Oklahoma carries out its 5th execution of 2013

The 37th Execution of 2013

Ronald Clinton Lott was executed in Oklahoma on December 10, 2013 for raping and murdering two elderly women in the 1980s, reported CBS News. Lott was the fifth person executed in Oklahoma this year.

Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City City homes. DNA evidence linked him to the crimes. He made no final statement.

"Ronald Lott was sentenced to death by a jury of his peers for the heinous and unconscionable acts he committed against Anna and Zelma in their homes," Attorney General Scott Pruitt said in a statement.

According to Oklahoma criminal appeals court records, evidence presented at trial suggested Lott attacked the women and sat on their chests, breaking their ribs. Both had numerous bruises and were asphyxiated.

Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.

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White House Sets $100 Million For Mental Health Treatment

The Obama administration is announcing a $100 million plan to improve mental health services in advance of the one-year anniversary of the Newtown school shooting, USA Today reports. Vice President Biden announced  the plan this week with families who lost loved ones during the Dec. 14 attack on Sandy Hook Elementary School.

The $100 million will be made available "to increase access to mental health services and improve mental health facilities as part of the Administration's ongoing commitment to help individuals experiencing mental health problems," said the White House. Half the money will come through the new health care law to help community centers provide more mental health services. The rest, via the Department of Agriculture, will help finance rural facilities.

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U.S. Supreme Court Examines Fourth Amendment Rights

Matthew T. Mangino
The Pennsylvania Law Weekly
December 9, 2013

The U.S. Supreme Court recently heard arguments in a Fourth Amendment case that has the potential to undermine a homeowner's reasonable expectation of privacy.

The case argued before the Supreme Court is Fernandez v. California, 12-7822. The issue before the court began in 2009 when police responded to the report of a robbery. An officer saw a man who resembled the suspect running into an apartment building. When officers announced themselves, a woman opened the door. Inside the apartment, police spotted Walt Fernandez, who they believed was their man.

The police asked the woman if they could search the apartment. Fernandez stepped forward and strenuously objected to the search.

Police arrested Fernandez for robbery and left the woman in the apartment. About an hour later, one of the officers returned to the apartment, told the woman that Fernandez was in custody and asked once again if he could search the apartment. The woman agreed.

Police found a sawed-off shotgun, ammunition and a knife, which prosecutors used as evidence to prove Fernandez was guilty of robbery. Fernandez argued that the evidence was seized illegally.
The ability to search a residence with consent of one co-tenant dates back to United States v. Matlock, 415 U.S. 164 (1974). In Matlock, the court stressed that co-tenants "assume the risk" that one tenant will consent to a police search of the residence, so if only one tenant is present, he or she can consent for all of the tenants.

In Georgia v. Randolph, 547 U.S. 103 (2006), the court narrowed the "co-tenant rule" established in Matlock. In Randolph, the police were called to a home wherein a husband and wife were arguing. The wife complained of the husband's drug use. The police asked for his permission to search the residence; he refused. The police asked the wife if she would consent to the search. She agreed and took the police inside, where they found illegal drugs.

A majority of the court concluded that "no sensible person" would enter a residence when one co-tenant is present and objecting. A tenant's "reasonable expectations" of privacy resulted in the evidence of the husband's drugs being suppressed.

There is a deep split among the federal circuit courts regarding the issue presented in Fernandez. The U.S. Court of Appeals for the Ninth Circuit's holding not allowing the police to conduct a consensual search if one tenant grants permission after the refusing tenant leaves is in conflict with holdings in the Eighth, Seventh, Fifth and Fourth circuits, as well as the state supreme courts of Colorado, New York and Wisconsin.

Michigan courts, an Oregon state appellate court and the District of Columbia agree with the Ninth Circuit.

During this month's argument before the U.S. Supreme Court, some justices appeared to agree with attorneys for the Los Angeles Police Department.

"It's her house, too," Justice Stephen G. Breyer said, according to The Los Angeles Times. "Can she never invite the policeman in?"

"The police can simply get a warrant," Fernandez's attorney replied.

But Chief Justice John G. Roberts Jr. said the police may find obtaining consent from a tenant "simpler, faster and less burdensome than applying for a warrant."

There are a number of concerns with the facts in Fernandez.

Can the police use an arrest as a pretext to proceeding with a warrantless search? Presumably, if the police have probable cause for an arrest, they would have sufficient probable cause for a search warrant. Can police dispense with a search warrant merely because it is quicker and easier to get consent from one tenant over the objection of another tenant?

Is the issue in Fernandez more about expediency than an infringement on a reasonable expectation of privacy?

There is a history of using pretextual traffic stops to get probable cause for a search. In Whren v. United States, 517 U.S. 806 (1996), police waited for a suspect to commit a vehicle code violation and pulled the vehicle over with probable cause. Police have also utilized the assistance of drug-sniffing dogs to establish probable cause to search vehicles that were subject to pretextual stops.
There are also accepted exceptions to getting a warrant prior to conducting a search. Exigent circumstances may permit a search in, as Roberts put it, a "simpler, faster and less burdensome" manner.

Only Justice Sonia Sotomayor strongly argued for requiring police to obtain a warrant from a magistrate before searching a home. At one point, Sotomayor exclaimed, "Get a warrant. When you have probable cause to believe a crime has been committed ... you've got to secure the premises and get a warrant. I don't know why that's so difficult for police officers to understand."
A suspect that clearly and unequivocally asserts his or her refusal to consent to a search should have that assertion honored.

There have been other exceptions carved out when specifically invoking constitutional protections. For instance, in Maryland v. Shatzer, 550 U.S. ___ (2011), the court found that when an accused invokes the Sixth Amendment right to counsel, the police may not seek to question the accused again until at least 14 days pass and the accused is not in custody.

This seems like a useful pause that would permit the accused to reflect on his or her need for counsel. Such a pause would be impractical in a search-related situation. An accused's memory of events are not likely to change in 14 days, but potential evidence existing in a place to be searched can be removed or destroyed.

Black-letter law provides that the Fourth Amendment prohibits unreasonable search and seizure. At stake is a suspect's reasonable expectation of privacy. A suspect's Fourth Amendment rights are preserved when a disinterested magistrate authorizes a search of a specific location for specifically detailed items.

The warrant is issued only upon probable cause. The high court should not permit the police to do any less to search Fernandez's home.


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a former district attorney for Lawrence County and a former member of the Pennsylvania Board of Probation and Parole. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Federal judge: Prosecutors coerce guilty pleas

“Prosecutors routinely threaten ultraharsh, enhanced mandatory sentences that no one — not even the prosecutors themselves — thinks are appropriate,” said Judge John Gleeson, of the United States District Court for the Eastern District of New York, reported the New York Times. The way prosecutors use this hammer, Judge Gleeson wrote, “coerces guilty pleas and produces sentences so excessively severe they take your breath away.”

The result is that federal drug trials have become a rarity: 97 percent of defendants plead guilty.
       

A new study by Human Rights Watch, in New York, is the first to quantify what some call the “trial penalty,” the extra prison time that federal drug defendants get if they exercise their right to a trial and lose.

A Justice Department spokeswoman, Ellen Canale, told the Times that the department “seeks to ensure that these enhancements are reserved for serious, high-level or violent drug traffickers” and “agrees that the enhancements should not be used to coerce defendants.”

William G. Otis, an adjunct professor at the Georgetown University Law Center and a former federal prosecutor, said that the reason defendants were in a poor bargaining position was not a result of prosecutors’ abuse, but because “there is solid proof they committed a crime.” The fact that violent crime has declined significantly over the last 20 years means that the system is generally working well, he told the Times.

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Why do innocent people confess to crimes?

The answer may surprise you--misplaced faith in the justice system.

Douglas Starr author of a new article in the New Yorker,  "The Interview: Do Police Interrogation Techniques Produce False Confessions?", told Terry Gross on NPR's Fresh Air:

First of all, there's a group of people who confess falsely to something because there's something wrong with them. More than 200 people confessed to the kidnapping and murder of the Lindbergh baby. ... But there are external reasons as well. ... If you're held in a room and you think there's no way out, but you're sure that the justice system will eventually exonerate you, you might actually confess just to get out of the situation. When you're in a situation where [your] denial is batted away no matter what you say and they start lowering the barrier of confession ... it becomes the easy way out. Interestingly, naive people, with faith in the justice system, tend to confess more because they're sure something will work out on the other side. The trouble is confession trumps everything. Even physical evidence will bend once somebody's confessed because confessions are so compelling.

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GateHouse: Congress hesitates in the face of 3-D guns

Matthew T. Mangino

GateHouse News Service

December 6, 2013

 

Last December, Congressman Steve Israel urged his colleagues to renew a federal ban on plastic guns that can evade detection at airports, public buildings and schools. He alluded to futuristic weapons made partially with three-dimensional printers.

 

“It is just a matter of time before these three-dimensional printers will be able to replicate an entire gun,” Israel said during a news conference last year at Long Island MacArthur Airport.
 

The future is now, and the Senate, a year later, has not renewed the Undetectable Firearms Act and the House has refused to update the law.

 

If the act is not renewed and updated before it expires next week, firearms manufactured in basements and backrooms can slip past metal detectors and X-ray machines.

 

The Undetectable Firearms Act bans guns that can pass unnoticed through detection devices, and has been renewed twice in the 25 years since it was first enacted. However, when the law was enacted and renewed, most recently in 2003, no one anticipated 3-D guns.

 

Cody Wilson a 25-year-old second-year law student at the University of Texas published the 3-D gun-making blueprints. His website Defense Distributed was shut down by The State Department over concerns about exporting of firearms. However, in the short time the website was up more than 100,000 copies of the blueprint were downloaded.

 

According to the College Station Eagle, most high-end industrial 3-D printers fabricate an object using a technique called laser sintering. These printers can create any item, such as a gun, by creating a 3-D rendering in a computer and digitally slicing it into 2-D layers. The rendering is then transferred to the printer, which uses materials, mostly plastics, and a binding agent to build the gun layer-by-layer. Essentially, the printer binds the 2-D layers on top of each other to form a 3-D object.

Nick Bilton explained in the New York Times that 3-D printers are quickly becoming a consumer product. 

 

“These printers, which now cost about $1,000 … long used by industrial companies to make prototypes and parts, 3-D printers are becoming faster and less expensive almost weekly,” he said.

 

Recently, the ATF tested two versions of the printed 3-D gun. One printed with material known as Visijet, and another in stronger plastic known as ABS. An ATF spokesman told Forbes that the ABS gun shot eight rounds without problems in its tests. The Visijet gun immediately exploded on firing.

As the renewal of the Undetectable Firearms Act becomes contentious in Congress, Philadelphia’s City Council voted unanimously last month to prohibit the use of 3-D printers to create any firearm or “any piece thereof” unless that person possesses a license to manufacture firearms.

The extension of the Undetectable Firearms Act has been delayed as lawmakers fight over whether to simply extend the act or amend it to include new provisions aimed specifically at 3-D weapons.

The law expires on Dec. 9, reauthorizing it has been caught up in a political standoff that has thwarted other recent attempts to enact gun legislation. This week, the House renewed the act without addressing 3-D guns.

New York Sen. Chuck Schumer intends to offer an amendment in the Senate that prohibits the manufacturing of 3-D guns without a permanent piece of metal imbedded in the gun to trigger metal detectors and other detection devices.

According to the New York Times, Alabama Sen. Jeff Sessions said he was concerned not about extending the law as written but about senators like Schumer who support gun-safety measures using the law as a backdoor way of attaching additional provisions.

“They’re considering altering it, putting more language in it,” Sessions said. “There’s concern that it may be altered in a way that would be problematic.”

Political posturing aside — lawmakers, prosecutors and police chiefs know what is at stake. If stopping the proliferation of firearms that are not detectable at airports, public buildings and schools is "problematic” we need to rethink our public safety priorities.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Cautionary Instruction: ‘Stand your ground’ back in the news

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
December 6, 2013

The controversial self-defense law known as ‘Stand Your Ground’ is back in the news. Two tragic killings, one in a small north Georgia community near the Tennessee border and the other in Dearborn Heights a suburb of Detroit, have once again heightened awareness of the law.

In Georgia, 72-year-old Ronald Westbrook, suffering from Alzheimer’s had wondered away from his home in the frigid early morning hours the day before Thanksgiving.

Westbrook ended up nearly three miles from home with a handful of other people’s mail, jiggling the doorknob of a home owned by Joe Hendrix.

Hendrix, a 34-year-old Iraq war veteran, stepped onto his porch with a Glock pistol in his hand and his fiancée inside on the phone with a 911 dispatcher. He fired four shots. One hit Westbrook in the chest killing him.

Last month, Theodore Wafer was charged with murder in Wayne County, Michigan after he blasted Renisha McBride in the head with a shotgun after she knocked on his door following a car crash.

McBride was under the influence of alcohol when she was injured in an automobile accident and wandered away from the scene and on to Wafer’s porch in the middle of the night.

Prosecutor Kym Worthy said 'self-defense was not warranted'. The prosecutor believed that Wafer could not have reasonably believed his 'life was in imminent danger'.

Laws in at least 22 states allow that there is no duty to retreat from an attacker in any place in which one is lawfully present. (Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.) At least nine of those states include language stating one may “stand his or her ground.” (Alabama, Florida, Georgia, Kansas, Kentucky, Louisiana, Oklahoma, Pennsylvania and South Carolina.)

Pennsylvania's expanded castle doctrine gives individuals the right to use deadly force without retreating anywhere they are legally allowed to be, provided they reasonably believe they are facing death, serious injury, kidnapping or rape, per 18 Pa.C.S. Sec. 505. The key difference is, in Pennsylvania, the aggressor must be armed with a gun or other lethal weapon capable of inflicting death or serious bodily injury.

More states are jumping on board. The Ohio House of Representatives voted recently to adopt a variation of the stand your ground.

The legislation has been mockingly referred to as the “George Zimmerman bill,” named for the Florida man — recently arrested again — whose killing of 17-year-old Trayvon Martin fueled a national debate on stand your ground and self-defense.

Under current Ohio law, residents have a duty to retreat before using deadly force. Ohio House Bill 203 would eliminate the duty to retreat. The law would, under certain circumstances, permit the use of deadly force in self-defense.

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