The President's "fixer" gets 36 months in prison

Michael Cohen, President Donald Trump’s former personal lawyer, was sentenced to three years in prison and millions in forfeitures, restitution and fines by U.S. District Judge William Pauley III of the Southern District of New York, reported the National Law Journal.

The sentence was handed down after Cohen made a series of guilty pleas. Special Counsel Robert Mueller’s office prosecuted Cohen for lying to Congress, and the Southern District of New York U.S. Attorney’s Office prosecuted him for campaign finance violations, tax fraud and other charges.

Pauley handed down the sentence after Cohen’s emotional personal plea for leniency. As members of Cohen’s family openly wept, Pauley said that while Cohen’s willingness to plead guilty to a host of crimes in Manhattan, as well as to lying to Congress as part of Mueller’s investigation, and his contrition before the court were notable, they “did not wipe the slate clean.”

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McConnell: Senate will vote on FIRST STEP Act.

Senate Majority Leader Mitch McConnell announced that the Senate will vote on the FIRST STEP Act, an expansive criminal justice reform bill, within the month, reported Jurist. The bill passed the House in May of this year and has awaited a Senate vote ever since.

McConnell previously said that the Senate would not vote on the bill this year. The legislation has drawn criticism from some Republicans for being soft on crime, but President Trump endorsed the FIRST STEP Act last month, which increased pressure on McConnell to move ahead with a vote in the Senate. The proposed criminal justice reforms would moderate some of the tough on crime laws of the 1980s and 1990s and enjoy support among Democrats and many Republicans.

The FIRST STEP Act sets out a series of prison and sentencing reforms designed to reduce harsh sentencing, facilitate rehabilitation and combat recidivism. The bill would expand judicial discretion in sentencing, reduce the length of mandatory minimum sentences, make the Fair Sentencing Act of 2010 apply retroactively, expand incentive programs that reward good behavior and early release programs for non-violent, low-risk offenders in the federal prison system. The bill exempts violent offenders, including those convicted of human trafficking and terrorism, from early release programs.

The FIRST STEP Act is one of several bills the Senate will take up in the final weeks of the year before the 116th Congress is sworn in on January 3rd.

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The President aka 'Individual 1' faces felony campaign finance violations

The New York prosecutors' Michael Cohen sentence memo contains the following line, “On approximately June 16, 2015, Individual-1, for whom Cohen worked at the time, began an ultimately successful campaign for President of the United States.”

According to the USA Today, the memo goes on to charge “Individual-1” with conspiracy to commit the same felony campaign finance violations that Cohen pleaded guilty to. There appears to be no question whatsoever that if Justice Department guidelines allowed it, Mueller would have already indicted Trump.

Apparently, though, Mueller was just too cryptic for the president who, after Cohen’s sentencing memo was released, tweeted out, “Totally clears the President. Thank you!”
Now, the tragedy, at least if you are a member of Donald Trump’s inner circle: The net is closing in. The most interesting thing in the sentencing memo was Mueller revealing that the conspiracy to violate campaign finance laws was not just limited to “Individual-1” and Cohen. “Executives” of The Trump Organization (called “the company” in the memo) concocted a scheme to reimburse Cohen for his illegal campaign contributions without revealing that they were campaign-related.

It isn’t clear from the memo who the “executives” are, but there is a very small pool of candidates and most of them are members of the Trump family. One or more of them is almost certain to be indicted.

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Disciplinary Board recommends 1 year suspension for former DA

Former Centre County District Attorney Stacy Parks Miller should be suspended for one year and one day, the Pennsylvania Disciplinary Board has recommended, reported The Legal Intelligencer. The conduct at issue included having ex parte communications with judges and using a fake Facebook account to “snoop” on suspects.

The board’s recommendation, which was filed Thursday, is an increase over the three-month suspension that the hearing committee recommended in the case. The state Supreme Court must make the ultimate decision regarding Parks Miller’s disciplinary case, but if the high court imposes the lengthier suspension, it will add more than a few months, since attorneys suspended for longer than one year need to petition for reinstatement before they can begin practicing again.

Parks Miller faces charges stemming from ex parte communications she had in seven matters, most of which involved retired Centre County Judge Bradley Lunsford, as well as charges stemming from the creation of a fictitious Facebook account, which made friend requests to defendants and friended the pages of several establishments suspected of selling bath salts.

According to the disciplinary board’s 45-page recommendation, the Facebook issue raised a novel question in Pennsylvania of whether a prosecutor violates disciplinary rules by “engaging in a covert activity through the use of social media.”

Although the hearing committee had determined that the conduct was not a violation but only showed “lack of care” by Parks Miller, the disciplinary board said the conduct rose to the level of a violation.

“[Parks Miller] knowingly created a fake social media persona, provided access to a fake Facebook page to her staff, and indicated that the page should be used to ‘masquerade’ and ‘snoop’ around on Facebook,” the filing said. “The Facebook page created by [Parks Miller] and disseminated to her staff was fake, and constituted fraudulent and deceptive conduct.

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President looks to bring back George H.W. Bush era attorney general

President Trump will nominate William Barr, the George H.W. Bush-era leader of the Justice Department who was known for his hardline approach to drug crime, as his next attorney general, reported The Crime Report. Speaking with reporters as he prepared to leave Washington for a conference in Missouri, he said Barr was his “first choice from day one,” though he acknowledged he didn’t know him until recently, reports Fox News.

“I think he will serve with great distinction,” Trump said.

If he’s confirmed, Barr would replace Matthew Whitaker, the former Jeff Sessions chief of staff who took over as acting attorney general last month.

Barr, 68, is a well-respected Republican lawyer who served as attorney general from 1991 to 1993 under President George H.W. Bush. Although he is regarded as a bipartisan figure, given the political fights enveloping the Justice Department, any attorney general nominee is likely to face tough questions at a Senate confirmation hearing, the Washington Post reports.

The president has repeatedly accused the department of launching a biased investigation into his campaign and claimed that special counsel Robert Mueller is conducting a “witch hunt” targeting him and his aides.

Democrats want assurances the department’s next leader will resist political pressure from the White House; Republicans want assurances the department will operate investigations in an evenhanded fashion toward members of both parties. Barr’s past statements about the Russia probe, in which he has questioned the political tilt of Mueller’s team, could give some Democrats fodder to attack Barr’s nomination.

Republican operatives who support Barr noted he once worked alongside Mueller in the Justice Department and said his track record should ease any Democratic concerns that the department would see its independence eroded. One source said Barr has a bluntness that is likely to resonate with the president.

“The president is very, very focused on [a candidate] looking the part and having credentials consistent with the part,” the person said.

Barr’s daughter, Mary Daly, is a senior Justice Department official overseeing the agency’s efforts against opioid abuse and addiction. During Barr’s earlier stint as AG, DOJ issued a “Case for More Incarceration.”

In fact, in some quarters he is considered the “architect” of mass incarceration, Vox reports.

Civil rights advocates, for instance,  note that as deputy attorney general from 1990 to 1991, and as attorney general (1991-1993), he pushed for and helped implement punitive criminal justice policies, including a 1990 crime law that among other things escalated the war on drugs.

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GateHouse: SCOTUS to decide Double Jeopardy issue in shadow of pardon debate

Matthew T. Mangino

GateHouse Media

December 7, 2018

Gamble was 19-years-old in 2008 when he was convicted of robbery in Alabama. Robbery is a felony in Alabama and according to state law, and federal law, a felon is not permitted to possess a firearm.

Fast-forward seven years and Gamble is pulled over for a traffic violation. Police in Alabama find a handgun and charge him as a “felon-in-possession” at the same time federal prosecutors charge Gamble under a similar federal law.

Gamble pleaded guilty in state court in Alabama and was sentenced to one year in prison. Subsequently, a federal court sentenced him to 46 months in prison for the same crime. Gamble made a constitutional challenge to the federal charge arguing it violated the Double Jeopardy Clause.

The Fifth Amendment to the U.S. Constitution states that no person can “be subject for the same offense to be twice put in jeopardy of life or limb,” prohibiting multiple trials for the same offense.

Gamble’s claim was dismissed by a district court, and his conviction affirmed by the 11th U.S. Circuit Court of Appeals.

In its decision, the 11th Circuit found that the “Supreme Court has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns.”

The “separate sovereigns” doctrine allows both federal and state prosecutors to charge an individual under the theory that the state and federal governments are separate government entities and being charged separately with state and federal crimes is not Double Jeopardy.

Gamble took his case to the U.S. Supreme Court, which agreed to hear his case. Supreme Court justices do not hear every case that is brought to them. A petitioner must get at least four justices to vote to bring the case before the High Court.

The question is can he get five votes to overturn the so called separate sovereigns doctrine? Gamble’s attorneys got a chance on Thursday to make their case, in front of nine Supreme Court justices.

Gamble’s lawyers argued that “Permitting consecutive prosecutions for the same offense simply because different sovereigns initiate them ‘hardly serves’ the deeply rooted principles of finality and fairness the Clause was designed to protect.”

Attorneys for Gamble argued that the founder’s intentions for the Double Jeopardy Clause and the Supreme Court’s interpretation are incompatible. Essentially, the founding fathers did not intend to permit a person to be tried twice for the same offense in any court and the Supreme Court, through the years, failed to fully appreciate the founders’ intent.

Some justices made it clear that those decisions by prior courts are the very reasons not to overturn the separate sovereigns doctrine. Justice Elena Kagan raised the issue, noting that the separate sovereign’s doctrine is 170 years old and 30 justices over the years have supported it. She suggested that stare decisis, the adherence to prior rulings, is at bottom a doctrine of “humility;” we don’t want to overrule an earlier decision or rule “just because we think we can do it better.”

The case has garnered a lot of interest as a result of Special Counsel Robert Mueller’s investigation of Russian meddling in the 2016 presidential election. Although Mueller’s name was never mentioned during the argument the implication is that the Court’s decision could have an impact on how much protection a presidential pardon provides.

Although the president’s power to pardon is enormous under Article II, Section 2 of the U.S. Constitution, he can only provide a pardon for federal indictments or convictions.

For instance, the president could pardon Paul Manafort with regard to his federal conviction, but a state court, which would be out of the reach of a presidential pardon, could pursue the very same charges for which Manafort, or others, were already tried, convicted and pardoned in federal court.

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 and follow him on Twitter @MatthewTMangino.

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Tennessee sends second inmate to the electric chair in about a month

The 23rd Execution in 2018

A Tennessee inmate became the second person to die in the state's electric chair in just over a month on December 6, 2018, nearly two decades after Tennessee adopted lethal injection as its preferred method of execution, reported The Associated Press.

David Earl Miller, 61, was pronounced dead at 7:25 p.m. at a Nashville maximum-security prison.

Miller was convicted of killing 23-year-old Lee Standifer in 1981 in Knoxville and had been on death row for 36 years, the longest of any inmate in Tennessee.

At 7:12 p.m. and after Miller had been strapped into the chair, Tennessee Department of Correction officials raised a blind that had covered the windows to a witness room. Miller looked straight ahead, his eyes seemingly unfocused and his face expressionless.

Warden Tony Mays asked Miller if he had any last words. He spoke but his words were unintelligible. Mays asked him to repeat himself, and his words were still difficult to understand, but his attorney, Stephen Kissinger, said he understood them to be, "Beats being on death row."

Officers then placed a large damp sponge on Miller's shaved head to help conduct the current before strapping a cap to his head. Water ran down Miller's face and was toweled off by an officer. Miller looked down and did not look back up before officers placed a shroud over his face.

After someone connected an electrical cable to the chair, Miller's body stiffened as the first jolt of current hit him. His body then relaxed before a second jolt came less than a minute later. Again, Miller's body stiffened and then relaxed. The blinds were pulled down and an announcement of the time of death came over an intercom.

No witnesses from either Miller's family or Standifer's were present for the execution, but Department of Correction spokeswoman Neysa Taylor read a brief statement from a woman from Ohio who did not want her name given.

Taylor read, "After a long line of victims he has left, it is time to be done. It is time for him to pay for what he has done to Lee."

Miller had been on a date with Standifer, who had mental disabilities, and the two were seen together around town the evening of May 20, 1981. The young woman's body was found beaten and stabbed the next day in the yard of the home where Miller had been living.

Gov. Bill Haslam refused Miller's request to commute his sentence to life in prison. Miller's petition for clemency said Miller had been physically abused as a child by his stepfather and had been physically and sexually abused by his mother. The petition argued that evidence of the trauma and mental illness it caused should have been presented to a jury.

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