Thursday, November 26, 2015

Happy Thanksgiving!

Here's to sharing a happy and loving Thanksgiving with family and friends.

Wednesday, November 25, 2015

Adjusting minority IQ scores, affirmative action for the death penalty

Cornell University Law Professor Sherry F. Colb takes a skeptical look at adjusting IQ scores for purposes of execution.  Below are some excerpts from the article  posted at Verdict.
The Supreme Court in Atkins v. Virginia determined that executing an intellectually disabled person is unconstitutional, in part because of the disproportionality between the ultimate punishment and the necessarily diminished culpability of an intellectually disabled defendant. In the years following Atkins, the Court had occasion, in Hall v. Florida, to flesh out the meaning of intellectual disability and to clarify that it includes more than a simple IQ score. Nonetheless, IQ scores remain an important component of intellectual disability assessment, both clinically and for Atkins purposes.
An excellent article by Robert Sanger calls attention to a particular sort of challenge to IQ scores that has developed in the Atkins context. This challenge or critique provides that African Americans, Latinos, and Latinas are disserved by IQ tests, as life experiences of deprivation, for instance, produce artificially low scores on such tests, relative to the test-takers’ true ability. In some contexts, this critique could help minorities applying for jobs and educational opportunities. Here, however, the proposal is to give minority defendants a “bump up” on their IQ scores so that they qualify to be executed.
The first thing wrong with racially adjusting minority IQ scores upward for execution purposes is that it constitutes blatant and invidious race discrimination against minority individuals. It basically says that a person with an IQ test score of X will live if he is white but (potentially) die if he is black. And this result is not simply a matter of observed disparate impact but of intentional practice in the courtroom.
To read more CLICK HERE

Tuesday, November 24, 2015

Chicago braces for release of deadly police shooting video

For months, leaders in Chicago watched as other cities faced angry demonstrations over police conduct, shootings and relations with black people, often captured in painful videos. As cities like Ferguson, Mo., Baltimore and New York have been consumed by fatal encounters involving the local police that have fueled national attention since 2014, this city managed to keep a lower profile, reported the New York Times.
But Chicago now finds itself grappling with the prospect of having its own moment. The city has been ordered to release, within days, a police video of the fatal shooting of a black 17-year-old by a white police officer. Even the officer’s lawyer has described the video, which the city sought for months to block from public view, as “graphic” and “violent” and “difficult to watch at some points.”
With the memories of discord in other cities so fresh, leaders in Chicago, which has a history of tension over race and policing, have been holding urgent private talks with community activists. Law enforcement officials are trying to anticipate what response the video may bring, and how best to prepare police forces here for that. And the mayor, Rahm Emanuel, appeared to try to calm the city, taking the unusual steps of condemning the police officer and urging prosecutors to take action in the case before the release of the video.
“In accordance with the judge’s ruling, the city will release the video by Nov. 25, which we hope will provide prosecutors time to expeditiously bring their investigation to a conclusion so Chicago can begin to heal,” Mr. Emanuel said Thursday.
Around Chicago, the video has become a topic of discussion, even though most people have not seen it. According to a few people who have viewed it, the video shows Laquan McDonald being struck by 16 bullets, some of them hitting him even after his body had fallen to the ground along a street on this city’s southwest side in October 2014. Some of the bullets, an autopsy shows, entered the back of his body.
A lawyer for Mr. McDonald’s family said the video showed him moving away from Officer Jason Van Dyke, the policeman who fired all of the shots, while at least five other officers never fired their weapons.
Dan Herbert, a lawyer for Officer Van Dyke, said his client believed the shooting was justified because he feared for the safety of himself and his colleagues. Mr. McDonald had a knife, the authorities say, and earlier punctured a squad car’s tire with it and refused to drop it. The officers were approaching him, officials said, after the police got a report that a man with a knife was trying to break into vehicles in a trucking yard.
To read more CLICK HERE

Monday, November 23, 2015

Pro-death penalty movement gaining traction

The emergence of Californians for Death Penalty Savings and Reform is the most visible sign of a growing nationwide response to the success of efforts to abolish the death penalty, reported the Marshall Project. For decades, executions were carried out steadily, and supporters, always a majority, were a silent one. But since 2007, seven states have repealed the death penalty and in many others the pace of executions has slowed as prison agencies struggle to find lethal injection drugs and prosecutors decline to pursue death sentences. A group of defense attorneys want to bring a constitutional challenge to the Supreme Court, and even Republican presidential candidate Jeb Bush has voiced ambivalence.
Like many of these movements, the California initiative grew organically in response to efforts to abolish the death penalty. The victims’ advocates and prosecutors now leading the charge began working together in 2012 when opponents of the death penalty brought Proposition 34 — a straightforward abolition proposal — to voters. Those opponents included men and women with tough-on-crime credibility, from Jeanne Woodford, the former warden of San Quentin prison, to Ron Briggs and Don Heller, both political figures who championed an expansion of capital punishment in the 1970s.
To read more CLICK HERE

Sunday, November 22, 2015

Watch my interview on WFMJ-TV Weekend Today

Watch my interview on WFMJ-TV Weekend Today.  We spoke about the Jacob Larosa case in Niles, Ohio and the Attorney General Kathleen Kane odyssey in Pennsylvania. To watch CLICK HERE

Judge Kozinski on fringerprint analysis

Ninth Circuit Court of Appeals Judge Alex Kozinski — has recently published an article in the Georgetown Law Journal providing 12 reasons we should worry about the criminal justice system. His former law clerk and blogger Eugene Volokh has serialized the article for the Washington Post.  Periodically, this is the second in a series of Judge Kozinski's concerns with the criminal justice system, through the analysis of Mr. Volokh.

I have shared similar concerns through this blog.  I will provide links to my commentary as well.
Fingerprint evidence is foolproof. Not so. Identifying prints that are taken by police using fingerprinting equipment and proper technique may be a relatively simple process, but latent prints left in the field are often smudged and incomplete, and the identification process becomes more art than science. When tested by rigorous scientific methods, fingerprint examiners turn out to have a significant error rate. [Footnote: “[F]orensic fingerprint identification almost never deals in whole fingerprints. Rather, technicians use ‘latent’ fingerprints — invisible impressions that they ‘develop’ using a powder or a chemical developing agent. Latent prints are usually fragmentary, blurred, overlapping, and otherwise distorted. The challenge is to match the latent print to a pristine inked (or, these days, optically scanned) print taken under ideal conditions at the police station.” [Citations omitted.] In United States v. Llera Piaza, 188 F. Supp. 2d 549, 564 (E.D. Pa. 2002), for example, Judge Louis Pollack rejected fingerprint identification expert testimony after concluding that the field of fingerprint identification has failed to systematically test its underlying assumptions and claims of expertise.]

Perhaps the best-known example of such an error occurred in 2004 when the FBI announced that a latent print found on a plastic bag near a Madrid terrorist bombing was “a 100 percent match” to Oregon attorney Brandon Mayfield. The FBI eventually conceded error when Spanish investigators linked the print to someone else.

Here is a link to my take on fingerprint analysis in a blog at the Pittsburgh Post-Gazzette

Saturday, November 21, 2015

GateHouse: Is the end near for capital punishment?

Matthew T. Mangino
GateHouse Media
November 20, 2015
A dissent written more than a half-century ago in Rudolph v. Alabama may have been a precursor to striking down the death penalty.
Supreme Court Justice Arthur Goldberg raised questions about the constitutionality of the death penalty in 1963. Goldberg wrote that “in light of the trend both in this country and throughout the world against punishing rape by death, does the imposition of the death penalty by those States which retain it for rape violate evolving standards of decency that mark the progress of a maturing society.”
Goldberg’s dissent is credited with being the first step in bringing about the 1972 decision in Furman v. Georgia that ruled the death penalty, as it was imposed at the time, was unconstitutional. It wasn’t long after Furman, that death penalty states rewrote their laws to pass constitutional muster.
This summer, Justice Stephen G. Breyer wrote a dissent in a case out of Oklahoma challenging lethal injection. He expressed his disagreement with the Court’s decision and then, according to the Washington Post, asked a more general question: Is the death penalty itself unconstitutional?
“I believe it highly likely that the death penalty violates the Eighth Amendment,” Breyer wrote. “At the very least, the Court should call for full briefing on the basic question.”
Breyer was joined in his dissent by Justice Ruth Bader Ginsburg. He wrote that the country’s use of the death penalty has dramatically changed since the court reinstated capital punishment in 1976.
The current state of the death penalty indicates that Breyer might be on the right track. This week marked the last two executions for 2015. On Thursday, Marcus Ray Johnson was executed for the 1994 murder of a woman in Georgia.
With no additional executions scheduled nationwide, 2015 will end with 27 executions--the fewest since 1991.
The death penalty has been under siege for several years. A number of states—Connecticut, Illinois, Maryland, New Jersey, New Mexico, New York, and Nebraska—have recently abandoned capital punishment. The governors of four other states—Colorado, Oregon, Pennsylvania, and Washington—have imposed execution moratoriums.
Although Justices Breyer may get some credit for getting the ball rolling if the death penalty is abolished, it won’t happen without Justice Anthony Kennedy. He would undoubtedly be the fifth vote to strike down the death penalty.
According to Slate, Kennedy has a strong belief in the idea that constitutional norms change as the times change--each generation is charged with deciding for itself how to define basic constitutional freedoms. Kennedy’s beliefs have contributed to the idea that he is ready sign-on to a decision abolishing the death penalty.
Kennedy voted with the Court’s majority in banning the execution of the intellectually disabled and those who kill while under the age of 18.
In 2008, Kennedy wrote the majority opinion keeping Louisiana from imposing the death penalty for the rape of a child where the crime did not result in the victim’s death.
Kennedy wrote, “There is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape.” Kennedy concluded that in cases of crimes against individuals, “the death penalty should not be expanded to instances where the victim’s life was not taken.”
Kennedy tends to be a bit cautious. He seems to prefer to nibble around the edges of the death penalty as opposed to putting it on the chopping block. If the matter came before the high court anytime soon, chances are that Kennedy would not be prepared to kill-off the death penalty.

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 and follow him on Twitter @MatthewTMangino.

Visit the column CLICK HERE