GateHouse: Trump press conference not treason, but . . .

Matthew T. Mangino

GateHouse Media

July 20, 2018

There has been a lot of talk of treason in the aftermath of President Donald Trump’s disastrous press conference with Russian Dictator Vladimir Putin in Helsinki.

Article III, Section 3 of the United States Constitution provides, “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

The framers of the Constitution were particularly concerned with the use of treason to squelch political thought and debate. According to The Washington Post, speaking against the government, undermining political opponents, supporting harmful policies or even placing the interests of another nation ahead of those of the United States are not acts of treason under the Constitution.

Professors Paul T. Crane and Deborah Pearlstein wrote for the National Constitution Center website “the Constitution requires both concrete action and an intent to betray the nation before a citizen can be convicted of treason; expressing traitorous thoughts or intentions alone does not suffice.”

There have been few trials for treason in this country. The name most synonymous with treason in America is Benedict Arnold. He sought to undermine the efforts of the colonial army during the Revolutionary War—he fled the country before he could be charged or tried.

Aaron Burr, Thomas Jefferson’s vice-president, disgraced by killing Alexander Hamilton in a duel, sought to establish a Mexican empire which would have included annexing territories from within the United States. He was tried for treason.

Burr was found not guilty. Chief Justice John Marshall said that to prove treason, “war must actually be levied against the United States ... conspiracy (to levy war) is not treason.”

Jefferson Davis, president of the Confederacy, was indicted for treason at the end of the Civil War. The former United State Senator was never tried and spent only two years in custody.

The most famous “traitor” trial of the 20th century had nothing to do with treason. Julius and Ethel Rosenberg were prosecuted for disclosing atomic secrets to the Soviet Union. The Rosenbergs were charged with conspiracy to commit espionage, not treason.

The Espionage Act stipulates that providing military secrets to any nation–enemy or not– is an act of espionage. The highly publicized trial was replete with instances where the prosecutor alleged that the Rosenbergs were traitors and committed treason.

In 1953, in the midst of the “red scare” the Rosenbergs were executed.
This week, former CIA director John Brennan tweeted that Trump’s comments at the Helsinki news conference “rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous.″

Can Trump be considered a traitor for giving “aid and comfort” to an enemy?
First, one must determine if Russia is an enemy of the United States. An enemy is a nation or an organization with which the United States is in a declared open war. Although Russia has engaged in cyber-attacks on the nation’s political institutions, the U.S. is not at war with Russia.

Russia is an adversary whose interests are frequently at odds with those of the United States, but for purposes of treason law, according to the Washington Post, it is no different than Canada, France or Brazil.

Although President Trump’s kowtowing to a Russian dictator is embarrassing, and without precedent, it is not treason.

However, treason is not the end of the story. As special counsel Robert Mueller continues to methodically examine evidence of Russian interference in the 2016 presidential election—the President’s conduct, and that of his close political aides—before and after the election—remains under scrutiny.

— 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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PLW: Pa. Death Penalty Report Is Chock-Full of Recommendations

Matthew T. Mangino

The Legal Intelligencer

July 19, 2018

Did the commonwealth of Pennsylvania need a report, six and a half years in the making, to acknowledge that the state’s death penalty has some problems?

All one needs to know is that Pennsylvania has executed three men since the death penalty was reinstated in 1978. All three men volunteered to be executed—waiving their appeal rights. In fact, Pennsylvania has not carried out an involuntary execution since 1962. In the last 30 years, approximately 35 inmates have died while waiting for an execution date.

The state’s most recent execution occurred in 1999, when Gary Heidnik was put to death for the murders of two women he tortured in his Philadelphia home. The other two executions were in 1995. Leon Moser killed his wife and two daughters, and Keith Zettlemoyer killed a “friend” who planned to testify against Zettlemoyer at his trial for robbery.

At the end of June, the long-awaited report, “Capital Punishment in Pennsylvania,” issued by the Task Force and Advisory Committee on Capital Punishment through the Joint State Government Commission was unveiled. The report took on a sense of urgency when Gov. Tom Wolf declared a moratorium on the death penalty.

The governor could not really shut down the death penalty but he had the authority pursuant to Article IV, Section 9 of the Pennsylvania Constitution to grant reprieves and exercise that authority for any reason—or no reason at all.

Wolf’s announcement suggested that the current system of capital punishment is “error-prone, expensive and anything but infallible.” Wolf made it clear that executions would not resume until he had an opportunity to review the report.

The Task Force and Advisory Committee chose not to directly address the governor’s action or, more appropriately, his inaction. However, as a member of the advisory committee I acknowledge that the death penalty needs to be overhauled or abolished.

Senate Resolution No. 6 of 2011 charged the Task Force and Advisory Committee with addressing 17 specific issues regarding capital punishment and making recommendations for reform.

After our initial conference, the advisory committee divided into subcommittees on impact, policy and procedure.

The subcommittee on impact developed the material in the report on cost, impact on and services for family members, secondary trauma, length and conditions of confinement on death row and public opinion. The subcommittee on policy developed the material on bias and unfairness, proportionality, mental illness, penological intent and alternatives. The subcommittee on procedure developed the material on mental retardation, juries, state appeals and postconviction, clemency, innocence, counsel and lethal injection.

The advisory committee was to have completed its findings and recommendations by the end of 2013. However the collection of data prolonged the release of the report. The work of the committee was important and the painstaking collection and analysis of data was essential to making sound recommendations to the Senate. The committee chose thoroughness over expediency.

A thumbnail sketch of some of the committee’s recommendations provides some insight into the state of the death penalty in Pennsylvania.

The committee recommends that Pennsylvania enact legislation to provide for routine and systematic collection of data for proportionality reviews that can reveal unfair, arbitrary or discriminatory variability in pursuing the death penalty.

The committee proposed amending statutory aggravating and mitigating circumstances to reduce any significant difference in the crimes of those selected for the punishment of death as opposed to those who receive life in prison. Pursuant to 42 Pa.C.S.A. 9711, there are currently 18 legislatively established aggravating circumstances on the books in Pennsylvania.

The Rules of Criminal Procedure should be amended to require a judge to determine mental retardation or intellectual disability at the pretrial stage. Currently in Pennsylvania a jury determines post-trial if the defendant is intellectually disabled.

The committee suggests that pretrial determination of intellectual disability would save a significant amount of money and many days of court time because the case would not proceed as a death penalty case.

The committee also addressed mental illness and the death penalty. A recommendation proposes relief for a defendant who is not legally insane but is suffering from mental illness. The committee suggests extending a version of guilty but mentally ill as a bar to imposition of the death penalty based on a defendant’s mental disorder significantly impairing the defendant’s exercise of rational judgment or conformance to legal requirements.

The committee also acknowledged concern with jury instructions, suggesting standard jury instructions be rewritten by attorneys and judges with the assistance of linguists, social scientists and psychologists, as well as data disclosing the misunderstanding and misapplication of current jury instructions.

Pennsylvania is the only state that contributes nothing for indigent defense. All public defender services are funded locally with counties carrying the full burden of indigent defense costs. The subcommittee on procedure called for the creation of a statewide capital defender office funded by the commonwealth rather than having indigent capital defendants represented by county public defender offices.

In addition, the committee recommends that the lethal injection protocol be public rather than confidential. Although, the constitutionality of lethal injection, as with all forms of execution, has consistently been upheld by the U.S. Supreme Court, the shortage of drugs used in executions has generated an endless flow of litigation. The committee suggests the use of an appropriate and effective execution drug that executes humanely and is selected through qualified professional experts.

The report comes at a time when support for the death penalty is waning. Less than half of Americans—49 percent—favor the death penalty for people convicted of murder, according to a 2016 poll by Pew Research.

Nineteen states and the District of Columbia have abolished capital punishment. According to the New York Times, additional states—including Pennsylvania—have imposed moratoriums on executions. Not only are executions down, death sentences are down as well. There are 31 states with the death penalty. Only 14 states handed down death sentences last year, for a total of 39 across the country—less than half the number six years ago.

“The committee that issued the report was largely comprised of anti-death penalty advocates, and it appears that its findings restate the usual litany of opinions held by death penalty opponents,” said Richard Long, executive director of the Pennsylvania District Attorneys Association, in a Pittsburgh Post-Gazette article.

The response is not a surprise. When Gov. Wolf announced his de facto moratorium the Pennsylvania District Attorney’s Association response was, “He has rejected the decisions of juries that wrestled with the facts and the law before unanimously imposing the death penalty, disregarded a long line of decisions made by Pennsylvania and federal judges, ignored the will of the Legislature, and ultimately turned his back on the silenced victims of cold-blooded killers.”

The death penalty in Pennsylvania and nationwide is at a crossroad. Although about 3,000 men and women sit on death row nationwide, there have only been 83 executions carried out in the last four years. It is time for comprehensive reform that will result in carrying out executions in Pennsylvania—or, absent reform, the abolition of the death penalty.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a member of the Task Force and Advisory Committee on Capital Punishment. 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 talks about Jordan Brown decision on WFMJ-TV21

Watch my interview on WFMJ-TV21 regarding the Pennsylvania Supreme Court ruling overturning Jordan Brown's juvenile adjudication of delinquency for the 1st degree murder of Kenzie Houk an her unborn child.
To watch the interview CLICK HERE

Mangino discusses Jordan Brown decision by PA Supreme Court

Watch my interview on Pennsylvania Supreme Court ruling overturning Jordan Brown's juvenile adjudication of delinquency for the 1st degree murder of Kenzie Houk an her unborn child. 
To watch the interview CLICK HERE

Ohio executes man for Cincinnati murder 34 years ago

The 14th Execution of 2018

Ohio carried out its first execution of the year this morning, using a mixture of three drugs to execute Robert Van Hook for the 1985 murder of a Cincinnati man after the two met at a nightclub, reported WKSU and the Cincinnati Enquirer.

Van Hook broke into sobs before he was put to death July 18, 2018.

"I'm no good," he said from under the straps that held him to the lethal injection table.

He recited a Norse prayer used in a 1999 Antonio Banderas film and sang to himself before going quiet.

He gasped and wheezed briefly after the drug cocktail was injected into his veins, then died.

Van Hook's execution took place 33 years after he stabbed a man to death in a Cincinnati apartment. He nearly disemboweled the 25-year-old victim, David Self, after the two met at a Downtown Cincinnati gay bar.

Van Hook was the first killer from Hamilton County to be executed in seven years.

Along with prison personnel, 10 people and four members of the press traveled to Lucasville to witness the execution.

It was silent in the witness rooms when Van Hook entered the death chamber at the Southern Ohio Correctional Facility in Lucasville. In a white shirt and black track pants, he glanced at those watching before climbing onto the injection table using a small metal stool. 

The Associated Press’s Andrew Welsh-Huggins witnessed the execution of Van Hook, who wished peace to the family of his victim, David Self, and recited a Norse prayer as he was put to death.

“There were no signs of obvious distress," Welsh-Huggins said. "His chest rose and fell rapidly, but it was not the extreme up and down high rising and falling that we have seen in the past. He wheezed several times for about a minute, and he sort of puffed his lips in and out and then he went still.” 

Van Hook arrived at Lucasville Tuesday morning and spent much of the day talking to his family, friends and attorneys, according to Ohio Department of Rehabilitation and Correction spokeswoman JoEllen Smith, who provided a timeline of his final 24 hours.

She said prison officials noted he was in good spirits, sometimes laughing and that his conversations were "upbeat."

One of his many visitors was Joe D'Ambrosio who spent 20 years on death row in Ohio for a 1998 Cuyahoga County homicide. He was freed in 2012 after his case went all the way to the U.S. Supreme Court.

Van Hook received communion Tuesday night as well.

His final dinner: Three double cheeseburgers, three orders of french fries, a whole strawberry cheesecake with whipped cream, a large vanilla milkshake, and grapefruit juice.

He had a restless night only sleeping for about an hour. He mostly stayed in his bed singing and listening to music.

Wednesday morning, he refused breakfast but asked to finish the leftover cheesecake. He was witnessed performing a Buddhist chant with a friend.

About an hour before he was taken to the death chamber, he appeared to be meditating.

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Texas executes man for 2004 murder of shopkeeper

The 13th Execution of 2018

Texas executed Christopher Young on July 17, 2018 for murdering a store owner during a robbery in 2004, despite calls from some relatives of the victim that his life be spared, reported Reuters.

Young, 34, was put to death by lethal injection at the state’s death chamber in the city of Huntsville for the murder of Hasmukh Patel at his convenience store in San Antonio, the Texas Department of Criminal Justice said.

Young became the 13th U.S. inmate put to death this year, and the 553rd in Texas since the U.S. Supreme Court reinstated the death penalty in 1976, the most of any state. Prior to Young’s lethal injection, Texas had carried out seven executions so far this year.

Lawyers for Young, who is African-American, filed a last-minute appeal to halt his execution, arguing that race was a factor in the decision this month by the Texas Board of Pardons and Paroles to deny a request to halt the execution.

A U.S. district court judge and an appeals court on Tuesday rejected the petition to spare his life.

Young’s lawyers had noted that the board had recommended clemency in a similar case earlier this year that involved a white death row inmate.

Those arguing for clemency, which was backed by the murder victim’s son, Mitesh Patel, wanted his sentence commuted to life in prison.

In his final statement, Young said: “I want to make sure the Patel family knows I love them like they love me. Make sure the kids in the world know I’m being executed and those kids I’ve been mentoring keep this fight going,” according to the Texas Department of Criminal Justice.

Texas contended that Young deserved to die for the killing, which came shortly after he had sexually assaulted and carjacked a woman.

“Young provides no direct evidence that any member of the board acted with racial animus,” Texas said in a legal filing.

Young was the 1,478th person executed in the United States since 1976, the 553rd person executed in Texas, and the 1,303rd person executed by lethal injection.

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The Vindicator: Ohio on right track with justice reform

Matthew T. Mangino

The Youngstown Vindicator

July 15, 2018

When crime rises, the first inclination of lawmakers is punishment. Longer sentences, mandatory minimums and extended periods of supervision all add to the cost of the criminal justice system with little impact on the rate of recidivism.

For politicians, that’s a tough sale to the public. Trying to convince taxpayers that it’s more prudent and cost effective to invest in rehabilitation rather than punishment can cost a lawmaker his job.

Ohio is in a position to proceed with meaningful sentence reform without waiting on politicians to act. A bipartisan coalition of community, law enforcement, faith and business leaders has proposed a ballot measure for November to reduce penalties for nonviolent drug offenders.

Signatures

Supporters of the “Neighborhood Safety, Drug Treatment and Rehabilitation” amendment submitted 730,031 signatures recently to the various county election boards. The Ohio Secretary of State has until July 24 to certify or reject signatures. To qualify for the ballot, 305,591 valid signatures of Ohio registered voters are needed.

The reform initiative comes at a time when Ohio is in the midst of one of the nation’s most lethal periods of drug abuse. Ohio’s drug overdose deaths rose 39 percent – the third-largest increase nationwide – between mid-2016 and mid-2017, according to figures released earlier this year by the federal government.

The state’s opioid crisis continued to explode in the first half of last year, with 5,232 Ohio overdose deaths recorded in the 12 months ending June 30, 2017, according to the Centers for Disease Control and Prevention.

Just across the border, Pennsylvania saw the largest increase in overdose deaths during that same period.

The escalation of drug deaths in Ohio was nearly three times the 14.4 percent increase in deaths nationally, which grew to about 67,000 across the U.S., according to government estimates.

In Columbus, Franklin County Coroner Anahi Ortiz said that the more recent estimates are even more grim.

“Compare the first three quarters of 2017 to the first three quarters of 2016,” Ortiz told the Columbus Dispatch. “So, an actual comparison day by day – we’ve already seen a 57 percent increase.”

Fentanyl is what’s mostly spurring the additional deaths, officials said. The synthetic opiate has been cut into the heroin supply and, in some cases, replaced heroin that’s sold on the streets, reported the Cincinnati Enquirer.

Fentanyl is more deadly because it’s about 50 percent stronger than heroin and is being altered to create a more potent fentanyl, according to the federal Drug Enforcement Administration.

Ohio’s reform initiative is risky. It is a long-term investment when people are looking for an immediate fix. Money saved from those affected by the amendment would be diverted to substance-abuse programs and to crime victims’ services.

Under the drug treatment and rehabilitation amendment, possessing, obtaining or using a drug or drug paraphernalia would be a misdemeanor offense, with a maximum punishment of 180 days in jail and $1,000 fine. First and second offenses within a two-year period could only be punished with probation. The amendment would not apply to drug dealers.

Half-day credit

Convicted individuals could receive a half-day credit against their sentence for each day of rehabilitative work or programming, up to 25 percent of the total sentence.

An individual on probation for a felony would not be sent to prison for a non-violent violation of probation.

The question facing policy makers: Is public safety better served by incarcerating drug offenders, or would drug treatment and prevention programs be more efficient and effective at curbing drug abuse and promoting public safety?

According to the Justice Policy Institute, studies by the nation’s leading criminal justice research agencies have shown that drug treatment, in concert with other services and programs, is a more cost effective way to deal with drug offenders.

Ohio appears to be on the right track.

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.

To visit the column CLICK HERE