Ohio governor halts lethal injection citing cruel and unusual punishment

Ohio Gov. Mike DeWine said that he is halting executions until the state devises a new lethal injection protocol that overcomes any court challenges, reported the Dayton Daily News.

He did not issue a formal stay of all executions but said “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.”

He directed prison officials to come up with a new protocol, which will likely face legal challenge in federal court, he said. 

 “We certainly could have no executions during that period of time. I don’t want to predict dates, but we have to have the protocol, then it will be challenged, then we have a judge make a decision. So we have to through all that process before we could certainly move down the path toward an execution,” he said.

The next scheduled execution is May 29. DeWine spokesman Dan Tierney said the governor will decide whether to go ahead or delay that execution based on the facts at the time, including whether the federal judge’s ruling has been overturned.

When asked if he now has personal reservations about capital punishment, DeWine said, “It is the law of the state of Ohio. I’m going to let it go at that at this point. We are seeing, clearly, some challenges that you all have reported in regard to carrying out the death penalty. I’m not going to go down that path any more today.”

DeWine voted for the capital punishment law as a state senator nearly 40 years ago, long before DNA analysis of crime scene evidence led to exonerations from death rows across the country.

When asked if those exonerations have changed his view of the capital punishment, DeWine responded, “I think there is a lot of things we know today that we have the benefit of seeing how it has played out since 1981. We know more today.”

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Once again the U.S. Supreme Court reverses death sentence for Texas inmate

For the second time, the U.S. Supreme Court has struck down the Texas Court of Criminal Appeals' way of determining if a death row inmate is intellectually disabled and therefore ineligible for execution, reported the Texas Tribune.

The high court made that determination in the case of Bobby Moore, whom the court decided is intellectually disabled.

Moore's case highlights the complexities surrounding intellectual disability and the death penalty. The Supreme Court has ruled that those with intellectual disabilities can’t be executed, and after reviewing Moore’s case in 2016, it tossed out the way the Texas court determines the disability in 2017. The Texas court previously relied on decades-old medical standards and a controversial set of factors created by judges to make the determination, including how well the inmate could lie.

After that ruling, the prosecutor sided with Moore and said that he is intellectually disabled, but the Texas Court of Criminal Appeals still disagreed, claiming last Junethat he was eligible for execution under current medical standards as well. Now, the high court has stepped in again, and this time, the majority of justices made clear that Moore has shown he is disabled and therefore ineligible for execution. The court's opinion knocked the Texas court for relying on the same methods it had ruled against in the 2017 opinion, like focusing on Moore's strengths instead of his weaknesses, especially strengths gained in a controlled prison environment.

The justices also said that despite the Texas court saying it had eliminated its controversial set of factors, which the high court said were problematic for advancing stereotypes, "it seems to have used many of those factors in reaching its conclusion."

"To be sure, the court of appeals opinion is not identical to the opinion we considered in Moore," the justices wrote. "There are sentences here and there suggesting other modes of analysis consistent with what we said. But there are also sentences here and there suggesting reliance upon what we earlier called 'lay stereotypes of the intellectually disabled.'"

Moore, 59, was sentenced to death more than 38 years ago after he fatally shot a 73-year-old clerk during a Houston robbery in 1980. In 2014, a Texas court determined under current medical standards that Moore was intellectually disabled — with evidence including low IQ scores and his inability to tell time or days of the week as a teenager.

But the Texas Court of Criminal Appeals overruled that decision, saying the lower court failed to use its test in making the determination. The Supreme Court invalidated that method upon review.

"By rejecting the habeas court’s application of medical guidance and clinging to the standard it laid out ... the CCA failed adequately to inform itself of the 'medical community’s diagnostic framework,'" Justice Ruth Bader Ginsburg wrote in the 5-3 opinion in 2017.

In an unusual step, the prosecutor — Harris County District Attorney Kim Ogg, a Democrat — filed a brief to the Texas court after that ruling stating that she agreed with Moore that he was intellectually disabled and should not be executed. In a surprise June opinion, the Texas Court of Criminal Appeals agreed to use current medical standards as a method to determine if a death row inmate had an intellectual disability but said that Moore still did not qualify.

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Wyoming lawmaker invokes Jesus in support of the death penalty

The Wyoming Senate recently defeated a bill that would have repealed the state’s death penalty, ending the most successful legislative attempt to do away with capital punishment in recent memory, reported the Casper Star Tribune.

Having passed the House by a safe margin, the bill was swiftly voted down by the Wyoming Senate on its first reading. The final vote was 12-18.

“The vote was different than I expected to see from talking with people beforehand,” said the bill’s sponsor in the Senate, Brian Boner, R-Converse. “There’s a lot of different factors and, at the end of the day, everyone has to make their best determination based on the information they have.”

Sen. Lynn Hutchings, R-Cheyenne, argued that without the death penalty, Jesus Christ would not have been able to die to absolve the sins of mankind, and therefore capital punishment should be maintained.

“The greatest man who ever lived died via the death penalty for you and me,” she said. “I’m grateful to him for our future hope because of this. Governments were instituted to execute justice. If it wasn’t for Jesus dying via the death penalty, we would all have no hope.”

Wyoming has not executed a prisoner since 1992. According to Wyoming Department of Corrections Director Bob Lampert, the average death row inmate costs the agency 30 percent more to incarcerate than a general population prisoner, with an average stay of 17 years.

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Book Review: Butterfly in the Rain, The Abduction and Murder of Marion Parker

Author: James L. Neibaur

Rowman & Littefield (2016)

Reviewed by Matthew T. Mangino for

The Champion            

             James L. Neibaur has written prolifically about the motion picture industry and Hollywood.  His first foray into true crime is worthy of the silver screen.  Neibaur’s Butterfly in the Rain, published by Rowman & Littlefield, tells the story of William Edward Hickman, a vain and diabolical egotist who kidnapped and savagely murdered Marion Parker, the 12- year-old daughter of a banking executive.

            Hickman, who was 19 years old, had delusions of grandeur.

            In 1927, he entered an elementary school in Los Angeles, California and asked to take Parker out of school, claiming that her father had been in an accident. Despite seemingly obvious inconsistencies in his story, a member of the school staff—enamored by the suave and well-spoken Hickman—released the child into his custody.

            That night, Marion’s father, Perry Parker, received a telegram from Hickman demanding a meager ransom, even by early twentieth century standards. The payoff ended in a graphic and heart-wrenching exchange between Hickman and Perry Parker.

            Hickman was quickly arrested. His detailed justification for the murder of Parker is chilling—if not evidence of a mental defect.  He said he killed Marion to (1) evade detection; (2) avoid disappointing Marion; and (3) an uncontrollable desire to commit a great crime.

            Neibaur’s narrative is based almost exclusively on newspaper accounts of the murder and investigation. There was no shortage of news account because the sensational nature of the crime and the closely followed trial generated national attention. Neibaur also had access to trial transcripts which he quotes from at length.  The transcripts reveal arguments and testimony that would undoubtedly merit intense scrutiny by modern appellate courts.

            The book is easy to read, and the pace is quick.  Neibaur’s prose can capture a reader’s attention.  There is some repetition which is either to add length to the book or an ill-conceived effort to build on the sensational subject matter.

            Parker’s murder came on the heels of the famed Leopold and Loeb trial and shortly before the infamous Lindbergh kidnapping, lending to the fact that, although riveting, the Parker murder had been lost to history.

            Through the work of Neibaur this tragic story has been introduced to a new generation of true crime readers. The book comes at a time when “stranger danger” has driven lawmakers to enact draconian laws that keeps those who prey on children locked-up for years and in some instances indefinitely.

            Hickman’s attorneys would raise an insanity defense on behalf of their client. Neibaur wrote at one point “It was considered by some that his ploy was to appear like an insane person trying to seem that he was sane.”  Neibaur conceded that the scheme was “a bit convoluted.”

            It would have been interesting to learn more about Hickman’s defense and how it played out in court. The early use of the insanity defense would have provided a unique glimpse into the California legal system in the early twentieth century—unfortunately, that sort of detail was not provided.

            Neibaur had a noticeable bias against Hickman.  Certainly Hickman was not a likeable figure, but Neibaur crossed the line from storyteller to anti-Hickman zealot as the book progressed from murder, to arrest, to trial. Neibaur writes, Hickman “was a frightened, angry, confused, egocentric, petty thief and cold-blooded killer who ended the life of a little girl . . . “ 

            Scientific America wrote of lepidopterists “describing butterflies darting into protective vegetation and scrambling beneath leaves when dark skies, strong breezes and the first raindrops signal an imminent storm.”

            Marion Parker, unlike the butterfly, didn’t recognize the “imminent storm” as it gathered in the form of William Edward Hickman.  We’ll never really know Hickman’s true intentions when he went to pick-up Parker at school, nor his ability to appreciate the difference between right and wrong. However, this long forgotten tragedy deserves our attention and we owe a debt of gratitude to Neibaur for bringing it to us.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. in New Castle, PA. 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)

Baltimore police uncomfortable making some arrests

Most Baltimore Police officers who participated in a recent informal survey feel restricted by the department’s federal consent decree, inadequately trained and unsupported by city leadership, reported the Baltimore Sun.

Some of the officers surveyed said they don’t even feel comfortable intervening in incidents and making arrests without having been called to the scene.

“They’re afraid,” said City Councilman Isaac “Yitzy” Schleifer, who conducted the unscientific survey. “In this political environment, you have to justify every move you make.”

About 362 of the department’s nearly 2,300 officers responded to Schleifer’s voluntary survey, which was sent at the end of 2018 via department email to police department leadership, officers and civilian members who responded anonymously. The short questionnaire asked basic biographical information, including respondents’ ages and how long they had served on the force, and questions about overall morale.

The results showed 43 percent said they do not feel “comfortable making self-initiated arrests,” which Schleifer said refers to proactive calls when officers are on patrol and they witness an incident and intervene, as opposed to calls they respond to through 911.

The survey also found that 74 percent said they “feel restricted by the consent decree,” while 44 percent said they don’t “fully understand the consent decree.” Only 60 percent said they feel “adequately trained” while 78 percent said they feel the department has “lowered our hiring standards.”

Two of every three officers who took the survey — 68 percent — also said they do not feel city leadership supports law enforcement.

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GateHouse: The southern border a ‘National Emergency’

Matthew T. Mangino

GateHouse Media

February 15, 2019

Congress and the President Donald Trump reached a bipartisan deal to avert a government shutdown. The recent 35-day shutdown was the longest in U.S. history. The deal only includes $1.375 billion for border barriers and increased border security - far short of the $5.7 billion President Trump had demanded.

President Trump will not take no for an answer when it comes to his signature campaign promise to build a wall. Trump has decided to fund his wall unilaterally - during Rose Garden remarks on Friday, the president declared a “national emergency” on the southern border.

Unknown to most Americans, our Constitution’s system of checks and balances can be easily swept away when a president declares a national emergency.

According to Elizabeth Goitein, writing in The Atlantic, “The moment the president declares a ‘national emergency’ - a decision that is entirely within his discretion - more than 100 special provisions become available to him.”

There are legitimate reasons to declare a national emergency. Usually, those reasons are clear and beyond debate - a catastrophic natural disaster, a threat from a foreign nation or war - but, a border wall?

The U.S. Constitution does not address the emergency powers of the president. It does, however, provide emergency powers to Congress. For instance, the Constitution permits Congress to suspend the writ of habeas corpus - allowing the government to imprison people indefinitely without due process.

However, the lack of authority to act has not stopped presidents from exercising authority they did not have. President Abraham Lincoln suspended habeas corpus during the Civil War.

Chief Justice Roger Taney issued a ruling that President Lincoln did not have the authority to suspend habeas corpus. Lincoln didn’t respond, appeal or release any prisoners. Lincoln was defiant, insisting that he needed to suspend the writ in order to save the union.

Five years later, the Supreme Court held that only Congress could suspend habeas corpus and that civilians were not subject to military courts, even in times of war.

Lincoln was not the first or last president to ignore the law during times of legitimate crisis. Hundreds of thousands of Japanese Americans were sent to internment camps by order of President Franklin D. Roosevelt following the attack on Pearl Harbor and throughout World War II.

It took the federal government 40 years to address Roosevelt’s abuse of power. Each camp survivor was awarded $20,000 in compensation by the government.

President George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks have also been acknowledged as an abuse of presidential emergency powers.

Although the courts have often found a way to justify an abuse of executive authority or just look the other way - the High Court, in a ruling out of Youngstown, Ohio, did overturn President Harry Truman’s bid to take over steel mills during the Korean War. This case, having been the exception provides little guidance on the limitations of presidential power.

The Constitution is relatively silent on the issue, but Congress has been anything but quite. Over the past century, Congress has repeatedly passed laws granting the president emergency powers that would otherwise have been reserved to itself.

Lorelei Laird wrote in the ABA Journal that President Trump will use the National Emergencies Act of 1976 to declare his national emergency.

Is there hope that the president’s emergency powers will be held in check?

The U.S. is currently under 31 concurrent states of emergency about a host of international issues, according to a CNN review of documents from the Congressional Research Service and the Federal Register.

The National Emergencies Act is woefully limited. First it doesn’t define what an emergency is and requires only that the president specify the statute under which he’s acting. Second, the Act provides that Congress must meet every six months to vote on whether the emergency declaration is still necessary, a task the Congress has never taken up since the law was enacted.

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.

To visit the column CLICK HERE

Trial Analyst Matthew Mangino Discusses Chris Watts case on Law and Crime Network

Watch my segment with Jesse Weber on Law and Crime Network talking about the wrongful death lawsuit filed against Chris Watts killer of his wife and two young daughters. To watch the segment CLICK HERE