Friday, January 19, 2018

SCOTUS hears case about unsuccessful defense strategy in capital case

The U.S. Supreme Court recently heard arguments in McCoy v. Louisiana a capital case, which asks the court whether it is constitutional for defense counsel to concede an accused's guilt over the accused's express objection, reported Jurist. The case arose after McCoy's defense attorney pleaded guilty, despite McCoy's express objection, because he believed it was his ethical duty to save his client's life and conceding guilt would do so. The attorney's strategy failed, however, and McCoy was sentenced to death.
McCoy argues that he has a constitutional right to make certain decisions in his defense, and pleading guilty or not guilt is one of those. Louisiana agrees that a defendant has the right to make some basic decisions, but that conceding guilt to a jury is not one of them.
During the argument, Justice Kagan reframed the issue, stating:
[T]his lawyer was in a terrible position because this lawyer wants to defeat the death penalty. And he has a client who says: That's not my goal here. But the question is when that happens, does the lawyer have to step back and say: You know what? That's not his goal. His goal is to avoid admitting that he killed his family members.
The court's opinion will likely depend on its interpretation of the Sixth Amendment.
To read more CLICK HERE

Thursday, January 18, 2018

Wolfe's emergency declaration could have impact on guns

Pennsylvania Gov. Tom Wolf declared the heroin and opioid epidemic a statewide disaster emergency on Tuesday but in “the process enacted a statute by the PA General Assembly years ago,” said Joshua Prince, a lawyer at The Prince Law Offices in Pennsylvania, explained on The Rich Zeoli Show on 1210AM WPHT.
“It is automatic when a governor issues a proclamation of emergency, this section of the Law 6107 applies, where it prohibits anyone from carrying a firearm on any public streets or any public property during that emergency,” he said.
On whether Gov. Wolf could choose not to invoke the statute, Prince said,”This section of the code (6107) does not have any discretionary aspect to it; it automatically applies as soon as there is any proclamation of emergency.
“I don’t believe Gov. Wolf knew that by issuing this proclamation it would trigger this prohibition. He has been surprised by the amount of people calling his office who are frustrated and concerned about this issue. It seems as though that they were caught completely off guard by it.”
To read more CLICK HERE

Wednesday, January 17, 2018

Robert F. Kennedy laments King's murder and the 'mindless menace of violence'

Kerry Kennedy  the daughter of former Sen. Robert F. Kennedy, who was shot to death in June 1968, two months after Rev. Martin Luther King's assassination wrote in the Cleveland Plain Dealer this week:

The front page of the April 5, 1968 Plain Dealer after Martin Luther King Jr. was assassinated reports Sen. Robert F. Kennedy would eulogize King in Cleveland.
Robert F. Kennedy minced no words in Cleveland: "There is another kind of violence, slower but just as deadly, destructive as the shot or the bomb in the night," my father said. "This is the violence of institutions - indifference, inaction, and decay. This is the violence that afflicts the poor, that poisons relations between men because their skin has different colors. This is a slow destruction of a child by hunger, and schools without books, and homes without heat in the winter. This is the breaking of a man's spirit by denying him the chance to stand as a father and as a man amongst other men."
My father's "Mindless Menace of Violence" speech in Cleveland laid responsibility for reform at the feet of all Americans. It called not only for a rethinking of state policy, but also for a moral "cleansing" to remove the "sickness" of racism and prejudice "from our souls."
Nearly 50 years later, Robert F. Kennedy's words remain a powerful summation of what ails our society.
According to the Bureau of Justice Statistics, more than 187,000 people were incarcerated in state and federal prisons when King visited Ohio in 1968. Fifty years later, more than 2 million people are incarcerated on any given day in the United States. Disproportionately those of color, including children, they sit in jail cells awaiting trial - many simply because they can't afford bail or a simple fine.
To read more CLICK HERE

Tuesday, January 16, 2018

NY Gov. Cuomo writes about bail reform in the New York Times

Here is an excerpt from New York Gov. Andrew Cuomo's op-ed in the New  York Times:

The fundamental tenet of criminal law in the United States is that all those accused of a crime in this country are presumed innocent unless proved guilty beyond a reasonable doubt. That fundamental principle is not limited to American law; it was also part of Roman law, Islamic law and English common law. This bedrock safeguard has been ratified on more than one occasion by the Supreme Court and is codified in the United Nations Universal Declaration of Human Rights.
And yet, despite the centrality of this protection, in New York City jails, where 86 percent of the population is black or Hispanic, 75 percent of inmates have not been convicted of a crime. They are simply incarcerated awaiting trial.
A similar story exists in jails across the state, where 60 percent of the incarcerated are being detained pretrial.
How is this possible? How is it that we have a system in which punishment is imposed before one is found guilty?
It begins with the inadequacies of our bail system.
Most people who are arrested in New York are released on their own recognizance. But others, including many who are charged with nonviolent crimes, are required to obtain bail to avoid pretrial detention. The problem is that many people lack the cash to make bail.
s a result, our jails are filled with people who have yet to be proved guilty of any crime, and the system today has devolved into one with two tiers: If you can make bail, you are set free; if you are too poor to make bail, you are punished.
This would be shameful enough if the interval between the bail proceeding and trial were a short one. Instead, the length of time between arraignment and trial can stretch into months and even years. The Sixth Amendment of the Constitution guarantees defendants a “speedy” trial, but no one can look at the operations of our court system and conclude that speediness is anyone’s priority.
Take the tragic case of Kalief Browder, a 16-year-old African-American with no criminal record who was arrested in 2010 for allegedly stealing a backpack and spent three years at Rikers Island waiting for his day in court. Ultimately charges were dismissed, but the damage was done; his abuse while jailed was so traumatic that Mr. Browder determined taking his life was the only way to stop his continuing pain.
One such incident is intolerable, and it opened our eyes to the urgent need for real reform because we simply cannot risk another. A criminal justice system that ignores its cornerstone principle to the detriment of anyone — whether they are white, black, Latino, rich or poor — delegitimizes it. And we cannot allow this to persist.
This year, I am sending a bill to the State Legislature that will close the gap between what our criminal justice system says and what it does.
The bill will reform our bail system so that anyone facing misdemeanor or nonviolent felony charges should be released without bail. Those who pose a current danger to a person or persons or pose a risk of flight can still be held in detention, with due process, but no longer will people go to jail for the crime of being poor.
To read more CLICK HERE

Monday, January 15, 2018

Remembering Martin Luther King, Jr.

"The hottest place in Hell is reserved for those who remain neutral in times of great moral conflict."

 -Martin Luther King, Jr. 

Massachusetts U.S. Attorney warns legal marijuana sellers

The new U.S. attorney for Massachusetts appeared to indicate that legal marijuana sellers in the state could face federal prosecution, reported the ABA Journal. 
Andrew E. Lelling’s statement follows Attorney General Jeff Sessions’ recent decision giving U.S. attorneys discretion on whether they want to enforce federal laws that prohibit the use and sales of cannabis. Massachusetts voters approved the legalization of marijuana in 2016, and stores were expected to open in July, the Boston Globe reports.
“I cannot … provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution,” Lelling tells the Globe.
A former assistant U.S. attorney who handled complex fraud cases, the Trump administration appointed him as the U.S. attorney for Massachusetts in 2017, and he received U.S. Senate confirmation Dec. 15, according to
Last week, Lelling said in a statement that his office would “aggressively investigate and prosecute bulk cultivation and trafficking cases, as well as individuals who use the federal banking system illegally.” He did not specify if he would prosecute marijuana businesses or those who consume the drug, reported.
“I must proceed on a case-by-case basis, assessing each matter according to those principles and deciding whether to use limited federal resources to pursue it,” Lelling said last week.
In a second statement on Monday, Lelling noted “this is a straightforward rule of law issue” and that Congress has “unambiguously made it a federal crime to cultivate, distribute and/or possess marijuana.”
Municipalities in the state have been preparing for recreational marijuana sales and the federal government’s recent position is confusing, Geoff Beckwith, executive director of the Massachusetts Municipal Association, told the Globe.
“This is a knuckleball late in the process,” he said. “It’s a disruptive intrusion by the federal government into the activities of state and local governments, who have been working on this structure and implementing the will of the voters.”
Lelling’s stance seems more aggressive than that of other U.S. attorneys, the Globe noted, and came about shortly after sponsors of the 2016 marijuana legislation asked what his response would be to Sessions’ decision. In Colorado, where marijuana is also legal for recreational use, U.S. Attorney Bob Troyer issued a statement on Jan. 4 saying he didn’t plan to change his office’s approach to marijuana prosecution decisions.
To read more CLICK HERE

Sunday, January 14, 2018

New York's civil commitment statute for sex offenders under scrutiny

Under New York's decade-old Sex Offender Management and Treatment Act, convicted sex offenders can be kept in secure psychiatric hospitals indefinitely after their prison terms expire, reported the Albany Times-Union. If an offender is found to have a mental abnormality that makes the person likely to commit another sex crime, the state can — after a court hearing — order the offender committed as a patient in a secure psychiatric hospital. (There are currently no women in civil confinement.)
The system has drawn a number of legal challenges in recent years, and some of those who are committed have said they aren't receiving the kind of treatment that was contemplated when the law was passed 10 years ago. They characterize their confinements as little more than extensions of prison terms, albeit in a hospital rather than a correctional facility.
In a series of interviews with the Times Union in recent months, numerous men who are being held at the Central New York Psychiatric Center after having served prison terms for crimes ranging from sexual abuse to rape said they are receiving little meaningful treatment. They said that sexual activity often goes unpunished, that there is access to pornography, and that mental health sessions often devolve into debates about who controls the television.
"These so-called social workers who run these groups are not psychologists," said Enrique Torres, who was first convicted at age 14 when he raped a 4-year-old girl who his mother was babysitting. "Real psychologists are not participating in these programs."
Torres said that he believes his abuse of children stemmed from the fact he was repeatedly sexually abused as a child.
"I thought this was a normal thing," Torres said. "I'm not saying that treatment doesn't work — I'm saying that this place doesn't provide treatment."
Torres' case is unique. After he served a prison term for a second conviction for sexual abuse, he was confined to a mental health facility. A state Supreme Court justice reviewed his case and ruled the state's confinement program was unconstitutional. But the case, State of New York v. Enrique T., was overturned by an appeals court that rejected the argument that the "statute is unconstitutional as applied to him and those sex offenders who may ultimately be approved for civil management under strict and intensive supervision and treatment, a less restrictive alternative to confinement."
But Torres and others being held indefinitely said they are effectively locked up in a prison-like setting. Torres said that he was living in the community following his second release from prison without re-offending and was undergoing voluntary mental health counseling that he said was working.
"I understand nobody wants to be the advocate for the sex offenders," he said. "It's a really disgusting situation we brought upon ourselves. But 17 years ago I committed that offense. I've been in the community. I didn't commit another sex offense."
In general, the process for confining an offender to a mental facility begins with a state-funded psychiatrist or psychologist examining the person for a few hours. If the psychologist determines the person has a mental abnormality that makes them likely to re-offend, the state Attorney General's office files court proceedings to have them confined.
The Justice Department attorney recently interviewed another offender who is confined with Torres at the state's Marcy psychiatric hospital, where multiple patients have filed civil rights lawsuits trying to unravel the confinement program.
"They called me up and we spoke for about two and a half hours," Charlie Gerena said of a conversation he had with the Justice Department official, Julie Abbate, in November.
Gerena said overcrowding in the facility was one of the topics they discussed.
"We have people in side rooms," he said, explaining that offenders are in rooms that used to be reserved as "time-out" spaces where people could get away from others and have some quiet time by themselves.
To read more CLICK HERE