Thursday, January 16, 2020

Texas carries out 1st execution of 2020, seven more scheduled through May

The 1st Execution of 2020
Texas, the state that has put to death more people than any other by far, carried out the nation’s first execution of the decade Wednesday.
John Gardner was executed for the 2005 Collin County murder of his soon-to-be ex-wife. Tammy Gardner was shot and killed in her home weeks before the couple’s divorce was finalized, according to court records. She called 911 before she died to say her husband had shot her, according to the Texas Tribune.
With no pending appeals, John Gardner was taken into Texas’ death chamber in Huntsville and injected with a lethal dose of pentobarbital at 6:20 p.m. He was pronounced dead 16 minutes later.
Five of his friends and a spiritual adviser were expected to watch through a glass pane in a small room, according to a prison witness list. Tammy Gardner's mother, daughter and son planned to stand in an identical room next door. In his final words, he told his friends he loved them after apologizing to the victim's family.
"I would like to say sorry for the grief I have caused. I hope you find peace, joy and closure. Whatever it takes to forgive me. I am sorry. I know you cannot forgive, me but I hope one day you will," the 64-year-old man said.
John Gardner had a history of domestic violence, including the shooting of a previous wife who later died from her injuries, court records state.
He had argued for years that his crime should not have been prosecuted as a capital murder, which is the only crime in Texas that can result in the death penalty. A capital murder conviction in his case required the jury to decide that the killing was committed during another felony crime — home burglary or retaliation for his wife being a witness in their upcoming divorce proceeding.
Instead, his appellate attorneys said, John Gardner’s trial lawyers should have raised an “abandonment rage” defense. They argued that he didn’t break into his wife’s house and that he shot her to prevent her from leaving him, not because she was going to testify against him in court. Texas and federal courts rejected the argument.
The Gardners had been married for more than five years, and court records indicate it was an abusive relationship. Tammy Gardner’s friends and relatives testified at trial that her husband had put a gun to her head before and that she showed up to places with bruises on her face. After she filed for divorce, they said that she was terrified for her life and that John Gardner was harassing her, asking if she was going to go through with it.
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The day of the murder, her daughter said John Gardner was repeatedly texting his wife about the divorce and asked, “YES OR NO?”
At trial, while jurors weighed whether to sentence John Gardner to death or life in prison without the option for parole, his sister testified that they had grown up with abusive parents. Their father, a Baptist preacher, would interrupt church services to loudly beat his son with a belt in the hall, she said. John Gardner's appellate attorneys later said trial lawyers didn't properly search for other evidence that could have turned the jury toward life.
The slaying wasn’t John Gardner’s first domestic violence conviction. Three of his previous four wives had also reportedly been abused by him, according to a federal court ruling. In 1983, he was convicted of aggravated assault in the shooting of his wife at the time, Rhoda Gardner, who was pregnant and later died from her injuries. He served two years of an eight-year sentence in Mississippi. After two years on parole, he was again imprisoned after being accused of assaulting his new wife’s daughter, who required hospitalization, and kidnapping his wife at knifepoint.
At the Tammy Gardner murder trial, prosecutors also presented evidence that John Gardner sexually assaulted his wives’ young daughters.
His appellate lawyers argued most recently to the U.S. Supreme Court about the abandonment rage defense. They said lower courts had wrongly rejected such claims.
“[John Gardner’s] violent domestic history further supports the fact that he abused or killed his former spouses and their children ‘to manage his relationships,’ and not because of their status as a prospective witnesses who would testify against him,” his attorney, Lydia Brandt, wrote in a petition. “The killing of Tammy Gardner was an estrangement killing — which is not a capital murder offense.”
If he had been convicted of murder, not capital murder, the harshest punishment he would have received is life in prison. The Texas Attorney General’s Office argued to the high court that John Gardner killed his wife because of the upcoming divorce, where she was a prospective witness, and not earlier at the time of the breakup.
John Gardner’s appellate attorneys also said the lack of evidence of a forced entry showed that he wasn’t committing a burglary, the other felony that could trigger the capital murder offense. The state argued Tammy Gardner’s 911 call and her fear for her life indicated she would not willingly let him into her home.
“In fact, uncontrollable rage triggered by abandonment makes it more likely Gardner entered Tammy’s home without her effective consent and for the purpose of harming her,” wrote Texas Assistant Attorney General Matthew Ottoway.
Texas has seven more executions scheduled through May.
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Wednesday, January 15, 2020

Pelosi designates 7 House managers to prosecute Trump impeachment trial

House Speaker Nancy Pelosi  announced the seven House Democrats managers who will act as the "prosecutors" in the Senate impeachment trial of President Donald Trump, reported NBC News.
The managers are: Reps. Adam Schiff of California, who will be the lead manager; Jerry Nadler of New York' Hakeem Jeffries of New York; Jason Crow of Colorado; Zoe Lofgren of California; Val Demings of Florida; and Sylvia Garcia of Texas.
The managers have varied biographies: Schiff was a federal prosecutor; Demings was a police chief; several are attorneys, and Lofgren was a staffer on the House Judiciary Committee during the Nixon impeachment and a House member during the Clinton impeachment.
"This is about the Constitution of the United States and it's important for the president to know and Putin to know that American voters — voters in America — should decide who our president is," Pelosi said at a press conference with the managers.
She said the House would vote today to approve the managers and transmit the two articles of impeachment to the Senate. The trial is set to begin on Tuesday; it's not yet clear if witnesses will be called.
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Trump's defense team for Senate impeachment trial is taking shape

President Trump's defense team for his Senate impeachment trial is taking shape, reports NPR.
Here are some of the lawyers expected to be in the room when the Senate trial begins:

Pat Cipollone
Cipollone will lead the team. He played a key role in the House impeachment inquiry, writing aggressive letters to House investigators to deny congressional subpoenas. He mainly stayed out of public view, but he will now take a more prominent role. 
"I know that he's held in high esteem by the president," said Ty Cobb, a former White House lawyer.
Trump picked Cipollone, who served as an outside adviser during the Mueller probe, to replace Don McGahn as White House counsel in October 2018.

Jay Sekulow
Sekulow is a personal attorney to Trump. He was a key player in the president's defense during former special counsel Robert Mueller's two-year investigation into Russian interference in the 2016 election.
"He's probably the best constitutional lawyer who will be participating," said Cobb, who worked closely with Sekulow on the White House response to the Russia investigation. 
Sekulow, the chief counsel for the firm American Center for Law and Justice, has also represented Trump on other matters, including the fight over the president's tax returns. He is known for his advocacy on religious liberty issues.
"As the president's private counsel, since I've been involved in all of these inquiries since the beginning, we thought it was then appropriate," said Sekulow of joining the impeachment defense. 

Pat Philbin
Pat Philbin is a deputy to Cipollone. A graduate of Harvard Law School and former partner at Kirkland and Ellis, Philbin clerked for Supreme Court Justice Clarence Thomas. Philbin later served in senior positions in the George W. Bush Justice Department.
As deputy assistant attorney general, Philbin drafted opinions on behalf of the Bush administration in 2001, arguing that President George W. Bush had the authority under the Constitution to establish military commissions at Guantanamo Bay to try to punish people tied to the Sept. 11 attacks.

Mike Purpura
Mike Purpura is another deputy to Cipollone. The former federal prosecutor and Justice Department official joined the White House at the same time as Cipollone.
A former associate counsel in the George W. Bush White House, Purpura negotiated with witnesses who testified in the House impeachment inquiry. For example, he met with Fiona Hill, Trump's former top adviser on Russia and Europe, to discuss her plans to comply with a congressional subpoena. Purpura later wrote a letter to Hill and her attorney outlining the White House's expectations of how she would protect executive privilege.

Alan Dershowitz 
A professor emeritus at Harvard Law School who wrote a book called The Case Against Impeaching Trump, last week told NPR's Here and Now that President Trump had considered adding him to the team. "The reports are true, but I can't comment about whether or not I've agreed to join his legal team. But there's been some discussion of that," Dershowitz said.

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Tuesday, January 14, 2020

SCOTUS has the power to review impeachment trials

Cleveland Attorney James Robenalt wrote in the Washington Post:
If Senate Majority Leader Mitch McConnell follows through on his desire to hold an abbreviated impeachment trial without witnesses — as many in his party would prefer — he will be testing the limits of the impeachment trial clause of the Constitution. Minority Leader Charles E. Schumer has declared that a trial without witnesses (or perhaps even any documents) would amount to “a coverup.” Worries about a rubber-stamp trial are one reason House Speaker Nancy Pelosi has delayed submitting the articles of impeachment.
If such a sham trial comes to pass, is there any remedy? In fact, there is a stronger case than many think that the Supreme Court has the power to review impeachment trials, to ensure that Senate procedures meet a basic level of fairness.
The only Supreme Court decision addressing the Senate impeachment trial clause is Nixon v. United States (1993) — which has nothing to do with Richard Nixon. When Walter L. Nixon, a federal judge in Mississippi, was impeached in 1989 and removed from office, he sued the United States, the secretary of state and the Administrative Office of the U.S. Courts, arguing that the Senate had not conducted a proper “trial” as required by the Constitution.
The court, with Chief Justice William Rehnquist writing for the majority, ruled against him. It concluded that how the Senate conducted impeachment trials was essentially a political question, because the Constitution gives that body the “sole power” to try impeached officials. That meant the dispute was, in the legal jargon, “nonjusticiable.” But other justices — namely Byron White, Harry Blackmun and David Souter — argued that, while Nixon deserved to lose, it was possible that one day the Senate would conduct such an unfair impeachment trial that the courts would be obliged to hear a case if an aggrieved party sought a judicial remedy. That’s precisely the situation we may face today.
In the events that led to his impeachment, Nixon was convicted of crimes (two counts of making false statements to a grand jury, related to an attempt to interfere in the investigation of a friend’s son) and sentenced to prison. But he refused to resign and continued to collect his judicial salary behind bars. The House therefore impeached Nixon and sent articles to the Senate to conduct a trial.
Under rules established by the Senate to handle impeachments, Nixon’s case was referred to a committee of senators to “receive evidence and take testimony.” After four days of hearings and 10 witnesses, the committee presented the full Senate with a transcript of its proceedings and a report. The House managers and Nixon submitted briefs to the full Senate; after oral arguments from the Senate floor, a personal appeal from Nixon and questions from several senators, the full Senate voted to remove him from office. He appealed, claiming that the Senate had not really “tried” him: Delegating so much work to a small committee was a shirking of its duty, he argued, and not what the founders had intended.
The Supreme Court’s vote against Nixon was 9 to 0. But White and Souter filed concurring opinions (Blackmun joined White’s) that contemporary courts might draw on, should the Senate vote, after a trial that’s clearly perfunctory, to keep Trump in office.
As the court noted in Nixon, the Constitution lays out several indispensable elements of an impeachment trial: The Senate “shall be on Oath or Affirmation”; if it’s the president who’s on trial, “the Chief Justice shall preside”; and conviction requires a two-thirds majority of the members present. Beyond this, the terms of how the Senate tries an impeachment are left to its discretion.
But there are surely limits, White, Blackmun and Souter argued. What if the trial were manifestly bogus? The issue had come up in the oral argument for the case. White asked the solicitor general (Kenneth Starr, as it happens) if, after the House sent over articles of impeachment, the Senate could, “without any procedure whatsoever,” unanimously find the accused guilty on the grounds that he was “a bad guy.” The government replied that, yes, the Senate indeed had that latitude.
That answer troubled several justices. While conceding that it was “extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges,” White wrote, the scenario was hardly unimaginable — and would provide grounds for judicial review. “Were the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House it is quite clear that the Senate will have failed to ‘try’ impeachments,” White wrote
If the Senate were to convict “upon a coin-toss,” Justice Souter added, “or upon a summary determination that an officer of the United States was simply ‘a bad guy,’ judicial interference might well be appropriate.”
“In such circumstances,” he wrote, “the Senate’s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence.”
McConnell has said he does not intend to be impartial — and in fact will work, lockstep, with the White House during the trial. That would violate his oath to “do impartial justice according to the Constitution and laws.” If he dispenses with witnesses and speedily steers the outcome to the one desired by the White House, that would reduce the Senate proceeding to the kind of “summary determination” that the three justices warned about. Collectively, such actions could be seen by reasonable judges as “seriously threatening the integrity of the results” — the standard Souter suggested should trigger judicial review.
Since the Constitution grants the chief justice the privilege of presiding over the trial, he ought to have — and in my view does have, under proper constitutional interpretation — considerable power to steer the Senate toward reasonable standards for weighing evidence and rendering judgments. He cannot and should not be a potted plant. The current Senate rules, however, reduce the chief justice’s role to one of subservience and ceremony; even his rulings on admissibility of evidence can be overridden by the Senate. That cannot possibly be what the founders intended.
Yes, the founders provided that the House would have “sole power” over impeachments and the Senate “sole power” over trials of impeachment. But the Constitution also grants “all legislative powers” to the House and Senate, and still the Supreme Court exercises routine judicial review over laws. If McConnell and his Republican colleagues insist on setting rules that turn the trial into a farce, then the matter would be ripe for judicial review, as outlined by the various justices in Nixon v. United States. The House — through the speaker or the impeachment managers — could take the matter to court.
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Monday, January 13, 2020

WashPo: The Senate has conducted 15 impeachment trials. It heard witnesses in every one

President Trump’s allies in the Senate want to move forward to an impeachment trial without a commitment to calling witnesses, reports the Washington Post. They insinuate that precedent is on their side, but they’re wrong.
The Senate has heard testimony from witnesses at every trial it has completed in its 231-year history. If the current Senate takes seriously its constitutional responsibility to conduct an impeachment trial of Trump and the oath its members will take to “do impartial justice,” then it must not depart from this unambiguous body of precedent. It must hear from witnesses to the president’s misconduct.
Only 19 other individuals besides Trump have been impeached by the House of Representatives. The Senate completed a trial in 15 of those cases, and in every single one of them, it heard testimony from witnesses. Those cases include the only two prior instances in which a president was impeached. At the impeachment trial of Bill Clinton, the Senate permitted House managers to obtain trial depositions of three witnesses — Monica Lewinsky, Clinton confidant Vernon Jordan and White House aide Sidney Blumenthal — and the full Senate viewed video excerpts of those depositions. At 
The Senate has obtained testimony from a large number of witnesses in every impeachment trial conducted in the last 50 years: 21 in the 1986 trial of Judge Harry Claiborne; 55 in the 1989 trial of Judge Alcee L. Hastings; 10 in the 1989 trial of Judge Walter Nixon, and 26 in the 2010 trial of Judge Thomas Porteous. Although at least one senator has suggested that the Senate has no duty to go beyond testimony obtained by the House, that has happened on multiple occasions. The Senate heard from seven witnesses at Walter Nixon’s trial who had not testified before the House; three at Clinton’s trial who also had not testified before the House; and 17 at Porteous’s trial who had not testified before the House.
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Sunday, January 12, 2020

PA Supreme Court to study “alleged systemic failures” with Philadelphia’s cash bail system

In an unusual move, the Pennsylvania Supreme Court says it plans to study “alleged systemic failures” in Philadelphia’s cash bail system, reported the Pennsylvania Capital-Star.
In an order issued Monday, the high court says it’s open to suggestions to improving the existing cash bail system, but “any attempt to advocate for the abolition of cash bail,” is not on the table.
In its order, the court agreed to take on the inquiry as part of its “King’s Bench” powers, which gives it supervisory powers over the rest of the statewide judiciary. Typically, the court only wields this authority in matters of “great public importance. Judge John M. Cleland, a senior judge from McKean County, has been named the special master who will oversee the investigation, court documents indicated.
In March, attorneys for the Pennsylvania branch of the American Civil Liberties Union and the Washington D.C.-based law firm Arnold & Porter Kaye Scholer filed a lawsuit on behalf of 10 incarcerated people, as well as a community advocacy group, arguing that “bail magistrates in Philadelphia’s First Judicial District have failed to consider alternatives to cash bail and have assigned cash bail to people who are too poor to afford it.”
In a statement, ACLU Executive Director Reggie Shuford, said his organization is “grateful that the court understands that this situation needs more investigation.
“People who have not been convicted of a crime are sitting in Philadelphia jails only because they are too poor to pay the bail they’ve been assigned. The Philadelphia courts have effectively criminalized poverty,” he said.
In its legal filing, the ACLU claims that Philadelphia courts are violating procedural rules with their bail practices. The high court’s Monday order gives the ACLU and the Philadelphia court officials named as defendants in the case 90 days to submit their evidence. From there, Cleland has 60 days to submit his recommendations to the high court.
“There are people sitting in Philadelphia’s jails right now who have not been proven guilty of a crime,” Nyssa Taylor, criminal justice policy counsel for the ACLU of Pennsylvania, said in a statement. “Bail hearings in Philadelphia typically last less than three minutes, which is wholly insufficient to inquire into someone’s ability to pay, and the person whose liberty is on the line is not even in the room, as they watch the proceedings by video. The bail system in Philadelphia must change.”
Some legal reform groups, including the Brennan Center for Justice at New York University, have called for the elimination of cash bail, arguing that the decision regarding “whether a defendant should be jailed while awaiting trial is often based on a defendant’s wealth and not on public safety considerations.”
The center’s research has further found that “80 percent of the accused are too poor to afford an attorney, more than 60 percent are people of color, and the bulk of the cases are low-level, non-violent offenses. Most of this population cannot afford bail and are incarcerated before trial for long periods even though they have not been found responsible for any crime.”
“[Sixty] percent of the jail population is not convicted but being held pretrial,” Brennan researchers pointed out in a 2012 report, adding that this “issue is a huge contributor to the mass incarceration of people in the United States, resulting in overcrowded facilities and unsustainable budgets … those too poor to pay a money bail remain in jail regardless of their risk level or presumed innocence … U.S. Attorney General Eric Holder in 2011 stated that keeping people awaiting court dates in county jails costs around $9 billion each year.”
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Saturday, January 11, 2020

GateHouse: Weinstein lawyers try to remove judge for admonishing client

Matthew T. Mangino
GateHouse Media
January 10, 2020
This past week, each morning a feeble looking Harvey Weinstein hobbled into the State Supreme Court building in Manhattan, New York for the start of his much anticipated sexual assault trial.
Celebrity trial aficionados know the routine - aging defendant, in rumpled suit, arm-in-arm with counsel, looking lost and bewildered. Remember the inexplicably “blind” comedian convicted of sexual assault?
Weinstein stands accused in criminal court of the alleged sexual assault of two women. He has been accused of assaulting as many as 70 other women who, by law, cannot pursue criminal charges due to the passage of time.
Harvey Weinstein appears as though he can’t walk without the aid of a walker, which, by the way, has its metal legs inserted into yellow tennis balls.
Monica Hesse, a Washington Post style-columnist, asked “Can you for one second imagine him (Weinstein) showing up with neon tennis balls?” referring to the Golden Globe Awards ceremony, ironically held the night before his trial began.
The trial is merely at the jury selection stage and already the sparks are flying.
The nearly immobile Weinstein apparently still has good dexterity in his hands. On the second day of jury selection, Judge James Burke admonished Weinstein for using his phone in the courtroom - actually two phones. Judge Burke told Weinstein, “Is this really the way you want to end up in jail for the rest of your life, by texting and violating a court order?”
Weinstein had been noncompliant with court’s order not to use cellphones in the courtroom and with court personnel who asked him to put away his phones on at least three occasions.
Social media was abuzz, was this judge biased against Weinstein? Did the judge want to put this feeble 78-year-old man in prison for life for using a cellphone?
Attorneys for Weinstein showed up the next day in court with a request for Judge Burke to hand the case over to another judge. According to the USA Today, the request for recusal alleged that Burke’s scolding reflects “animus” toward the defendant, and has “created a situation in which the Court’s ‘impartiality might reasonably be questioned,’ in violation of New York State’s Rules of Judicial Conduct.”
In New York, the sole statutory authority for judicial recusal is Section 14 of the Judiciary Law. Section 14 provides that a judge who has a financial interest in a case or is a relative of one the parities must recuse herself from presiding over the case - scolding a defendant for violating court rules is not on the list.
The courts in New York have ruled, “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court.”
Judge Burke refused to step aside.
There is a long standing doctrine in the law known as the “duty to sit.” The duty to sit encourages judges to hear and decide cases unless there is a compelling reason for recusal.
The duty to sit also discourages litigants from forum shopping - defense attorneys using recusal to find a more favorable judge. The doctrine also makes it difficult for judges to simply recuse themselves from controversial cases. Jeffrey T. Fiut, writing in the University of Buffalo Law Review, explained ”(T)he judge has a responsibility to hear and decide cases, one that should not be shirked for political or personal reasons.”
“There’s nothing prejudicial or inflammatory (about) scolding a defendant,” said Judge Burke. “If using strong or even hyperbolic language succeeds after stern admonishments have failed, then the court has accomplished its goals.”
Weinstein’s feeling are hurt - someone told him “no.” There will be many more distractions as this case moves forward, but the ultimate goal will not change - justice for the accused and justice for the victims.
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 at @MatthewTMangino.
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