GateHouse: Barr’s confirmation hearing ‘almost’ perfect

Matthew T. Mangino

GateHouse Media

January 19, 2019

Attorney General nominee William Barr has been on the hot seat before. He successfully navigated the confirmation process when his name was put forth by President George H.W. Bush in 1991. He served about two years as attorney general.

This time is different. He has been nominated for a second stint as attorney general by a president who is embroiled in an investigation that strikes at the heart of his presidency. A special counsel is looking into whether the Russian government meddled in the 2016 election with the aid and assistance of the Trump campaign.

Robert Mueller is the special counsel and President Trump has maligned him at every turn. He has tweeted endlessly that Mueller’s investigation is a “witch hunt” and that the alleged collusion with the Russians is a hoax.

He fired Jeff Sessions as attorney general essentially for letting the investigation continue by recusing himself from overseeing the Mueller investigation. The Deputy AG who has been overseeing the investigation is leaving office. William Barr, the nominee, has been highly critical of the special counsel’s investigation.

The showdown this week in a senate hearing room was supposed to be spectacular. It was not. In fact, if you were a senator and you were worried that the new attorney general would sack the special counsel and deep six the investigation - your fears were allayed.

Barr was perfect under the bright lights of a controversial senate confirmation - maybe too perfect.

Barr said everything right. He would refuse an order by President Trump to fire Mueller without good cause. Barr told the members of the Senate Judiciary Committee that he would remain independent of political pressure if confirmed. “I am not going to do anything that I think is wrong, and I will not be bullied into doing anything I think is wrong,” Barr said.

He acknowledged a warm relationship with Mueller, and he said he didn’t think the Mueller investigation was a “witch hunt.”

At the conclusion of the investigation, with the full support of the presumptive attorney general, Mueller is going to present a report to the attorney general.

During his testimony, Barr said he thought he would not be allowed to release a summary report prepared by Mueller with regard to the special counsel’s decision to prosecute or not prosecute. The Justice Department’s regulations on special counsels dictate that Mueller can give his report only to the attorney general, who decides what will become public.

Listen closely senators, Barr said he interprets that as giving him the power to write his own version for public consumption. According to Bloomberg, Barr said he may write the version of Mueller’s final report that would go to Congress and be made public.

“There are two different reports,” he said. “Under the current regulations, the special counsel report is confidential. The report that goes public would be a report by the attorney general.”

“I will commit to providing as much information as I can consistent with the regulations,” Barr said.

William Barr may support the investigation being conducted by his friend and former colleague Robert Mueller. He has vowed not to interfere without just cause and he is clear that he does not believe that Mueller would be involved in a “witch hunt” - but the American public may never get the full story.

Trump’s first attorney general fell from grace principally because he recused himself from overseeing - and presumably throttling - Mueller’s investigation. In his place the president wants a guy who says “Mueller is an honorable man and I won’t interfere.” A rigorous investigation - unabated by the powers that be - is of little consequence if the full contents are never revealed to 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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Mangino discusses McStay family murder trial on Law and Crime Network

Watch my segment with Jesse Weber discussing the McStay family murder trial on Law and Crime Network.

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Judge wrong to dismiss a gun indictment after two hung juries

A Pittsburgh federal judge was wrong to dismiss an illegal gun indictment against a Hill District man after two juries couldn't reach a verdict, an appellate court has ruled in a case of first impression, reported the Pittsburgh Post-Gazette.

The 3rd U.S. Circuit Court of Appeals reversed the March 2017 decision by U.S. District Judge Cathy Bissoon, clearing the way for a possible third trial for Raymont Wright.

Wright, a convicted felon in his mid-40s, had been under indictment since December 2014 on a charge of carrying an illegal gun following a chase and crash near the former Civic Arena in July of that year.

Police said he had a gun after the crash but he suggested they planted it.

He went to trial twice within 10 months and both times juries couldn't come up with a verdict.

After the second mistrial, the U.S. attorney's office wanted to try again but the judge said no, invoking her powers of "inherent authority" as a federal judge.

She dismissed the indictment with prejudice, meaning it can't be filed again, and said she found that Wright's "interest in finality outweighs the government's interest in continuing its prosecution."

She also noted in her opinion, however, that the 3rd Circuit was sure to look at her decision carefully.

It's the first time the issue of a judge's authority to dismiss charges after multiple mistrials has come up in the 3rd Circuit.

Two of three circuit judges, Theodore McKee and Patty Shwartz, said Judge Bissoon abused her inherent authority because there is no evidence of government misconduct.

A third judge, Richard Nygaard, disagreed and said the dismissal was "well within the boundaries" of Judge Bissoon's powers as a judge.

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CA Judge: Police can't use biometrics to unlock mobile phone

A California judge has ruled that the police can’t force people to unlock a mobile phone with their face or finger, wrote Thomas Brewster of Forbes. The ruling goes further to protect people’s private lives from government searches than any before and is being hailed as a potentially landmark decision.

Previously, U.S. judges had ruled that police were allowed to force unlock devices like Apple’s iPhone with biometrics, such as fingerprints, faces or irises. That was despite the fact feds weren’t permitted to force a suspect to divulge a passcode. But according to a ruling uncovered byForbes, all logins are equal.

The order came from the U.S. District Court for the Northern District of California in the denial of a search warrant for an unspecified property in Oakland. The warrant was filed as part of an investigation into a Facebook extortion crime, in which a victim was asked to pay up or have an “embarassing” video of them publicly released. The cops had some suspects in mind and wanted to raid their property. In doing so, the feds also wanted to open up any phone on the premises via facial recognition, a fingerprint or an iris.

While the judge agreed that investigators had shown probable cause to search the property, they didn’t have the right to open all devices inside by forcing unlocks with biometric features.

On the one hand, magistrate judge Kandis Westmore ruled the request was “overbroad” as it was “neither limited to a particular person nor a particular device.”

But in a more significant part of the ruling, Judge Westmore declared that the government did not have the right, even with a warrant, to force suspects to incriminate themselves by unlocking their devices with their biological features. Previously, courts had decided biometric features, unlike passcodes, were not “testimonial.” That was because a suspect would have to willingly and verbally give up a passcode, which is not the case with biometrics. A password was therefore deemed testimony, but body parts were not, and so not granted Fifth Amendment protections against self-incrimination.

That created a paradox: How could a passcode be treated differently to a finger or face, when any of the three could be used to unlock a device and expose a user’s private life?

And that’s just what Westmore focused on in her ruling. Declaring that “technology is outpacing the law,” the judge wrote that fingerprints and face scans were not the same as “physical evidence” when considered in a context where those body features would be used to unlock a phone.

“If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,” the judge wrote.

“The undersigned finds that a biometric feature is analogous to the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.”

There were other ways the government could get access to relevant data in the Facebook extortion case “that do not trample on the Fifth Amendment,” Westmore added. They could, for instance, ask Facebook to provide Messenger communications, she suggested. 

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AG nominee Barr supports special counsel Robert Mueller

"I don't believe Mr. Mueller to be involved in a witch hunt," former attorney general William Barr told the Senate Judiciary Committee during his confirmation hearing as President Trump’s nominee for a second stint as attorney general, reported CNN. 

Relating what he told Trump about Special Counsel Robert Mueller when the latter was appointed as special counsel, Barr recounted he told the President that the former FBI director is "is a straight shooter and should be treated as such." 

Asked by Delaware Sen. Chris Coons (D) whether he would reject an order from Trump to fire Mueller without what he considered good cause, Barr said he would do so -- and resign his post. (He also said it was "unimaginable" to him that Mueller would do something that would trigger his legal removal.) He made clear he would not allow any editing by the President of the final report put forward by the special counsel.

Barr repeatedly referred to Mueller as "Bob" -- a sign of their long friendship. Barr said he told Trump in June 2017 that "I knew Bob Mueller and how the Barrs and Muellers were good friends and would be good friends when this is all over, and so forth."

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Pennsylvania prison population saw historic drop in 2018

Pennsylvania’s state prison population saw its biggest drop ever in 2018, the fifth consecutive year the number of people behind bars in the state prison system has declined, reported the New Castle News.

The number of people incarcerated in state prison dropped to 47,370 inmates at the end of 2018 – a 1,068 decline from the prior year when there were 48,438 people behind bars in the state Department of Corrections.

The state’s inmate population is down from 51,512 five years ago, corrections data show.

The number of people behind bars has dropped each year Gov. Tom Wolf has been in office.

“We need to focus on the work to make our criminal justice system fairer, more equitable and more focused on rehabilitation,” Wolf said in a statement calling for action on criminal justice reform earlier this month. “I am committed to continuing this important work in my second term,” he said.

Wolf has made criminal justice reform a signature issue. Wolf joined legal groups in rolling out a new program intended to help people with old convictions to get their records sealed to make it easier to get to jobs or rent property.

He said it’s just one step and called on the General Assembly to act on additional reforms.

That includes recommendations from the state’s Justice Reinvestment Initiative aimed at addressing the high cost of incarceration, strengthening county probation programs and fixing sentencing guidelines.

He also called for reforming the post-trial criminal justice system to focus on rehabilitation and preparing inmates to reenter society to reduce the risk of recidivism.

The conservative think tank, the Commonwealth Foundation, on Thursday said that the drop began two years before Wolf took office in 2014.

The state’s first version of the Justice Reinvestment Initiative was signed into law in 2012 by Republican Gov. Tom Corbett.

The drop last year was the biggest yet, according to the Commonwealth Foundation.

“This historic reduction in our prison population should be celebrated,” said Nathan Benefield, vice president and COO for the Commonwealth Foundation. “Seven years ago, Pennsylvania enacted a bipartisan corrections reform package that has proven to be an unquestionable success,” said Nathan Benefield, vice president and COO for the Commonwealth Foundation. “We are locking up fewer people while crime rates continue to decline. t’s time for lawmakers to build on this momentum and advance reforms that improve sentencing and parole.”

Like Wolf, Benefield called on the General Assembly to act on the new Justice Reinvestment Initiative reforms.

The state Senate last April unanimously approved the second round of Justice Reinvestment Initiative reforms. The bills didn’t move in the state House but state Rep. Jim Cox, R-Berks County, has already announced plans to introduce legislation including those reforms in the new legislative session.

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PLW: Term 'Perpetrator' Weighs Heavily in Drug-Using Mom-To-Be Abuse Decision

Matthew T. Mangino

The Legal Intelligencer

January 10, 2019

The Pennsylvania Supreme Court ruled that a mother who used opioids and marijuana during her pregnancy cannot commit child abuse under the Child Protective Service Act (CPSL), 23 Pa.C.S.A. 6301.

A divided Pennsylvania Supreme Court issued its opinion interpreting the CPSL on Dec. 28.

The case involved a newborn girl who spent 19 days in the hospital, being treated for drug dependence that caused severe withdrawal symptoms. Two weeks before the girl was born the mother, known as A.A.R., tested positive for opiates, marijuana and benzodiazepines.

The decision comes in the shadow of an opioid crisis in this country. The latest statistics show Pennsylvania leading the nation in fatal overdoses, with about 5,400 in 2017.

In fact, the opinion in In the Interest of L.J.B., No. J-57-2018 authored by Justice Christine Donohue acknowledged in a footnote that Gov. Tom Wolf took the unprecedented step of proclaiming the heroin and opioid epidemic a statewide disaster emergency.

According to Reuters, opioid abuse among pregnant women affected 6.5 out of every 1,000 delivery hospitalizations in 2014, up from 1.5 per 1,000 in 1999, as tracked by the U.S. Centers for Disease Control and Prevention.

In this case, A.A.R. was in jail. She was released and relapsed into drug use, before she learned she was pregnant. She sought treatment for her addiction but relapsed again.

L.J.B. was born on Jan. 27, 2017. According to Donohue’s opinion, the child immediately displayed signs of neonatal abstinence syndrome. Clinton County Children and Youth Social Services took L.J.B. into emergency protective custody after her birth, and accused A.A.R. of child abuse.

The Juvenile Court ruled that L.B.J. was a dependent pursuant to the CPSL but conducted a separate hearing to determine if A.A.R.’s drug use while pregnant was child abuse.

The Juvenile Court held that Children and Youth Services “cannot establish child abuse in this matter on the actions committed by mother while child was in fetus.”

The Superior Court reversed agreeing that the CPSL does not include abuse of a fetus or unborn child, but concluded that the “Mother’s drug use is a recent act or failure to act under 6303 (b.1) and (5) of the CPSL.”

The Supreme Court took the case as a matter of first impression.

This is not a criminal matter. Pennsylvania law already makes clear that mothers cannot be prosecuted for harming their fetuses.

Crimes against the Unborn Child Act, 18 Pa.C.S.A. 2601 makes it a crime to injure or kill an unborn child. However, the law also establishes three exceptions: it cannot be used to prosecute people who perform legal abortions, medical personnel or pregnant women for harming their own unborn children.

According to the Pittsburgh Post-Gazette, when legislators were debating the bill before it became law in 1997, opponents worried it would lead to the prosecution of pregnant women—but supporters said that could not happen because of the protection written into the law. The law has been used regularly when a pregnant woman’s unborn child is injured or killed by a third party.

“These statutes are not intended to prosecute pregnant women, as you can clearly see from the way the statute is written,” Sara Rose, staff attorney for the American Civil Liberties Union of Pennsylvania, told the Post-Gazette in 2017 when prosecutors in Butler County sought to prosecute a pregnant woman under the statute. “I don’t see, based on the plain language of the statute, how you can charge a pregnant woman.”

At issue was whether Kasey Rose Dischman could be convicted of aggravated assault of her unborn child for overdosing in June 2017 when she was 30 weeks into her pregnancy. Dischman went into cardiac arrest and her child had to be delivered prematurely.

Butler County Judge William R. Shaffer dismissed that charge after finding that, although Dischman is accused of committing a “senseless, selfish and heinous act,” the law does not allow the aggravated assault count to be applied in cases where the victim is the mother’s own unborn child.

The district attorney appealed to the Superior Court.

Superior Court Judge Carolyn H. Nichols concluded that Pennsylvania does not criminalize the prenatal acts of mothers-to-be. As a result, a pregnant woman who overdoses on illegal drugs cannot be prosecuted for assaulting her unborn child.

In A.A.R.’s appeal the definitions as set forth by the legislature in the CPSL are crucial. Unlike the Crimes Against the Unborn Child Act, 18 Pa.C.S.A.2601 as read in conjunction with the Abortion Control Act 18 Pa.C.S.A., 3220 the CPSL does not include a fetus or unborn child in its definition of “child.”

A child is defined as any person under the age of 18. The CPSL defines “child abuse” as “intentionally, knowingly or recklessly … causing bodily injury to a child through any recent act or failure to act.” A “perpetrator” of child abuse is defined as—for purposes of this case—a parent of a child, 23 Pa.C.S.A. 6306 (a) (1).

The Supreme Court zeroed in on the definition of “perpetrator.” L.J.B.’s mother contended that pursuant to the clear language of CPSL, she did not commit “child abuse” while she was pregnant because there was no “child,” and she therefore was not a “perpetrator.”

A “perpetrator” is “a person who has committed child abuse under the CPSL,” 23 Pa.C.S.A. 6303 (a). As the parties in this case agreed, the CSPL’s definition of a “child” does not include a fetus or an unborn child.

Although A.A.R. used illegal drugs while pregnant that caused bodily injury to L.J.B. she was not a perpetrator of child abuse. A.A.R. was not yet a parent and A.J. B. was not yet a child.

As a result, according to the Pennsylvania Supreme Court, a mother cannot be found to have committed child abuse against a child based on her illegal drug use while pregnant because she was not a perpetrator at the time of the drug use.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. 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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