Saturday, February 6, 2016

GateHouse: When prosecutors renege on promises

Matthew T. Mangino
GateHouse Media
February 5, 2016

What was at stake this week in Norristown, Pennsylvania, when Bill Cosby and his attorneys appeared in court to seek the dismissal of the criminal charges brought against him by the Montgomery County district attorney?

A lot more than the prosecution of a high profile defendant for a particularly salacious crime.

The hearing focused on the defense’s argument that the charges against Cosby violated an agreement struck in 2005 with then-Montgomery County District Attorney Bruce Castor. Cosby’s lawyers say Castor promised not to prosecute the comedian if he agreed to testify in an anticipated civil lawsuit by his accuser, Andrea Constand.

The underlying issue could have ripple effects for the entire criminal justice system. Can an accused rely on the promise of a prosecutor?

Castor was called as the first witness by Brian J. McMonagle, one of Cosby’s lawyers during this week’s hearing. Castor testified that, last year, he contacted then-District Attorney Risa Vetri Ferman to tell her to “tread carefully.” The media attention was intense at the time as the Cosby case became an issue in the Montgomery County district attorney’s race.

“I knew that I had bound the commonwealth, as representative of the sovereign, not to arrest Mr. Cosby . . . and I wanted to make sure that she didn’t make a mistake and go ahead and move against Cosby . . . ”

Why would the word of a respected former prosecutor be called into question?

Last year, the recently sworn-in district attorney Kevin Steele and Castor, a former district attorney, were running against each other. During the campaign Steele produced a commercial that challenged Castor for not filing charges against Cosby when Castor was district attorney in 2005.

Castor declined to prosecute Cosby for the sexual assault of Constand in 2005. At the time he explained, “[T]he District Attorney finds insufficient, credible, and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt.” He continued, “[m]uch exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering light.”

Days before taking office Steele announced charges against Cosby. He suggested that new evidence unearthed in the years since Castor declined to prosecute Cosby had made the case viable once again.

Steele claimed the information derived from Cosby’s deposition was an important factor in his decision to file charges.

Prosecutors have argued the deal did not carry formal immunity without a judge’s approval under state law. In addition, they said Castor did not have the authority to make such an arrangement.

When asked why the agreement wasn’t memorialized in writing, Castor responded according The Legal Intelligencer, “he felt it was not appropriate at the time, since no civil case had yet been filed. He said it would be a suggestion that Cosby did something wrong, and that he wanted to use transactional immunity, which he said is a function of the district attorney.”

Anne Poulin, a law professor at Villanova University told Reuters she would be “shocked” if the judge found Castor had the power to “bind his office in perpetuity.” She was right Judge Steven O’Neil refused to dismiss charges against Cosby

But Poulin’s statement begs the question, if the DA can’t bind his office perpetually who can?

District attorneys are bound by agreements written or sealed with a handshake every day. For instances, the plea bargain, the grease that keeps the criminal justice system rolling, is based on an offer and acceptance--known in legal parlance as a contract. A defendant who relies on a contract to his detriment can force that contract to be honored.

Dolores Troiani, Constand’s lawyer, testified she did not need Castor to promise not to prosecute Cosby to get him to sit for a deposition. If he refused to testify she would have asked a judge to compel him. If he was compelled to testify it would have been with immunity--exactly what the prosecution successfully argued Cosby did not have.

Cosby was not compelled to testify. He did not invoke his Fifth Amendment right. Cosby voluntarily entered into an agreement, a contract, to testify in the civil case in exchange for not being prosecuted civilly.

Cosby had the right to refuse to sit for a deposition during the Constand lawsuit. If he testified in reliance on the prosecutor’s promise and now a new prosecutor intends to renege--that action can have a chilling effect on cooperating with law enforcement, testifying for the state and even negotiating pleas--the grease that keeps the system rolling.

Matthew T. Mangino is the former district attorney of Lawrence County, PA. He is of counsel with Luxenberg, Garbett, Kelly and George, PC in New Castle, PA. You can follow him on twitter at @MatthewTMangino.

To visit the column CLICK HERE

Friday, February 5, 2016

America's probation rate five times that of Europe

The Robina Institute of Criminal Law and Criminal Justice announced new research on American Exceptionalism in Probation Supervision, published Mariel Alper, Alessandro Corda, and Kevin R. Reitz. This is the first in a series of reports that will compare community supervision rates in the United States and Europe.
It is well known that the U.S. leads the world in incarceration rates. This Data Brief shows that, compared with Europe, America is similarly “exceptional” for its high rates of probation supervision. The average probation supervision rate for all fifty states is more than five times the average rate for all European countries included in the most recent Council of Europe data. Several U.S. States with the highest rates of probation supervision (e.g., Ohio, Rhode Island, Idaho, and Indiana) have rates that are eight-to-nine times the average European rate. Such stark differences exist despite the fact that many countries in Europe have overall crime rates that are quite similar to the U.S.
This Data Brief demonstrates for the first time that America suffers from “mass probation” in addition to “mass incarceration.” Although probation has often been thought of as an “alternative” to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision. Over the past several decades, the number of people under probation supervision in the U.S. has increased greatly. Nearly 4 million adults were under probation supervision across America at year-end 2013. In all reporting European countries, with roughly twice the population of the U.S., only 1.5 million adults were under probation supervision.
To read more CLICK HERE

Thursday, February 4, 2016

Most exonerations ever in 2015

Researchers found that 149 people were cleared in 2015 for crimes they didn't commit -- more than any other year in history, according to The Huffington Post. The details were part of  a report published Wednesday by the National Registry of Exonerations, a project of the University of Michigan Law School. 
By comparison, 139 people were exonerated in 2014. The number has risen most years since 2005, when 61 people were cleared of crimes they didn't commit. 
“Historically, this is a very large number for a type of event that we’d like to think almost never happens or just doesn’t happen,” Samuel Gross, a University of Michigan law professor who helped write the report, told The Huffington Post.
The men and women who were cleared last year had, on average, served 14.5 years in prison. Some had been on death row. Others were younger than 18 when they were convicted or had intellectual disabilities. All had been swept into a justice system that's supposed to be based on the presumption of innocence, but failed.
To read more CLICK HERE

Wednesday, February 3, 2016

Georgia executes state's oldest death row inmate

The 5th Execution of 2016
Georgia executed its oldest death row inmate Brandon Astor Jones, 72, who was first sentenced to death in 1979 for the death of Roger Tackett, who managed a convenience store, reported the Washington Post.
Jones was executed at 12:46 a.m. on February 3, 2016, state corrections officials said. He took a final prayer and recorded a statement, they said.
He was sentenced to death after being charged in Tackett’s death more than three decades ago. A Cobb County police officer had said that he saw Jones close the door to a room in the back of the convenience store and, not long after, heard four gunshots, according to a Georgia Supreme Court summary of the case. The officer said he went into the room and found Jones and another man, Van Roosevelt Solomon. A short time later, authorities found Tackett’s body; he had been shot five times, and two revolvers were found.
Jones was initially convicted and sentenced to death, but a district court vacated that sentence because a Bible was allowed in the jury deliberation room. A resentencing trial in 1997 ended with Jones again sentenced to death.
Jones declined to ask for a specific last meal, state officials said, and so was given what is known as the institutional tray (which includes chicken and rice, rutabagas, seasoned turnip greens and cornbread).

This execution is the first in Georgia this year and the fifth nationwide so far in 2016. Since the U.S. Supreme Court reinstated the death penalty in 1976, Georgia is among the leading capital punishment states, with only Texas, Oklahoma, Virginia, Florida and Missouri executing more inmates over that span.
To read more CLICK HERE

Tuesday, February 2, 2016

Only a third of Florida’s executions were the result of unanimous verdicts

Florida has more than 170 people on death row who may not have been condemned to die in any other state — the result of its one-of-a-kind law that allows a jury to recommend capital punishment by a simple majority vote, according to the Tampa Bay Times.
Unburdened by the need to reach a unanimous decision, Florida juries typically don’t. Two-thirds of the people Florida has executed since 1995 were condemned to die on the recommendation of fewer than 12 jurors, the Times analysis found.
No other state allows juries to recommend death by a 7-5 vote. Of the 32 states that have the death penalty, 29 require a unanimous vote of 12. Alabama requires 10. Delaware calls for jurors to unanimously agree on whether the defendant is eligible for the death penalty, but their sentencing recommendation can be split.
The number of inmates Florida has executed since 1995 might be very different if the state required more jurors to agree before sending prisoners to death row.
First take away the 7-5 cases. No other state allows a single juror to decide.
Then remove the 8-4s. The chart is now showing cases with at least 9 votes, which Florida prosecutors recently proposed making the state’s new standard.
Take away 9-3 cases to see how many others would meet the bar in Alabama, which requires at least 10 votes — the next most lax state after Florida.
Remove the 10-2 votes. More than half of the cases are now gone.
Take away the 11-1s. Only a third of Florida’s executions were unanimous — the level required in 29 of 32 states.
This month, the U.S. Supreme Court struck down Florida’s death penalty statute, forcing the Legislature to rewrite it. Although the court did not explicitly address the issue of non-unanimous jury votes, legal experts say this part of Florida’s law is in constitutional jeopardy.
The Times reviewed more than 450 death penalty cases dating back decades to determine how juries voted in the penalty phase of capital trials. The juries’ sentencing recommendations are merely advisory, another unusual feature, but no Florida judge has ignored a jury’s guidance in nearly two decades.
To read more CLICK HERE

Monday, February 1, 2016

U.S. Supreme Court will not hear Pennsylvania death penalty case

The U.S. Supreme Court declined to take up the case of a Pennsylvania death row inmate who wants to have the death penalty outlawed, according to LancasterOnline.
Shonda Walter was convicted in 2005 of first-degree murder in the 2003 hatchet attack death of her 83-year-old neighbor in Lock Haven.
The Associated Press reported the Supreme Court justices did not comment after turning away Walter’s challenge.
In a petition for certiorari, Walter’s attorney, Daniel Silverman, argued that the death penalty violates the Eighth Amendment because “our standards of decency have evolved to the point where the institution is no longer constitutionally sustainable.”
Silverman said Walter was “ill-served by counsel, leaving serious questions about her guilt and eligibility for the death penalty.” He also said Walter, who is black, “joined a mostly black death row … as a product of a system that even a state supreme court committee has acknowledged is plagued by racial discrimination.”
In June 2015, Supreme Court Justice Stephen Breyer wrote a lengthy dissent questioning the constitutionality of the death penalty.
“I believe it highly likely that the death penalty violates the Eight Amendment,” he wrote. “At the very least, the Court should call for full briefing on the basic question.”
The case that was declined is Walter v. Pennsylvania.

 To read more CLICK HERE

Sunday, January 31, 2016

Expert panel makes recommendations to reform federal prisons

A task force of experts commissioned by Congress called for a makeover of the federal prison system, from the sentencing of defendants to the treatment of inmates once they get out, wrote Ted Gest for The Crime Report.
The Charles Colson Task Force on Federal Corrections, completing a year-long study, contended its recommendations would  result in safely dropping the number of federal inmates by 60,000, and save $5 billion.
The federal Bureau of Prisons (BOP) now runs the nation's largest prison system, with 196,352 inmates, of whom about 161,000 were in federal facilities as of last week and the rest in other lockups. The prisons overall are occupied far above their official capacity, making them dangerous to inmates and corrections personnel alike. 
The federal prison population has grown eight-fold since 1980, reaching 220,000 in 2013 before it began to decline recently, partly because the U.S. Sentencing Commissioned has reduced the terms of many prisoners serving long sentences for drug crime. About 6,000 such inmates were released late last year.
With almost 40,000 employees, it costs $7.5 billion annually to run federal prisons, more than one-fourth of the U.S. Justice Department's budget, which has caused concern among members of Congress who watch government spending. Former Rep. Frank Wolf (R-VA), who chaired the subcommittee that helps set the DOJ budget, proposed the panel, which is named for the late aide to President Richard Nixon who became a prison reformer after his own stint as an inmate during the Watergate scandal.
The Colson panel made six main recommendations to deal with what it criticized as a "one size fits all" system:
The federal system should reserve prison beds for those convicted of the most serious federal crimes. This would mean revisiting mandatory minimum drug sentences, which the task force called the "primary driver of BOP overcrowding and unsustainable growth." The task force would also reduce mandatory minimums for gun crimes.
BOP should "promote a culture of safety and rehabilitation and ensure that programming is allocated in accordance with individual risk and needs."
Throughout inmates' terms, correctional policies should give prisoners incentives to take part in programs that would also likely reduce their risk of recidivism. The panel said inmates should be able to cut their sentences by up to 20 percent by participating in such activities.
Before and after releasing inmates, BOP should adopt practices based on scientific evidence.
The federal criminal justice system should enhance performance and accountability through better coordination across agencies and increased transparency.
Congress should reinvest money saved by reducing the prison population to support the expansion of improvement programs for inmates, supervision, and treatment. 
To read more CLICK HERE