Mueller to testify before congressional committees

Robert Mueller agreed Tuesday to testify before the House Judiciary Committee and House Intelligence Committee in an open session, reported the Huffington Post.

The special counsel is set to appear before both committees in separate but back-to-back hearings on Wednesday, July 17, according to Reps. Jerry Nadler (D-N.Y.) and Adam Schiff (D-Calif.), who chair the judiciary and intelligence committees, respectively.

“Americans have demanded to hear directly from the Special Counsel so they can understand what he and his team examined, uncovered, and determined about Russia’s attack on our democracy, the Trump campaign’s acceptance and use of that help, and President Trump and his associates’ obstruction of the investigation into that attack,” Nadler and Schiff said in a joint statement. “We look forward to hearing his testimony, as do all Americans.”

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PA Legislature to review probation and parole

A bipartisan effort in the state Senate to reform Pennsylvania’s probation and parole laws will get some new insight next week from more than a dozen experts, reports the Pennsylvania Capital-Star.

On Tuesday and Wednesday, the Senate Judiciary Committee, chaired by Sen. Lisa Baker, R-Luzerne, will hold a public hearing on Pennsylvania’s parole and probation systems, which supervise offenders and newly released prisoners living in their communities.

The committee will hear from more than a dozen stakeholders in the probation and parole debate, including county district attorneys, criminal defense lawyers, and advocacy groups like the American Civil Liberties Union, and the Reform Alliance, which is chaired by Philadelphia rapper and probation and parole reform advocate Meek Mill.

Representatives from state Department of Corrections, the Office of the Victim Advocate, and the Sentencing Commission will also offer testimony.

“What you’ll see are people on all different sides of the issue,” said Mike Cortez, a top aide to Baker and the Judiciary Committee.

Cortez acknowledged it’s an unusual time to devote so much attention to a single policy matter, given that leaders in the House and Senate are scrambling to finish Pennsylvania’s 2019-20 budget by the end of June.

But he also said the Judiciary Committee is eager to hear solutions to fix Pennsylvania’s expensive and punitive supervision programs.

“It’s incredibly important,” Cortez said. “The hearing will be a sounding board to figure out what we can do, what we can’t do, and if there are ways we can move bills forward.”

Probation and parole laws are meant to cut costs and reduce prison populations. But a newly released report suggests the opposite is true in many states.

Pennsylvania spent $100 million to arrest and incarcerate people who committed technical violations of parole — infractions like missing a meeting with a probation officer or failing a drug test — according to a report from the Council on State Governments, a non-partisan public policy research institute.

The state spends an additional $200 million incarcerating people who commit new crimes while on probation or parole.

As a result, more than half of the people sent to prison in Pennsylvania are brought in because of a technical violation of parole. Some may not stay for long, but on a given day, 7,000 of the state’s inmates are incarcerated for parole violations.

The high social and economic costs of probation and parole have put the programs in the crosshairs of criminal justice reformers in the state Senate, which recently passed a package of bills aimed at cutting corrections costs and reinvesting savings in public safety initiatives.

A comprehensive probation and parole reform bill could be next on their agenda, Cortez said.

The Judiciary Committee will also discuss a bill from Sens. Camera Bartolotta, R-Washington , and Sen. Anthony Williams, D-Philadelphia, that would minimize technical violations and cap probation terms.

Pennsylvania is one of only eight states that puts no limit on how long someone can serve probation.

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Supreme Court awards new trial to Mississippi.man tried six times

The Supreme Court reversed the most recent conviction of Curtis Flowers, a black Mississippi man who has been tried an extraordinary six times for a quadruple murder in 1996, finding that a zealous prosecutor once again had improperly kept African Americans off the jury, the Washington Post reports.

The case was decided on a 7-to-2 vote, with Justice Brett Kavanaugh writing the opinion. He said it broke no new legal ground, but reinforced the court’s rulings about when a prosecutor’s bias eliminated a potential juror. Justices Clarence Thomas and Neil Gorsuch dissented, according to The Crime Report.

Six times, District Attorney Doug Evans, who is white, has attempted to convict Flowers, who is black, in what the Post calls “a prosecutorial pursuit that may be without parallel.” Flowers was charged with executing four people inside Tardy Furniture Store in the small town of Winona, Ms.

Two trials, the only ones with more than one African American on the panel, resulted in hung juries. Three convictions were overturned by the Mississippi Supreme Court for prosecutorial misconduct and improper maneuvering by Evans to keep blacks off the jury.

The state said Evans had offered race-neutral reasons in the most recent trial, in 2010, when the prosecutor struck five of six black potential jurors.

The Supreme Court was not considering the evidence against Flowers, but looking at Evans’s prosecutorial tactics.

In his dissent, Thomas said the court did not dispute Flowers was convicted by an impartial jury.

“Today’s decision distorts the record of this case, eviscerates our standard of review, and vacates four murder convictions because the state struck a juror who would have been stricken by any competent attorney,” he wrote. He added: “If the court’s opinion today has a redeeming quality, it is this: The state is perfectly free to convict Curtis Flowers again.”

Prosecutors and defense attorneys may use what are known as peremptory challenges. They can strike potential jurors they simply don’t want on the jury, and generally those choices cannot be second-guessed.

In a 1986 case, Batson v. Kentucky, the Supreme Court said the challenges could not be used to strike a potential juror because of his or her race. Gender was later added as a forbidden purpose.

In Friday’s ruling, Kavanaugh said that the effect of the high court decision was to “simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.”

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Court clarifies SOL for prosecutorial fabrication

A six-justice majority held Thursday in McDonough v. Smith that the three-year statute of limitations on a constitutional claim under 42 U.S.C. § 1983 alleging that a prosecutor fabricated evidence in a prosecution begins to run when that prosecution terminates in favor of the criminal defendant/Section 1983 plaintiff. Under that standard, the claim of the petitioner Edward McDonough, brought less than three years following his acquittal for election-related fraud, was timely, reported the SCOTUSBlog.

Respondent Youel Smith prosecuted McDonough, a former election official, for fraud arising from a primary election; the prosecution was initiated and continued on allegedly fabricated evidence, fabricated affidavits, false testimony and faulty DNA analysis. McDonough was indicted and tried twice, the first trial ending in a mistrial and the second ending in an acquittal. Less than three years after the acquittal, McDonough filed an action in federal district court alleging malicious prosecution and fabrication of evidence before the grand jury and at the two trials, in violation of the Fourth, Fifth, Sixth and 14th Amendments. The U.S. Court of Appeals for the 2nd Circuit dismissed the fabrication-of-evidence claim as untimely, because the statute of limitations began to run when McDonough became aware of the use of fabricated evidence, which occurred well before his acquittal and thus more than three years before he filed the federal civil action.

Justice Sonia Sotomayor wrote for a majority of Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Brett Kavanaugh, reversing the 2nd Circuit.

Although the limitations period presumptively runs from the point at which the plaintiff has a complete and present cause of action, some claims may not realistically be brought while the violation is ongoing, allowing for a later accrual date. The majority began by identifying the specific constitutional right alleged to have been infringed, which was problematic because McDonough did not identify a particular constitutional provision or right. But the 2nd Circuit treated the claim as alleging a violation of procedural due process — the right not to be deprived of liberty (in pretrial restrictions on his travel and movement) on the basis of fabricated evidence. The majority assumed, without deciding, that this articulation of the right was sound and considered the limitations question on that basis; it left for another day questions about other constitutional rights that might be violated by a prosecutor’s fabricating evidence independent of any loss of liberty, such as harm to reputation or the substantive due process right not to be subject to conduct that “shocks the conscience.”

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GateHouse: The Dual Sovereignty Doctrine lives on

Matthew T. Mangino

GateHouse Media

June 21, 2019

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits anyone from being prosecuted twice for substantially the same crime.

If Aaron Burr, Thomas Jefferson’s vice president, were found not guilty of discharging a firearm when he shot Alexander Hamilton, he could not be tried a second time by the federal government for discharging the firearm. However, if he was found not guilty of discharging a firearm and was later charged with Hamilton’s murder, the second prosecution would not be barred because murder is not substantially the same crime as discharging a firearm.

As with all of the first 10 Amendments to the U.S. Constitution, the Double Jeopardy Clause originally applied only to the federal government.

The Double Jeopardy Clause clearly established that the Founding Fathers viewed the prohibition of successive prosecutions as a fundamental right of individual liberty and an important safeguard against government harassment and overreach.

Double Jeopardy is not unique to American jurisprudence. According to Sir William Blackstone’s Commentaries on the Laws of England, it was a “universal maxim of the common law of England, that no man is to be brought into jeopardy more than once of the same offence.”

However, in the mid-19th century the U.S. Supreme Court carved-out an exception to the Double Jeopardy Clause, known as the “dual sovereignty doctrine.” Three decisions by the Supreme Court between 1847 and 1852 established the framework for the doctrine.

The Court asserted that each citizen owes “allegiance to two sovereigns, (the federal government and the state government) and may be liable to punishment for an infraction of the laws of either.” As a result, the long standing doctrine allows a state to prosecute a defendant under state law even if the federal government has prosecuted him or her for the same conduct under federal law.

Think of it this way. Burr is charged with discharging a firearm in New Jersey by the federal government. The Feds try him and he is found not guilty. The dual sovereignty doctrine allows Burr to be tried again by the state of New Jersey for discharging the firearm.

This week the U.S. Supreme Court affirmed the 170-year-old doctrine. In 2015, Terance Gamble was pulled over by an Alabama police officer for a broken tail light. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm.

Gamble was prosecuted for illegal possession of a firearm, and he served one year in state prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm for the same incident. Gamble asked the U.S. District Court to dismiss his federal indictment for violating double jeopardy.

The District Court ruled that the dual sovereignty exception to the Double Jeopardy Clause permitted a second prosecution for the same offense by a different “sovereign.” The U.S. Court of Appeals for the 11th Circuit agreed and the Supreme Court took up the case last fall.

“We have long held that a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign,” wrote Justice Samuel Alito Jr. for the 7-2 majority. “We see no reason to abandon the sovereign-specific reading of the phrase ‘same offence,’ from which the dual sovereignty rule immediately follows.”

In a surprise pairing, Justices Ruth Bader Ginsburg and Neil Gorsuch wrote separately in dissent.

In splitting from his conservative colleagues Gorsuch wrote, “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy.”

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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Death penalty milestone: 1,500th execution during modern era

The 10th Execution of 2019

Marion Wilson was executed in Georgia on June 20, 2019 making him the 1,500 person executed in the United States since the death penalty was reinstated in 1976, reported Vox.

Wilson was convicted in 1997 for committing a murder on the night of March 28, 1996, according to the Georgia Office of the Attorney General. Wilson, who was 18 at the time, and Robert Earl Butts, a fellow gang member, approached Donovan Corey Parks, an off-duty corrections officer, in a Walmart store. They asked Parks for a ride, and witnesses saw the three men get in Parks’s car together. Shortly after, Parks was found face-down, dead on a residential street.

Wilson was indicted for multiple counts — malice murder, felony murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime and possession of a sawed-off shotgun — and was sentenced to death on November 7, 1997. (Butts, who was also convicted of murder, was executed last year.)

Wilson appealed multiple times — unsuccessfully. In a last-minute attempt to dodge his execution, Wilson petitioned to have his sentence commuted to life without parole, arguing that he did not actually pull the trigger and the prosecution exaggerated his juvenile record and gang affiliation in order to secure a death penalty.

The board denied his petition Thursday. Wilson died by lethal injection at Georgia Diagnostic and Classification Prison in Jackson.

Wilson is the second person in the state to have been executed despite not committing the killing — the first being Kelly Gissendaner, who was convicted of planning and covering up her husband’s murder, according to the Death Penalty Information Center.

Georgia especially is tightly intertwined with the history of the death penalty: A lawsuit over Georgia’s use of capital punishment in 1972 led to a moratorium on the death penalty in the United States. Four years later, the Supreme Court upheld the death sentence for another Georgia convict in Gregg v. Georgia, leading to its reinstatement.

Since then, Georgia has executed more people than all but five states, and the South has carried out the vast majority of executions: 1,227 of 1500, including Wilson’s, according to the Death Penalty Information Center.

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Mangino on Law & Crime Network

Watch my appearance on the Law & Crime Network to discuss the trial of Christopher Vasata in Florida.  To watch the segment CLICK HERE