Sunday, March 26, 2017

PLW: US Supreme Court Limits Pennsylvania's 'No-Impeachment' Rule

Matthew T. Mangino
Pennsylvania Law Weekly
March 23, 2107
An age-old Pennsylvania legal tradition—the inability to upset a jury verdict regardless of the content or subject matter of a jury's internal deliberations—has been overturned by the U.S. Supreme Court.
The decision came in the case of a Colorado man Miguel Angel Peña-Rodriguez, who found out after his 2007 conviction that a juror said he thought that Peña-Rodriguez was guilty of sexual assault because he was Mexican and that "Mexican men take whatever they want."
The decision in Peña-Rodriguez v. Colorado, Docket No. 15-606, decided March 6, involved the review—or lack thereof—of a Colorado jury verdict. The trial court acknowledged the juror's apparent bias, but refused to take any action, stating that the Colorado Rules of Evidence prohibit a juror from testifying regarding the validity of a verdict if it relates to statements made during deliberations. This is commonly referred to as the "no-impeachment" rule.
Peña-Rodriguez's case made its way to the U.S. Supreme Court. The high court found when a juror makes a clear statement indicating that he relied on racial stereotypes to convict a defendant, the Sixth Amendment requires an exception to the no-impeachment rule.
Every state has some version of the no-impeachment rule. Pennsylvania was the only state, other than Colorado, that had addressed the no-impeachment rule and declined to recognize an exception for racial bias.
In Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786 (2012), Roland William Steele was convicted of three counts of first-degree murder and sentenced to three separate death sentences.
Steele argued that his due process rights and right to a fair and impartial jury were violated by the racial prejudice of one of the jurors, his opinions about Steele's guilt, and deliberative discussions that were held prior to formal deliberation.
One juror told Steele's legal team that another juror's racial bias seeped into the jury room from the inception of the trial. The juror stated in his declaration that "early in the trial one of the other jurors commented on the race of the defendant. He also noted the race of three victims and stated that, on that basis alone, the defendant was probably guilty," adding that Steele should "fry, get the chair or be hung."
The general rule regarding post-verdict jury testimony is codified in Pennsylvania Rule of Evidence 606(b), the no-impeachment rule which states: "Upon an inquiry into the validity of a verdict ... a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions in reaching a decision upon the verdict or concerning the juror's mental processes in connection therewith, and a juror's affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."
The Pennsylvania Supreme Court held, "Despite Steele's contentions, the exception to the general no-impeachment rule is not implicated here. The exception only applies to outside influences, not statements made by the jurors themselves. ... The influence here was internal, not from outside sources. Once the verdict was entered, the jurors ... became incompetent to testify regarding any internal discussions or deliberations."
Steele's three death sentences were affirmed.
There may now be a glimmer of hope for Steele. Pennsylvania's unbending application of the no-impeachment rule has been overturned. Justice Anthony M. Kennedy wrote in Peña-Rodriguez, "A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts."
Kennedy conceded that the Supreme Court has ruled previously—when there were allegations of jurors abusing drugs or alcohol or having a pro-defendant bias—that the confidentiality of the jury process was too important to allow a judge's investigation.
In Tanner v. United States, 483 U.S. 107 (1987), the U.S. Supreme Court found that a defendant's right to a competent jury is not violated by the application of the no-impeachment rule to allegations of jurors sleeping and using drugs and alcohol during trial and deliberations.
However, the court has drawn the line at allegations of racial, religious, or other bias by jurors infringing on a defendant's constitutional right to a fair and impartial jury. "The same cannot be said about racial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice," Kennedy wrote.
"The nation must continue to make strides to overcome race-based discrimination," Kennedy continued. "The progress that has already been made underlies the court's insistence that blatant racial prejudice is antithetical to the functioning of the jury system."
Kennedy said there must be a "clear statement" that indicates a juror "relied on racial stereotypes or animus to convict a criminal defendant" before the judge could consider a defendant's claim. According to the Washington Post, Kennedy said it has not been shown to occur very often in states that already allow such inquiry.
The court did not address what procedures a court must follow when deciding a motion for a new trial based on juror testimony of racial bias or the appropriate standard for determining when such evidence is sufficient to require that the verdict be set aside.
Those matters have been left to individual states to work out. That process—leaving it up to the states—has not met with much success in modern Supreme Court jurisprudence. Namely, Atkins v.Virginia, 536 U.S. 304 (2002), where it is still unclear how states are to determine intellectual disability; and Miller v. Alabama, 567 U.S. ___ (2012), where the high court only recently clarified whether the decision was retroactive.
Whether Steele's glimmer of hope amounts to anything may now be up to the Pennsylvania legislature. •

Special to the Law Weekly 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 and follow him on Twitter @MatthewTMangino.

Saturday, March 25, 2017

GateHouse: A criminal conviction shouldn’t have a lifetime of consequences

Matthew T. Mangino
GateHouse Media
March 25, 2017
There is an often repeated maxim in the American criminal justice system relating to punishment, "He paid his debt to society." That maxim is obsolete. Why? A man or woman who has been convicted of a crime carries that debt forever — figuratively and, in many instances, literally.
In Pennsylvania, the bipartisan "Clean Slate" bill would automatically seal the record of an offender after staying crime-free for 10 years with the intent of making it easier for people convicted of nonviolent misdemeanors to find jobs and housing. The bill is the first of its kind in the nation, reported the Buck County Courier-Times.
While the bill is admirable it does not go far enough. To make a real impact on recidivism, a bill in Pennsylvania, or any other state, must include all criminal offenses, not just nonviolent offenses.
In 2009, Alfred Blumstein and Kiminori Nakamura of Carnegie Mellon University wrote in "Redemption in the Presence of Widespread Criminal Background Checks," that there comes a time after a period of crime-free behavior that an ex-offender is no more likely to commit a crime than the general population.
Their analysis was based on a statistical concept called the "hazard rate." The hazard rate is the probability, over time, that someone who has stayed crime-free will be rearrested. For a person who has been arrested in the past, the hazard rate declines the longer the former offender remains crime-free.
The study examined the hazard rate for 18-year-olds when they were arrested for a first offense of one of three crimes — robbery, burglary and aggravated assault. For robbery, the hazard rate declined to the same arrest rate for the general population of same-aged individuals at age 25.7, or 7.7 years after the robbery arrest. After that point, the probability that the former offender would commit another crime was less than the probability of other same-aged individuals in the general population.
Ten years crime-free should entitle an offender, violent or nonviolent, to sweep the slate clean. Leaving an individual's criminal record intact long after he or she remains no more of a threat than anyone else, is simply nonsense.
Easy access to criminal records has increased the stigma of crime, creating formal disabilities — disenfranchisement, housing restrictions, government entitlement ineligibility, statutory employment prohibitions and even deportation.
This is a big deal. An estimated 65 million U.S. adults have criminal records and they often confront barriers that prevent even the most qualified from securing employment, according to the National Employment Law Project. A single criminal conviction should not tarnish a life otherwise spent abiding the law.
The public appears ready to look at alternatives. According to Public Opinion Strategies, a polling company, 87 percent of voters in Philadelphia suburbs said they believe the state "should break down barriers" to help offenders get out from under their perpetual debt to society.
The actual financial debt that comes with a conviction comes in two forms, both equally devastating. First, the costs associated with fines, court costs, administration fees and supervision fees. Former offenders may be saddled with big fines, and state surcharges which may be difficult, or impossible, to pay. Those costs may be around long after a sentence is served.
Those fees begin to add up — the offender falls behind and ends up in jail for failure to pay. The offender loses her job, again, and the process starts all over — a form of indentured servitude.
Second, a criminal record makes it difficult to get a job, public assistance, college loans, public housing, professional licensing and a host of other collateral consequences of a criminal conviction. The financial consequences are obvious and failure is inevitable.
A criminal conviction shouldn't have a lifetime of consequences.
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 and follow him on Twitter @MatthewTMangino
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Friday, March 24, 2017

Arkansas official asks Rotary Club members to witness next month's 8 executions in 10 days

A shortage of required citizen witnesses to watch eight lethal injections over a 10-day period next month prompted the state prison director  to call on Rotary Club members to volunteer, reported the Arkansas Democrat-Gazette.
Citizen witnesses are there to verify that the individual executions are carried out according to law. A volunteer must be at least 21 years old, an Arkansas resident, have no felony criminal history and have no connection to the inmate or to the victim.
"The last times these were set, we actually did not have enough people volunteer," Department of Correction Director Wendy Kelley told Little Rock Rotary Club 99 members. "You seem to be a group that does not have felony backgrounds and are over 21. So if you're interested in serving in that area, in this serious role, just call my office."
The eight executions are scheduled two at a time beginning April 17 and ending April 27.
Department of Correction spokesman Solomon Graves said he does not have a current count on the number of citizen witnesses who have signed up for the role. Kelley is making informal inquiries to find more volunteers, he said.
"Depending on the response received, further recruitment may not be necessary," Graves said.
The state's death penalty law, A.C.A. 16-90-502, Section 3, requires that the prison director procure no fewer than six and no more than 12 citizen witnesses for each execution. Kelley must determine that witnesses meet the requirements and that they do not present a security risk.
To read more CLICK HERE

Thursday, March 23, 2017

DOC Sec. Wetzel: Mandatory minimums don't work

Pennsylvania Secretary of Correction John E. Wetzel and Director of Planning, Research & Statistics Dr. Brett Bucklin published the following commentary in the Harrisburg Patriot-News:
Most Pennsylvanians would agree that ensuring public safety is what they want most from the criminal justice system. 
When it comes to law and order we are all willing to pay to be safe, and we recognize that decisions about public safety must never be made based simply on balancing budgets. 
At the same time, many Pennsylvanians are uninformed about a current policy discussion underway in our criminal justice system, which is mostly going unnoticed and hides under the false guise of improving public safety. 
The debate is over mandatory minimum sentencing. 
Several mandatory minimum sentencing laws were found to be unconstitutional by the Pennsylvania Supreme Court in 2015. 
Legislation to reinstate these laws are right now being considered by the General Assembly, which might be fine if there was any evidence that mandatory minimum sentences enhanced public safety. 
But the record is clear that they don't. 
Statewide crime numbers are only available through 2015, but show that the violent crime rate in Pennsylvania remained the same in 2015, while both property and drug crime rates declined. 
Local statistics from Philadelphia and Harrisburg reveal that crime rates for major crime types dropped in these cities during 2016. 
Crime in Pennsylvania is lower now than it was in 1970, before mandatory minimums existed. 
If mandatory minimums are supposed to enhance public safety, this is not reflected in Pennsylvania's crime rates, which have continued to drop without them.
Mandatory minimum sentencing laws require courts to treat all defendants the same, regardless of the facts of the case or the person's circumstances.  
This one-size-fits-all approach does not work when it comes to healthcare or education policy, so why should we think it works in criminal justice?    
Some prosecutors argue that mandatory minimums are needed because some judges are too lenient. The fact is that judicial discretion is already structured in Pennsylvania under sentencing guidelines. 
Judges in Pennsylvania sentence within the recommended guidelines 90 percent of the time, and the seven percent of cases where judges depart below the guidelines is mostly due to a recommendation by the prosecutor. Sentencing guidelines render mandatory minimum sentences unnecessarily rigid. 
There is no good evidence that mandatory minimums do anything to make the public safer. 
Judge David Ashworth once again ordered Samuel Santiago to serve 20 to 40 years in state prison for the repeated rape and sexual assault of a girl beginning when she was 4 and continuing for nine years.
Take one purpose of sentencing, to deter future criminal behavior.  The science on deterrence is now clear that it is the swiftness and certainty of punishment that deters, not the severity. 
Mandatory minimums target the severity of punishment by unnecessarily ratcheting up sentence lengths.  For criminals who tend to be impulsive, inconsistently delivered and arbitrarily long sentences do nothing to deter future crime. 
A study by the Pennsylvania Commission on Sentencing found that the imposition of a mandatory minimum sentence was not a predictor of criminal re-offending.
Mandatory minimum sentencing wastes taxpayer dollars and diverts limited resources away from pursuing more serious offenders and supporting law enforcement. 
Estimates are that if Pennsylvania's Legislature reinstates mandatory minimums it could cost taxpayers as much as $85.5 million per year. 
For all of these reasons, a bi-partisan consensus has built around the country that mandatory minimums are ineffective and should be scaled back or eliminated. 
More than 30 states have now reconsidered mandatory minimum sentencing laws.  Conservative groups like Koch Industries, the American Legislative Exchange Council (ALEC), and the Commonwealth Foundation here in Pennsylvania, have all expressed opposition to mandatory minimums. 

Yet many in our Legislature are ignoring these realities and moving forward to quietly reinstate mandatory minimums. This puts Pennsylvania out of touch with the facts.
To read more CLICK HERE 

Wednesday, March 22, 2017

Trump budget will slash funding for domestic violence victims

President Donald Trump’s “skinny budget” blueprint  eliminates the 43-year-old Legal Services Corporation, the federal entity that provides millions for state-based legal aid operations, reported The InterceptOne-third of cases handled by LSC-affiliated groups involve women who are victims of domestic violence.
Not to mention the cut would deny millions of poor people access to the civil justice system, which would disproportionately impact women, who make up 70 percent of clients served by LSC funds. One-third of cases handled by LSC-affiliated groups involve women who are victims of domestic violence.
Trump wrote that his “aim is to meet the simple, but crucial demand of our citizens — a government that puts the needs of its own people first. When we do that we will set free the dreams of every American, and we will begin a new chapter of American greatness.” 
Cutting a program that provides for the safety of domestic violence survivors — among many others — seems an odd way to achieve greatness, according to The Intercept. Currently, 93 percent of the LSC’s $385 million federal budget goes to fund 134 nonprofit legal aid organizations operating more than 800 offices across the U.S. and its territories.
To read more CLICK HERE

Tuesday, March 21, 2017

Thiel College-Death Penalty

Thiel College-Comment Project No. 5

The neuropsychology issue raised in juvenile death penalty cases before the U.S. Supreme Court has jumped to non-death penalty cases like juvenile life without parole. Do you think brain development cases will further seep into juvenile criminal jurisprudence?  Explain your position in detail.

Man assaulted by twitter--DOJ makes arrest

A Maryland man has been arrested on a cyberstalking charge in connection with allegedly sending an epilepsy sufferer an animated Twitter message telling the victim that “you deserve a seizure,” federal officials said.
The victim has been identified as Newsweek writer Kurt Eichenwald who is a critic of President Trump. The Justice Department said that after viewing the strobe image, the victim “immediately suffered a seizure.”
Eichenwald has written for Newsweek about having epilepsy.
Cyberspace is filled with harsh exchanges. However, the allegations in this case suggest it may be one of the first in which physical harm resulted from receipt of a cybermessage.
The suspect was identified by the Justice Department as John Rayne Rivello, 29, of Salisbury, Md. 
The Twitter message told the recipient “you deserve a seizure for your post,” according to a statement from the Justice Department. The statement did not name the alleged victim.
On his Twitter feed, Eichenwald said that the FBI had arrested “the man who assaulted me using a strobe on twitter that triggered a seizure.” The Dallas police also investigated.
To read more CLICK HERE