Facial recognition under scrutiny in some cities

Facial recognition technology raises fears of a dystopian surveillance state, with vanishing privacy and a high potential for abuse, reports The New York Times. Such concerns led San Francisco this week to ban any use of facial recognition by the police and other city agencies.

But it is also a powerful and efficient tool that, much like DNA analysis, offers a way to bring policing into the modern age and help catch wrongdoers or solve crimes that have gone cold.

It has been used to arrest men accused of child sex abuse, including a fugitive who had fled to Nepal and a man in Oklahoma who had been at large for two decades. It has helped nab a trio of jewel thief suspects and people who the authorities said were trying to enter the country under fake names.

It is difficult to say exactly how many of the nation’s 18,000 police departments use facial recognition or how they deploy it. Some departments have been caught using it without the public’s knowledge, or to search crowds of protesters for people with outstanding warrants.

But since the San Francisco ban, several agencies have come forward to argue that it is counterproductive to forbid any use of what they call a valuable tool that generates investigative leads.

Some departments, including the New York Police Department, have policies that say that a possible match found by facial recognition does not constitute an identification or probable cause for an arrest.

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GateHouse: The NRA’s greatest fraud

Matthew T. Mangino

GateHouse Media

May 17, 2019

In 1991, retired Chief Justice Warren Burger, being interviewed on PBS News Hour, described the National Rifle Association’s (NRA) lobbying in support of an expansive interpretation of the Second Amendment like this, “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”

The NRA has taken fraud to a whole new level.

In a battle to take control of the NRA, the organization’s president Oliver North and Chief Executive Officer Wayne LaPierre began to publicly air the NRA’s dirty (and expensive) laundry. For starters, according to the New York Times, LaPierre billed to the NRA $275,000.00 for purchases at the Zegna luxury men’s wear boutique in Beverly Hills. North, who was going to serve without pay, had a contract worth millions of dollars a year. Other payments included $60,000 for advertising on a TV show featuring the rock musician and NRA board member Ted Nugent.

All this while gun deaths of school-age children in the United States have increased at an alarming rate, with 38,942 fatalities among 5- to 18-year-olds from 1999 to 2017, according to a new study by Florida Atlantic University’s Schmidt College of Medicine, reported CNN.

Dr. Charles Hennekens, the study’s senior author said, “It is sobering that in 2017, there were 144 police officers who died in the line of duty and about 1,000 active duty military throughout the world who died, whereas 2,462 school-age children were killed by firearms,”

No one will challenge the gun lobby, even though much of what is touted is based on a false premise. The Second Amendment provides, “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In an excerpt from former Supreme Court Justice John Paul Stevens’ forthcoming memoir he writes, “Throughout most of American history there was no federal objection to laws regulating the civilian use of firearms.” He went on to write, when he was appointed in 1975 to the Court, ”(B)oth state and federal judges accepted the Court’s unanimous decision in United States v. Miller as having established that the Second Amendment’s protection of the right to bear arms was possessed only by members of the militia and applied only to weapons used by the militia.”

In Miller, the National Firearms Act was used to convict a man for transporting a 12-gauge shotgun with a barrel less than 18 inches long across state lines. The man neither registered the gun nor had a written order for it, as required by the Act.

The Supreme Court found that the National Firearms Act did not violate the Second Amendment of the United States Constitution.

The Court could not find that a sawed-off shotgun had any reasonable relation to the preservation of a well-regulated militia, and “therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

Miller remained the law until 2008, when by a 5-4 decision the Supreme Court recognized an individual’s right to possess a firearm under the Constitution. Justice Stevens calls the decision “unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.”

E.J. Dionne Jr. of the Washington Post says the NRA’s overzealous support of the Second Amendment is about more than guns, it’s about politics. “The anti-government right knows it can’t sell Americans of modest incomes on its opposition to minimum wages, corporate regulation or more progressive taxes. So they channel their arguments through the gun issue and pretend that this is really a culture war ... ”

It is unquestionably the NRA’s greatest fraud.
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.

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Alabama and Tennessee inmates executed within four minutes of each other

The 6th and 7th Executions of 2019

Michael Brandon Samra and Donnie Edward Johnson were executed within four minutes of each other on May 16, 2019, in Alabama and Tennessee, respectively, reported The Marshall Project.  Samra was convicted of capital murder and was sentenced to death for his role in the 1997 killings of Randy Duke, his fiancée, Dedra Mims Hunt, and her two daughters, 6-year-old Chelisa Nicole Hunt and 7-year-old Chelsea Marie Hunt. Randy Duke was the father of Samra's friend and co-defendant, 16-year-old Mark Duke.

The adults were shot to death, but court records state Mark Duke and Samra, then 19, slit the girls' throats with kitchen knives after they ran out of bullets.

According to court records, Mark Duke planned the murders after he got into a fight with his father over using a pickup truck. Mark Duke was also convicted and sentenced to death, but that sentence was later changed to life in prison without the possibility of parole because of Mark Duke's age at the time of the crime.

Johnson was sentenced to death for the Dec. 8, 1984 murder of his wife, Connie Johnson, in Memphis.

He suffocated his wife by stuffing a large plastic bag down her mouth in the offices of a camping equipment center where he worked, according to court documents. Johnson then asked an inmate on work-release at the camping center to help him move Connie Johnson’s body into her van.

They moved the body and left the van in a mall parking lot, where it was found the next day.

Donnie Johnson initially told police he was not involved in the murder, but he no longer contests his guilt. Instead, Johnson, now 68, says he should be spared because of how much he’s changed over the course of three decades behind bars.

In a clemency application submitted to Tennessee Gov. Bill Lee, Johnson’s lawyers said he had gone from "a liar, a cheat, a con man and a murderer" to an ordained elder in the Seventh-day Adventist Church "with a flock in prison."

Johnson’s appeal for mercy leans heavily on his Christian faith and his relationship with his stepdaughter, Cynthia Vaughn, the victim’s daughter.

Vaughn initially condemned Johnson for killing her mother, at one point saying, "I want the freak to burn." But after meeting with Johnson in 2012, she forgave him and became the most compelling advocate in his fight to avoid execution. Vaughn has requested a meeting with the governor to make the case for mercy. Lee's Christian faith played a central role in his campaign for governor.

Johnson can decide if he will be executed by lethal injection or electric chair. His attorneys say he is postponing that choice until the U.S. Supreme Court rules on a pending challenge to Tennessee’s lethal injection protocol.

Johnson was initially set to die by electrocution in 2006, but a federal appeals court delayed it days beforehand in order to vet a complaint about the main witness against him. Johnson’s legal team has said they don’t plan to make any other attempts to delay or block his execution aside from the petition for clemency.

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The Vindicator: MATTHEW MANGINO | ‘Dysfunctional’ Ohio Parole Board urgently needs parole guidelines

Matthew T. Mangino

The Vindicator

May 15, 2019

When former Ohio lawmaker Shirley Smith resigned from the Ohio Parole Board, she told the Dayton Daily News that the agency was “dysfunctional, secretive and toxic.”

There are approximately 49,500 inmates in Ohio’s state prison system. The parole board has discretion over only about 9,000 inmates. In 1996, the state enacted truth-in-sentencing requiring sentences of a specific term. As a result, the board has discretion over about 3,900 inmates sentenced under the old law and another 5,000 inmates serving life sentences for serious crimes such as murder.

The Ohio Parole Board may only grant parole “if in its judgment there is reasonable ground to believe that ... paroling the prisoner would further the interests of justice and be consistent with the welfare and security of society.”

According to the Daily News, between 2011 and October 2018, the parole board granted release for 1,076 inmates out of the 10,575 interviews it conducted – a parole rate of 10.2 percent.

Video conference

Board members are appointed by the director of the Ohio Department of Rehabilitation and Correction. Board members interview parole-eligible inmates via video conference. Interviews and deliberations are closed, but decisions are public record.

The Ohio Parole Board operates largely behind closed doors. Records are kept secret, full board meetings are open to the public but debate and votes are conducted behind closed doors.

Smith’s departing critique of the board has opened the system, and process, to scrutiny. Criticism has begun to grow from crime victims, inmates and attorneys.

The Department of Rehabilitation and Correction has a new director – Annette Chambers-Smith. The new director is talking about reform. She believes change is needed, including increased transparency.

Gov. Mike DeWine has also jumped into the fray. DeWine would like to add new members to the parole board from different backgrounds, improve training and establish new guidelines weighing inmate misconduct.

Inadequate suggestion

Although the governor’s suggestion to create behavior guidelines is a step in the right direction, it too is inadequate. Ohio needs to establish guidelines to aid board members in making decisions. For instance, the Pennsylvania Board of Probation and Parole, on which I served for six years, uses a regularly normed parole guideline. The instrument is generated for every inmate eligible for parole and being interviewed by a panel of the parole board.

The Pennsylvania parole guidelines consider such things as behavior in prison, program completion, prior supervision history, prior criminal history, future risk and the nature of the offense resulting in the inmate’s incarceration.

Each inmate is provided a numerical score which indicates whether the inmate is “likely” or “unlikely” to be paroled.

The Pennsylvania Board also uses various assessments including risk, sex offending, mental health and drug and alcohol. The guidelines provide uniformity to the board’s decision making. The parole rate for the Pennsylvania Board of Probation and Parole is about 58 percent.

That is not to suggest that Ohio’s parole rate should be comparable. Pennsylvania’s board sees, or votes on, the parole of every violent and non-violent offender in state prison who is eligible for parole.

Hefty sentences

Ohio’s board is only seeing inmates who were incarcerated before truth-in-sentencing was established. The inmates who are left received hefty sentences and many presumably committed serious, violent offenses. The other segment of the prison population Ohio deals with are lifers. The lifers are usually the worst of the worst.

DeWine said his administration is appointing three new members to the board – a public defender, a prosecutor and a state lawmaker.

“The reforms of the Parole Board are a work in progress. There is going to be more besides what we are announcing today,” he told the Daily News, adding that he is working with state lawmakers on additional changes.

Creating parole guidelines would provide consistency and transparency to the parole process in Ohio and would go a long way toward gaining the confidence of the governor, lawmakers and most importantly, the public.

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)

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Study: More school-age children die from guns than police officers and soldiers combined

Gun deaths of school-age children in the United States have increased at an alarming rate, with 38,942 fatalities among 5- to 18-year-olds from 1999 to 2017, according to a new study by Florida Atlantic University's Schmidt College of Medicine, reported CNN.

Indeed, spikes in gun deaths over the past decade amount to epidemics, researchers said.

"It is sobering that in 2017, there were 144 police officers who died in the line of duty and about 1,000 active duty military throughout the world who died, whereas 2,462 school-age children were killed by firearms," said Dr. Charles Hennekens, the study's senior author and an academic adviser at the medical college.

The study, to be published in the American Journal of Medicine, found that children are being gunned down in staggering numbers, with the death rate six to nine times higher than other developed nations.

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SCOTUS fights about last minute execution appeals

An ongoing feud between Supreme Court justices over the application of the death penalty escalated again as the justices filed opinions in two death penalty cases and took the rare step of issuing public explanations to explain their bitter divide, reported CNN. Death penalty cases are sometimes decided late at night, and the conservative justices on the court, especially Samuel Alito, Neil Gorsuch and Clarence Thomas, believe that inmates are engaging in last-minute appeals as a dilatory tactic. That dispute has been playing out in various cases all year long.The orders further unmasked the tension building between the three conservative justices and liberals who think the justices should defer to lower courts when it comes to specific facts in individual death penalty cases, as well as Chief Justice John Roberts and Justice Brett Kavanaugh, who have also sided at times with inmates.

Monday's first case concerned Alabama inmate Christopher Lee Price, who challenged his planned lethal injection execution last month. The court denied his stay of execution in an opinion that triggered a nearly 3 a.m. dissent from Justice Stephen Breyer, joined by three other liberal justices, who asserted the planned sentence would be carried out in an "arbitrary way." Price's death warrant expired before the justices acted.

Thomas, Alito, and Gorsuch criticized their fellow justices for waiting beyond midnight to handle the effort to block the execution, resulting in what will be a seven-week delay.

Thomas said he wanted to "set the record straight," about how things were handled. He called Price's complaints "procedurally unremarkable and constitutionally acceptable," and said the issue is all about timing.

"Of course, the dissent got its way by default. Petitioner's strategy is no secret, for it is the same strategy adopted by many death-row inmates with an impending execution: bring last-minute claims that will delay the execution, no matter how groundless," Thomas wrote. "The proper response to this maneuvering is to deny meritless requests expeditiously."

"Whatever the right answer is to how the Supreme Court should handle 11th hour applications in capital cases, this isn't it," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

"The justices are clearly at loggerheads over what the rules should be when death-row inmates seek to challenge the method of their execution, but the right thing to do is to take a case on the merits, have full briefing and argument, and resolve the matter conclusively -- rather than continuing to snark at each other in separate opinions across different cases," he added.

According to the state, Price and an accomplice wielded a sword and a knife in 1991 and stabbed Bill Lynn, a minister, to death.

Awaiting execution, Price had recently argued that Alabama's lethal injection protocol would cause him severe pain and asked that the state use lethal gas as an alternative. Two lower courts had agreed to put the execution on hold, but after Alabama Attorney General Steve Marshall petitioned the Supreme Court, the majority agreed to lift the stay of execution.

Price is now scheduled to be executed on May 30, the Montgomery Advertiser reported.

Thomas went to great lengths to describe the murder that Price was accused of committing involving a minister, Bill Lynn, who was returning from church, and criticized Breyer for failing to include those details.

Thomas wrote that while "Bill died a slow lingering and painful death," 20 years after the conviction Lee was trying to delay his death.

"It is difficult to see his litigation strategy as anything other than an attempt to delay his execution," Thomas wrote.

The second case involved Patrick Henry Murphy, who argued that he should not be executed in Texas because the state would not allow his Buddhist spiritual adviser to be present in the death chamber.

In that case, the court stayed Murphy's execution.

On Monday, Alito, joined by Thomas and Gorsuch, said he wanted to take the opportunity to explain why "the court's decision to grant the stay was seriously wrong."

Alito, picking up on the same theme from the Alabama case, said that Murphy was "egregiously delayed" in raising his claims.

"By countenancing such tactics, the court invites dispute," Alito wrote.

But Kavanaugh, joined by Roberts, wrote to explain their votes to allow the stay. They noted that under Texas' policy at the time, inmates who were Christian or Muslim could have their spiritual advisers in the room. But inmates of other religions could not.

"That discriminatory state policy violated the Constitution's guarantee of religious equality," Kavanaugh wrote. They noted that Texas has now changed the policy and no longer allows any religious ministers in the viewing room.

"In sum, this court's stay in Murphy's case was appropriate, and the stay facilitated a prompt fix to the religious equality problem in Texas' execution protocol," Kavanaugh said.

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The rights of the accused vs. The rights of the victim

Andy Hoover, the communications director for the ACLU of Pennsylvania, wrote the piece below as part of a series on Due Process for the Pennsylvania Capital-Star:

It’s accepted as conventional wisdom in civil liberties advocacy to avoid legal terms when communicating with people who aren’t lawyers. Bogging people down with phrases like consent decree, pro bono, and Title 18 is a great way to lose the interest of your audience.

And yet the phrase “due process” is one that resonates. Decades of courtroom dramas in television and film have apparently convinced Americans that due process is something we really should care about.

The simplest definition of due process is this: When the government intends to deprive a person of their liberty – be it by detaining the person or seizing their property or even ending their life by execution – the person has a right to a process in which the burden is on the government to show why such drastic action is necessary.

Unfortunately, the aspiration of due process doesn’t always match the reality that plays out in the legislature and in courts around the commonwealth.

Legislation currently before the state Senate is a prime example. Known as Marsy’s Law, the bill is an amendment to the Pennsylvania Constitution to guarantee certain rights for people who are victims of crimes and for people who allege that they are victims of crimes.

You may wonder why the distinction. Our criminal justice system presumes people are innocent until proven guilty. It is the government’s burden to prove that a crime occurred and that the accused is guilty of committing that crime.

But Marsy’s Law, which will be on the ballot in the general election in November if it is passed by the Senate, establishes constitutional rights for victims and alleged victims even before an accused person has been convicted, thereby putting those rights on a constitutional collision course.

For example, Marsy’s Law gives an alleged victim the right to be notified of pretrial hearings. The person who is accused has a preliminary arraignment hearing shortly after arrest, at which point a court considers whether or not to assign cash bail or detain that person.

What will a court do when the accused person is detained but the alleged victim has not been notified of the hearing? Whose rights will prevail?

If Marsy’s Law passes, the Pennsylvania Constitution will legally recognize people as victims even before the accused has been proven guilty, effectively undermining a lynchpin of our system – the presumption of innocence.

The assignment of cash bail is a well-known but often opaque process in the criminal justice system in Pennsylvania, and it is a proceeding that is already plagued by a lack of due process for people who are accused.

Over the last two years, volunteers and staff from the ACLU of Pennsylvania observed more than 2,000 bail hearings in Philadelphia, and what we observed was astonishing.

In contradiction to the court rules that judges are supposed to follow, arraignment courts in Philadelphia consistently assigned cash bail to people who could not afford it, effectively criminalizing poverty.

People accused but not convicted were assigned cash bail amounts of thousands and tens of thousands and even hundreds of thousands of dollars with no consideration for the fact that many of them were unemployed, living on public assistance, or even homeless.

The people we observed in these courts were incarcerated because they were poor, not because the court found that they posed a threat to public safety or a flight risk.

That’s why we filed a lawsuit against the Philadelphia court system to force the judges to comply with the state Supreme Court’s Rules of Criminal Procedure. We have no doubt that the excessive and unfair assignment of cash bail is not isolated to Philadelphia.

Due process is a high-minded ideal and one we should aspire towards. But public officials in the General Assembly and in the courts in Pennsylvania sometimes fail to live up to that most basic American value.

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