, drugmakers protect aggressive prescribing

The makers of prescription painkillers have adopted a 50-state strategy that includes hundreds of lobbyists and millions in campaign contributions to help kill or weaken measures aimed at stemming the tide of prescription opioids, the drugs at the heart of a crisis that has cost 165,000 Americans their lives and pushed countless more to crippling addiction.

The drugmakers vow they’re combating the addiction epidemic, but The Associated Press and the Center for Public Integrity found that they often employ a statehouse playbook of delay and defend that includes funding advocacy groups that use the veneer of independence to fight limits on the drugs, such as OxyContin, Vicodin and fentanyl, the narcotic linked to Prince’s death.

The pharmaceutical companies and allied groups have a number of legislative interests in addition to opioids that account for a portion of their political activity, but their steady presence in state capitals means they’re poised to jump in quickly on any debate that affects them.

Collectively, the AP and the Center for Public Integrity found, the drugmakers and allied advocacy groups employed an annual average of 1,350 lobbyists in legislative hubs from 2006 through 2015, when opioids’ addictive nature came under increasing scrutiny.

“The opioid lobby has been doing everything it can to preserve the status quo of aggressive prescribing,” said Dr. Andrew Kolodny, founder of Physicians for Responsible Opioid Prescribing and an outspoken advocate for opioid reform. “They are reaping enormous profits from aggressive prescribing.”

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PLW: Pa. Supreme Court Further Restricts Sex Offender Registry

Matthew T. Mangino

The Pennsylvania Law Weekly

September 16, 2016

The remains of Jacob Wetterling, abducted from a rural road in Minnesota 27 years ago, were found this month.

The abduction of the 11-year-old boy led to the 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which required states to maintain sex offender registries and establish guidelines for the registries.

In October 1989, Wetterling was bicycling with his brother and a friend to a store near St. Joseph, Minnesota. During the ride, an armed man wearing a nylon mask abducted Wetterling. Investigators later learned that halfway houses in St. Joseph housed sex offenders after their release from prison. The Jacob Wetterling Act required states, including Pennsylvania, to establish stringent registration programs for sex offenders—including lifetime registration for certain offenders. The registration of sex offenders in Pennsylvania, known as Megan's Law, has had a tumultuous existence, including a number of revisions to comply with several successful challenges before the Pennsylvania Supreme Court.

Last month, the state's high court further refined the state's sex offender registry. The Supreme Court made a ruling that will have an impact on determining which sex offenders will be considered lifetime registrants. The court narrowed the ability of the authorities to designate an offender as a lifetime registrant as the result of being convicted of multiple sex offenses in a single incident.

The history of Megan's Law is long and at times confusing. In 1995, Gov. Tom Ridge signed into law what has commonly been referred to as Megan's Law. Following its enactment there were several amendments to the law as a result of court decisions.

About a decade later, Gov. Ed Rendell signed into law Senate Bill No. 92, making significant changes to Megan's Law. Most notably, information on all registered sexual offenders would now be available to the public through the internet. Then in 2012, Gov. Tom Corbett signed into law Senate Bill No. 1183. The law also known as the "Adam Walsh Bill," brought the state into compliance with The Adam Walsh Child Protection and Safety Act. Pennsylvania joined a coordinated and comprehensive national sex offender registry.

Under the new law—known as the Sex Offender Registration and Notification Act (SORNA)—registrants will be placed in one of three tiers based on their underlying offenses.

• Tier I. Registration for 15 years with required annual in-person reporting to the Pennsylvania state police and updated photograph.

• Tier II. Registration for 25 years with semiannual reporting requirements.

• Tier III. Registration for life with in-person reporting every three months.

There is a mandatory minimum sentence of two or three years in prison for the first failure to report and a five-year prison sentence for the first failure to provide accurate information to the state police.

The law also required that two or more convictions of Tier I offense would bump the offender to Tier III or lifetime registration.

The Supreme Court's decision last month will have a significant impact on which tier a sex offender will be assigned. The decision will also impact how prosecutors approach plea negotiating with sex offenders and the way defense attorneys explain to their clients the collateral consequence of a conviction.

In A.S. v. Pennsylvania State Police ___ A.3d ___ (Pa. 2016), the Pennsylvania Supreme Court in an opinion written by Justice Kevin M. Dougherty held that "the statute SORNA 42 Pa.C.S. Section 9799.10-9799.41 requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a 10-year period of registration."

Prior to the decision, the state police considered multiple Tier I convictions, even if growing out of the same incident, as two or more convictions and therefore triggering lifetime registration under the act.

The A.S. decision grew out of the case of a 21-year-old Montgomery County man who was convicted of persuading his 16-year-old girlfriend to take and send photographs of herself, which were sexually explicit. He was arrested in 2000 when her father found the photographs. After pleading guilty to seven child pornography counts, he was sentenced to five months to 23 months in the county jail, plus five years of probation.

At A.S.'s sentencing in 2002, everyone including the judge believed A.S. was subject to a 10-year registration period, not lifetime registration. According to the court's opinion, A.S.'s mother testified, "My son made a mistake, a terrible, terrible error in his life that's affected him. He's been punished. He will be punished. He has a 10-year reporting component to this punishment," to which the trial court replied, "I know." The prosecutor confirmed, "He's now facing a 10-year registration for Megan's Law. That's true."

After A.S. was released from jail, he registered as a sex offender with the state police. He then successfully completed all aspects of his criminal sentence and complied with all aspects of his reporting obligation.

After 10 years had passed, A.S. contacted the state police and requested removal of his name from the registry. The state police refused, claiming his guilty plea to sexual abuse of children and unlawful contact with a minor triggered lifetime registration under Section 9795.1(b) (1). A.S. filed a mandamus action with the Commonwealth Court.

The Commonwealth Court agreed with A.S. The Supreme Court agreed to hear the case when the state police appealed.

The Supreme Court majority included Chief Justice Thomas G. Saylor and Justices Kevin M. Dougherty, Max Baer and Christine Donohue. Justices Debra McClosky Todd and David N. Wecht dissented.

The decision means sex offenders convicted of Tier I offenses including luring a child into a vehicle, institutional sexual assault, indecent assault, corruption of minors and possessing child pornography will not be required to register for life on their first offense, regardless of the number of offenses that grew out of a single incident.

The court's decision requires that a one-time offender must become a recidivist to qualify for lifetime registration.

Dauphin County District Attorney Ed Marsico told the Harrisburg Patriot-News that the decision likely will have an impact on plea negotiations in certain sex-crime cases. The difference in registration requirements—some offenses carry registration terms as low as 15 years—can prompt a defendant to plead guilty to a lesser sex crime to avoid the lifetime registration.

"The biggest impact will be with plea negotiations," Marsico said. "These registration requirements are often at issue."

On the other hand, defense attorneys often find it challenging to provide their clients with advice on the collateral consequences of a conviction. Whether it's the length of a driver's license suspension, the disqualification of a professional license or, as with sex offenders, the level of registration, fully appreciating the collateral consequences of a conviction can be daunting.

Often the distinction is based on whether the consequences are civil or criminal. The decision with regard to sex offender registration got a little murky after the A.S. decision.

The Supreme Court has held the registration provisions are not punitive for purposes of constitutional challenges. However, the high court acknowledged in A.S., "Whether the statute is deemed a penal one subject to the rule of lenity and strict construction or not ... the fact is that interpretations—and predictions—of the statute's effect have to be made by different persons and entities at different times: prosecutors in charging decisions, defense counsel in rendering advice, defendants in determining courses of action, trial judges in imposing sentence, courts on appeal, PSP in enforcement, and then the defense, prosecution and courts repeated again if the defendant is charged with violating his or her registration obligation."

"Given the obvious burden of registration and the potentially serious criminal consequences of a lapse ... to state the law is not 'penal' is little answer to a defendant who had good reason to believe he had done all required of him, only to find himself staring at lifetime registration," wrote Dougherty.

An offender must have a chance to rehabilitate before being penalized with a second offense, the high court found.

"We do not dispute the commonwealth's argument that each image of child pornography possessed represents a separate, independent crime," Dougherty wrote.

However, Dougherty said, clear and simple, "the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses."

Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll," 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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