Friday, July 3, 2015

GateHouse: Supreme Court ends term with flurry of criminal justice decisions

Matthew T. Mangino
GateHouse Media 
July 2, 2015 
The U.S. Supreme Court was extremely busy this term, or so it seemed.  The court made big news with decisions upholding Obamacare and same-sex marriage.
However, this past month the court also unleashed a flurry of less high-profile decisions focusing on the rights of those accused or convicted of a crime. Those decisions dealt with the First Amendment, Fourth Amendment, Sixth Amendment, Eighth Amendment and mandatory minimum sentencing.
The case generating the most attention was out of Oklahoma. In that case the Supreme Court revisited the issue of lethal injection.
At the time of the first lethal injection decision in 2008, nearly every state was using a three drug lethal injection protocol that consisted of the same, or similar, substances.  Since the court’s 2008 decision drug manufacturers either stopped producing or refused to sell the drugs to corrections officials.  The decision was based, in part, on moral grounds and in part on public relations concerns.  The result was a shortage of execution drugs.
As a result, states began to change their protocols. Oklahoma went to a single drug protocol. Ohio went to a two drug protocol and then states began to substitute drugs. Midazolam became a part of the drug protocol in Ohio and Oklahoma and both states experienced “botched” executions in 2014.
This week the Supreme Court said that the condemned inmates failed to present a less painful alternative to carry out executions and therefore the use of midazolam was not a violation of the Eighth Amendment’s ban against cruel and unusual punishment.
Also this term, a case out of Ohio made it easier for law enforcement to prosecute child abuse cases.  The case involved comments made by a 3-year-old boy to his preschool teacher about physical abuse at the hand of his mother’s boyfriend.
The child was unavailable to testify at trial so prosecutors used what the boy said as evidence to help convict the boyfriend. 
“The question in this case is whether the Sixth Amendment’s confrontation clause prohibited prosecutors from introducing those statements when the child was not available to be cross examined,” wrote Justice Samuel Alito. “Because neither the child nor his teachers had the primary purpose of assisting in [the boyfriend’s] prosecution, the child’s statements do not implicate the confrontation clause and therefore were admissible at trial.”
The Supreme Court also struck down a 1984 federal law that sets a mandatory minimum 15-year sentence for a third conviction of a "violent felony or serious drug offense." The law is the federal version of "three strikes" laws that impose long penalties for repeat offenders.
The law included what the Wall Street Journal called "a catchall provision that has bedeviled the courts: any crime that 'presents a serious potential risk of physical injury to another.'  Writing for the court's majority, Justice Antonin Scalia said that "Nine years’ experience trying to derive meaning from the [law] convinces us that we have embarked upon a failed enterprise." 
 In another criminal justice decision, the high court struck down a Los Angeles ordinance enacted in 1899. The ordinance allowed police to search hotel registries without a warrant with the goal of cracking down on prostitution, gambling, and drug trafficking, particularly at low-cost hotels and motels, reported the Los Angeles Times. 
Hotel owners argued that the ordinance was a violation of their Fourth Amendment rights against unreasonable search and seizure. The Supreme Court agreed.
Finally, the Supreme Court ruled in favor of a Pennsylvania man who posted several violent messages on Facebook and was convicted under a federal threat statute — the first time the court raised the implications of the First Amendment and social media, reported CNN.
The court said that it wasn't enough convict based solely on the idea that a reasonable person would regard a communication as a threat. "Our holding makes clear that negligence is not sufficient to support a conviction," wrote Chief Justice John Roberts.
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 at @MatthewTMangino. 
To read more CLICK HERE 

Wednesday, July 1, 2015

Virginia considers bringing back parole 20 years after its abolition

Virginia Gov. Terry McAuliffe will create a commission to study reinstating parole in Virginia, two decades after it was abolished by then-Gov. George Allen amid a wave of tough-on-crime laws across the country, reported the Washington Post.
During a radio appearance Wednesday, McAuliffe (D) signed an executive order to review whether doing away with parole reduced crime and recidivism, analyze costs and make recommendations.
“It’s time to review whether that makes sense. Is it keeping our citizens safe? Is it a reasonable, good, cost-effective way? Are we rehabilitating folks?” he said. “Are sentences too long for nonviolent offenses? Are we keeping people in prison too long?”
The move is consistent with McAuliffe’s push to restore voting rights to thousands of former prisoners and remove from state job applications questions about criminal records, known as the ‘ban the box’ campaign.
It also comes at a time when the country is redefining the way it enforces its laws, and sometimes questioning the strict policing and corrections strategies of the 1990s.
To read more CLICK HERE

Mangino talks The Executioner's Toll on Justice for All

Listen to my interview with Georges Yates on Justice For All on WHKT-AM regarding my book The Executioner's Toll, 2010.  To listen CLICK HERE

Tuesday, June 30, 2015

Mangino talks lethal injection on KABC in Los Angeles

Listen to my interview on Dr. Drew Midday Live with Mike Catherwood on KABC in Los Angeles, California.  To listen CLICK HERE

Pennsylvania bill seeks to end civil asset forfeiture

A proposal to end civil asset forfeiture in Pennsylvania has bipartisan backing among state lawmakers, reported WESA-FM.
House and Senate plans would halt a practice that allows law enforcement to seize property from someone accused, but not convicted, of certain crimes.
The legislation would require law enforcement to first get a conviction before seizing any property. Under the House and Senate bills, any money generated from the seizure or sale of those items could not go straight into the coffers of the law enforcement unit.
The effort faces fierce opposition from prosecutors, some of whom use civil forfeiture to help fund their investigations. The Pennsylvania District Attorneys Association calls the policy is an important public safety tool and a way to take the profit out of drug crimes.
At a press conference Tuesday, several supporters hastened to add that they are not “anti-police.”
“We support law enforcement, we support our district attorneys,” said Rep. Tim Krieger (R-Westmoreland). “But no one should have their property taken from them without being charged.”
“We support the D.A.s," added Sen. Tony Williams (D-Philadelphia, "but we don’t support robbery represented in government, wrapped in the flag."
The city of Philadelphia, along with its police department and district attorney’s office, is facing a class-action lawsuit from property owners over its use of civil asset forfeiture.
To read more CLICK HERE

Monday, June 29, 2015

Supreme Court upheld use of Oklahoma execution drug

The U.S. Supreme Court on Monday upheld the use of a key drug used in Oklahoma's lethal injection protocol, reported The Huffington Post.

The lawsuit that prompted the decision was brought on by lead plaintiff Richard Glossip, an Oklahoma inmate who has been on death row for 17 years. Lawyers for the plaintiffs argued that midazolam, the first drug used in Oklahoma's three-part lethal injection protocol, can't reliably render an inmate unconscious and free of pain while the second and third drugs paralyze him and stop his heart, thus making the execution cruel and unusual punishment. Midazolam was first used in Oklahoma's botched execution of Clayton Lockett in 2014, and since then has been used in putting to death more than a dozen inmates.

GateHouse: Supreme Court makes it easier to prosecute child abuse

Matthew T. Mangino 
GateHouse Media 
June 26, 2015 
Confrontation plays a significant role in every criminal trial. Not the yelling, threatening, finger-pointing conduct we have grown accustomed to when we hear the word confrontation. The Sixth Amendment provides that an accused has the right to confront all witnesses against him.
In theory, the Confrontation Clause insures that a person charged with a crime has the right to come face-to-face with an accusing witness. That confrontation comes in the form of cross-examination.
Over time the Confrontation Clause was weakened by a series of court decisions. More and more statements made outside of court were being admitted at trial.
In 2004, the U.S. Supreme Court made a major Confrontation Clause decision barring most out-of-court statements of witnesses who were unavailable to testify at trial. The court reaffirmed that cross-examination is required to admit a prior testimonial statement of an unavailable witness.
According to Noah Feldman, a Bloomberg columnist, Justice Antonin Scalia’s opinion in 2004 required the court to ask whether the out-of-court statement was a form of testimony. If it was, the statement would be excluded; if not, it could be admitted. Scalia intended to toughen the standards for admitting testimony making it more difficult to admit statements made out of court when the witness was unavailable to testify.
Since 2004, the Supreme Court has examined the Sixth Amendment with differing results. The high court recently carved out an exception. The court ruled unanimously that if a child tells a teacher about a crime and the child is not old enough to testify in court, the statements made to the teacher may be used at trial without violating the Confrontation Clause.
The case, out of Ohio, involved comments made by a 3-year-old boy to his preschool teacher about physical abuse at the hand of his mother’s boyfriend. Prosecutors used what the boy said as evidence to help convict the boyfriend. Under Ohio law, children under age 10 are considered too young to be able to give competent testimony in court, so the boy was not called as a witness.
“The question in this case is whether the Sixth Amendment’s confrontation clause prohibited prosecutors from introducing those statements when the child was not available to be cross examined,” wrote Justice Samuel Alito. “Because neither the child nor his teachers had the primary purpose of assisting in [the boyfriend’s] prosecution, the child’s statements do not implicate the confrontation clause and therefore were admissible at trial.”
Justice Alito said that there could be additional circumstances in which an out-of-court statement to someone other than police could be used at trial without violating the Confrontation Clause. Alito went on to write that the out-of-court statement of a child too young to testify would almost always be admitted. 
 Justice Alito was joined by Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor. The three other Justices only supported the decision’s outcome, not Alito’s reasoning.  
Justice Scalia, in a separate opinion joined by Justice Ruth Bader Ginsburg, took on Alito for trying to undermine his 2004 opinion that sought to bolster the Confrontation Clause. Scalia in his usual caustic tone accused Alito of undermining a fundamental right protected by the U.S. Constitution. 
The decision is not a complete surprise. In this time of heightened sensitivity to physical and sexual abuse of children, this decision is a logical step in the ever expanding ability to prosecute and punish those who prey on children. 
According to the USA Today, those who advocate for educators were encouraged by the decision. “This case could have had a chilling effect on teacher-student interactions,” said Lily Eskelsen GarcĂ­a, president of the National Education Association. “Teachers aren’t cops. To confuse those two roles could have hampered educators’ ability to help their students.” 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino. 
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