GateHouse: Prosecutors face off in public quarrels

Matthew T. Mangino
GateHouse News Service
April 18, 2014
Ongoing public battles over the reach and authority of prosecutors has cast a shadow over corruption probes in two states. The American Bar Association established a set of standards for prosecutors to use as a guide for professional conduct and performance. Cases in New York and Pennsylvania have tied these standards in knots.
Recently, Manhattan U.S. Attorney Preet Bharara challenged New York Gov. Andrew Cuomo's decision to dismantle a commission examining public corruption and said his office would take over the investigations.
Bharara has made pursuing corruption at the state capital a priority since being appointed by the president in 2009. The New York Times quoted him as saying during a radio interview, "Nine months may be the proper and natural gestation period for a child, but in our experience not the amount of time necessary for a public corruption prosecution to mature."
In Pennsylvania, the attorney general, a former lead prosecutor in the attorney general’s office and the district attorney of Philadelphia are embroiled in a bitter dispute. The acrimony boiled over after Attorney General Kathleen Kane decided to drop a political corruption probe in Philadelphia.
The spectacle of prosecutors engaging in bitter public debates is unsettling.
The ABA standards provide, “The decision to institute criminal proceedings should be initially and primarily the responsibility of the prosecutor.” In fact, section 3-3.9 (b) provides, “The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction.”
In March, the Philadelphia Inquirer reported that Kane's office shut down a corruption investigation that reportedly involved at least four Philadelphia legislators allegedly accepting improper payments.
The following day, Kane held a press conference saying that she dropped the investigation because it became “non-prosecutable” once charges were dismissed against the informant in the case. Kane also said that the investigation was mismanaged, and that her office found evidence that it was racially biased.
A former lead prosecutor in the attorney general’s office, Frank G. Fina, countered in an Inquirer op-ed. “My colleagues and I conducted our investigation honestly, ably, and with integrity. I am willing to sit down at the same table with Kane … where we can each respond to any questions that are posed about the investigation.”
Philadelphia District Attorney Seth Williams was also sharply critical of Kane. Fina is now a prosecutor in Williams’ office. The attorney general “drops a case supported by hundreds of hours of devastating tapes because the main witness got a deal on a bunch of government fraud charges," he wrote in an op-ed that also appeared in The Inquirer. “As a DA, I think this might be the most disturbing aspect of the whole sordid spectacle. You don't have to be a prosecutor to know this is how it's done."
Kane recently fired off a letter to the Philadelphia district attorney suggesting that "any law enforcement agency interested in taking this case should do so." Williams wrote back immediately, telling the attorney general to hand over all of the original evidence although he had already told The Inquirer that Kane's criticism of the investigation and its key undercover operative have permanently tainted any potential prosecution.
In New York, an area where federal prosecutors have turned their notoriety into elective office — Rudy Giuliani, Chris Christie — Bharara kept railing against Cuomo, "The sequence of these events gives the appearance, although I am sure this is not the intent, that investigations potentially significant to the public interest have been bargained away as part of the negotiated arrangement between legislative and executive leaders."
Asked about reports that Cuomo's aides interfered in the commission's decisions, Bharara told The Times, "I don't know what all the facts are there. … What I can tell you is, it is impossible to overstate the importance of independence on the part of any investigative body."
There appears to be no end to the unseemly and unsettling war of words.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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The Cautionary Instruction: Confidential informants under increasing scrutiny

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
April 18, 2014
In 2013, 246 people were murdered in Philadelphia but the police only received 82 tips about those homicides. Officials say those numbers are indicative of the “no snitching” culture in Philadelphia.
Philadelphia officials are actively trying to recruit informants to help solve murders through innovative social media efforts and good old fashioned rewards. Ironically, at the same time a high profile Philadelphia informant is being eviscerated in the media. Tyrone B. Ali an informant who was helping the Attorney General’s office in a corruption probe has been hung out to dry.
Informants are a hot topic in Philadelphia. Anyone thinking of cooperating with police is certainly going to be influenced by the battle between the attorney general, a former lead prosecutor in the attorney general’s office and the district attorney of Philadelphia.
Last month, Attorney General Kathleen Kane decided to drop a political corruption probe in Philadelphia.
One of the primary prosecutors in the investigation was Frank G. Fina. He is now front and center in this embarrassing public dispute along with his new boss Philadelphia District Attorney Seth Williams.
The dispute is centered on the viability of corruption prosecutions which hinge on the credibility, or lack thereof, of Ali.
A confidential informant is a person usually accused of a crime that either comes forward, or is asked by police, to offer assistance in exchange for leniency. Jailhouse informants, inmates often already convicted, are commonly recruited to testify about statements made by other inmates accused of murder, organized crime, sexual assault and just about any other crime.
The confidential informant has a useful place in the investigation and prosecution of criminal conduct. The closely vetted and reliable confidential informant can provide a wealth of information about an ongoing criminal enterprise. A drug informant can make controlled hand-to-hand purchases of illegal drugs without which there would be few successful drug prosecutions.
At times, confidential informants go sour. In Sarasota, Florida prosecutors dropped or reduced felony drug charges against more than a dozen people after learning that the police informant who set up the drug deals had sex with some of the defendants.
The informant crossed ethical and legal boundaries in what is already a murky world where criminals work with undercover officers under unseemly and often dangers circumstance to document criminal activity.
Although almost invisible to the public, the use of criminal confidential informants permeates the criminal justice system across the country. According to Alexandra Natapoff in Secret Justice: Criminal Informants and America’s Underground Legal System, “These deals typically take place off-the-record, subject to few rules and little oversight. While criminal informants…can be important investigative tools, using them has some serious costs.”

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.
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Texas executes serial killer Tommy Lynn Sells

The 15th Execution of 2014
Convicted serial killer Tommy Lynn Sells, who was sent to prison in 1999 and claimed responsibility for dozens of murders across the country, was executed on April 3, 2014 in Texas, reported ABC News.

Sells, 49, was convicted of killing 13-year-old Katy Harris while she slept in her Del Rio, Texas, home. Her murder landed Sells on death row, but he has been linked to at least 17 other killings and claims he has killed as dozens more.

Sells declined to make final remarks before his death, then took a few breaths, closed his eyes and began to snore as the lethal-injection drugs took effect, The Associated Press reported. He soon stopped moving and was pronounced dead 13 minutes later at 6:27 p.m. CT.

Sells' execution earlier had been halted when a district court ruled that the Texas prison system was required to disclose information about its lethal-injection drugs supplier and how the drugs are tested. But a federal appeals court on Wednesday threw out the ruling and reversed the decision.

Sells' attorneys made a plea to the U.S. Supreme Court to stay the serial killer's execution, but their plea was rejected Thursday.

In a statement to ABC News Thursday, Sells' attorneys said, "It is our belief that how we choose to execute prisoners reflects on us as a society. Without transparency about lethal injections, particularly the source and purity of drugs to be used, it is impossible to ensure that executions are humane and constitutional. It is our hope that the U.S. Supreme Court and the Texas courts will ultimately agree that we must have transparency about the execution process in order to ensure that prisoners are able to protect their Eighth Amendment rights."

Sells, an extreme example of someone with a murderous mind, talked about his gruesome past with ABC News in a chilling 2010 jailhouse interview.

As a young boy growing up in St. Louis, Sells was addicted to killing by the time he was 14.

"I am hatred. When you look at me, you look at hate," Sells said in 2010. "I don't know what love is. Two words I don't like to use is 'love' and 'sorry,' because I'm about hate."

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Philadelphia police will ignore immigration detainers

Philadelphia police will no longer honor immigration detainers if the mayor signs an executive order today outlawing the practice, reported the Philadelphia Daily News.
The order is expected to preclude police from honoring detainer requests by U.S. Immigration and Customs Enforcement except in cases where a person is convicted of a first- or second-degree felony involving violence, and only when ICE secures a warrant to support the detainer.
Michael Resnick, the city's director of public safety, had testified about that pending change at a City Council hearing last month. He did not return a call for comment late yesterday afternoon.

Mayoral spokesman Mark McDonald would not comment yesterday on whether the mayor is going to sign the order tomorrow.
ICE detainers or "holds" are requests by federal immigration authorities for police to hold a person who was detained for an alleged crime for up to an additional 48 hours. That would allow ICE to take the person - if suspected of being an undocumented immigrant or a noncitizen - into their custody for possible deportation.
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California's state-of-the-art medical prison a 'bust'

California's $840-million medical prison — the largest in the nation — was built to provide care to more than 1,800 inmates, reported the Los Angeles Times.
Since opening in July, the state-of-the-art facility has been beset by waste, mismanagement and miscommunication between the prison and medical staffs.
Prisoner-rights lawyer Rebecca Evenson, checking on compliance with disabled access laws, was shocked by the problems. "This place was supposed to fix a lot of what was wrong," she said. "But they not only were not providing care, but towels or soap or shoes."

Reports by prison staff and inmate-rights lawyers described prisoners left in broken wheelchairs and lying on soiled bedsheets. Administrators had to drive into town to borrow catheters from a local hospital.

The state also had underestimated the number of nurses and guards needed, and there were not enough staffers to unlock doors, help disabled prisoners move about or take patients to the showers. Other inmates were recruited to help. Prisoner advocates reported seeing a man in a wheelchair whose job it was to push the wheelchair of another inmate. A disabled prisoner said he had been left to sit on the toilet for hours.
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'Active Shooter' incidents not on the rise-contrary to public opinion

As defined by the federal government, an active shooter "is an individual actively engaged in killing or attempting to kill people in a confined and populated area, typically through the use of firearms." Even though they may wish to kill large numbers of victims, these assailants typically fall short of their objective.
Among the 110 active shooter cases identified since 2000, nearly three-quarters resulted in fewer than four fatalities, which is the usual threshold for mass murder, wrote James Alan Fox, the Lipman Professor of Criminology, Law and Public Policy at Northeastern University, in the USA Today.
Moreover, nearly one-quarter of the active shooter cases were resolved without any victims losing their lives. While all of these episodes were undoubtedly frightening to those impacted directly or indirectly, the majority should not be equated with the few catastrophic slayings that have grabbed the headlines and alarmed the nation.
Besides the confusion surrounding terminology, evidence suggesting an increase in active shooters is suspect, at best. The data used by the FBI and others focusing on active shooter incidents derive in large part from newspaper sources. That the term "active shooter" is of recent vintage tends to bias any attempt to examine trends based on searching news coverage.
In sharp contrast to the "active shooter panic" is that mass shootings, instances in which four or more are killed by gunfire, are not on the rise. Over the past three-plus decades, according to official homicide data reported annually by law enforcement agencies nationwide, there have been on average about 20 mass shootings a year, with neither an upward or downward trajectory. The only increase has been in publicity and dread.
Fox concludes, "The reason why the rampant misimpression about a raging epidemic in active shooters matters so greatly is in how it drives public opinion and public policy on guns, mental health and security. Excessive alarm, fueled by misleading news reports, leads to knee-jerk responses that are not necessarily for the best."
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Looking for what works in preventing school violence

Teaching students alternatives to violence and improving their access to mental health services are among the best ideas officials say they have for preventing the kind of bloodshed that has struck a long list of schools, reported the Pittsburgh Post-Gazette.
 Researcher Manny Sethi, an orthopedic trauma surgeon and a Vanderbilt assistant professor of orthopedic surgery and rehabilitation said, from anti-bullying and zero-tolerance initiatives to metal detectors and programs that allow students to report threats anonymously, schools have embraced a variety of measures to keep schools safe.
But some simply don't work, Dr. Sethi said. After reviewing data on 27 programs, he and his team decided to pilot one of them -- designed by Harvard psychologist Ron Slaby -- in a violence-plagued Nashville middle school.
Before the study, the students completed questionnaires regarding their beliefs about violence and ability to manage volatile situations. Over several weeks, students used role-playing to learn how to avoid violence at heated moments, such as when one student calls another a name or hits on a peer's girlfriend.
Dr. Sethi said the exercises helped students "build the machinery of understanding conflict and how it progresses and how to get yourself out of it."
On a second questionnaire, administered after the exercises, students reported that they were less likely than before to be a target of bullying, less likely to hit or push others, less likely to cheer if a fight broke out and more likely to try to defuse a potential altercation. Some of the improvements were statistically significant, while others fell below that threshold.
Alicia Chico, a social worker with the Allegheny Intermediate Unit, said strategies are available for training staff and identifying troubled students. But, she said, teachers are often too busy to deal with the issues.
"This has to start with who is interacting with students the most and that is the teacher. But a lot of times these issues aren't addressed because teachers have so many things they have to get done and so many constraints on them," Ms. Chico said.
Cirecie West-Olatunji, president of the American Counseling Association, agreed that more training and consultation with mental health professions is needed for classroom teachers. In addition, she said, counselors, social workers and school psychologists should be given time to walk the halls of schools and develop relationships with students and their families.

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