Tuesday, January 23, 2018

Supreme Court must intervene in PA county with two DAs

When a district attorney dies in a smaller county in Pennsylvania, typically the office’s first assistant is sworn in as the county’s top law enforcement official.
That process, however, did not happen after Susquehanna’s district attorney passed away last month, and now two attorneys are claiming to be the county’s top prosecutor—with one having taken the oath of office and the other having been appointed by the county’s only commissioned judge, reports The Legal Intelligencer.
The two lawyers have also taken their fight to the state Supreme Court. Although the case presents an issue of apparent first impression, it will be up to the justices to determine whether they will decide the case on the merits, or send it back to a trial court for further review.
The dispute began after Susquehanna District Attorney Robert Klein died on Dec. 27 at the age of 53. According to court documents, Klein had been suffering from cancer for several months, and he told the prosecutor’s office about the condition in either late May or early June.
Following Klein’s death, William Urbanski, who had been first assistant under Klein, sent a letter to Susquehanna County Court of Common Pleas Judge Jason Legg telling him that he had become the district attorney of the county pursuant to 16 P.S. Section 1404(b), which says that “in a county of the fourth through eighth class, the first assistant district attorney shall become district attorney” if any vacancy occurs. That portion goes on to say, “If the first assistant district attorney is unwilling or unable to serve, the judges of the court of common pleas shall fill the vacancy by the appointment of a competent person.”
However, Legg declined to swear Urbanski in to the position.
According to court papers, Legg instead determined that Urbanski was not a resident of Susquehanna County at the time of Klein’s death. Applying Section 1401(a), which says “the district attorney shall be a resident of the county” and “shall have resided in the county for which he is elected or appointed for one year next preceding his election or appointment,” Legg held that Urbanski was therefore “unable to serve” as district attorney.
Despite Legg’s holding, Urbanski had Luzerne County Magisterial District Judge James J. Haggerty, a “lifelong friend,” administer the oath of office on Jan. 1, an affidavit from Urbanski said. The ceremony took place at Urbanski’s family farm in Rice Township, Luzerne County, with members of Klein’s family in attendance.
In the meantime, however, Legg reached out to the Susquehanna Bar Association looking for applicants to fill what he deemed to be the vacant district attorney position, and on Jan. 5, Legg appointed attorney Marion O’Malley as the county’s district attorney.
Three days after O’Malley was appointed, Urbanski filed an emergency action with the Supreme Court, arguing that he had not been given a proper hearing on the issue and that the justices should determine him to be the county’s top law enforcement officer.
To read more CLICK HERE

Monday, January 22, 2018

Texas carries out 1st execution of 2018

1st Execution of 2018
Texas carried out the nation's first execution of 2018 on January 18, 2018, giving lethal injection to a man who became known as Houston's "Tourniquet Killer" because of his signature murder technique on four female victims, reported CBS News.
Anthony Allen Shore was put to death for one of those slayings, the 1992 killing of a 21-year-old woman whose body was dumped in the drive-thru of a Houston Dairy Queen.
In his final statement, Shore, 55, was apologetic and his voice cracked with emotion.
"No amount of words or apology could ever undo what I've done," Shore said while strapped to the death chamber gurney. "I wish I could undo the past, but it is what it is."
As the lethal dose of pentobarbital began, Shore said the drug burned. "Oooh-ee! I can feel that," he said before slipping into unconsciousness.
He was pronounced dead 13 minutes later at 6:28 p.m. CST.
"Anthony Allen Shore's reign of terror is officially over," Andy Kahan, the city of Houston crime victims' advocate, said, speaking for the families of Shore's victims. "There's a reason we have the death penalty in the state of Texas and Anthony Shore is on the top of the list. This has been a long, arduous journey that has taken over 20 years for victims' families."
Shore's lawyers argued in appeals he suffered brain damage early in life that went undiscovered by his trial attorneys and affected Shore's decision to disregard their advice when he told his trial judge he wanted the death penalty. A federal appeals court last year turned down his appeal, the U.S. Supreme Court refused to review his case and the six-member Texas Board of Pardons and Paroles unanimously rejected a clemency petition.
Shore's attorneys said his appeals were exhausted. They filed no last-minute attempts to try to halt his execution.
In 1998, Shore received eight years' probation and became a registered sex offender for sexually assaulting two relatives. Five years later, Shore was arrested for the 1992 slaying of Maria del Carmen Estrada after a tiny particle recovered from under her fingernail was matched to his DNA.
"I didn't set out to kill her," he told police in a taped interview played at his 2004 trial. "That was not my intent. But it got out of hand."
Estrada was walking to work around 6:30 a.m. on April 16, 1992, when he she accepted a ride from him. The former tow truck driver, phone company repairman and part-time musician blamed his actions on "voices in my head that I was going to have her, regardless, to possess her in some way."
He also confessed to killing three others, a 9-year-old and two teenagers. All four of his victims were Hispanic and at least three had been raped. Jurors also heard from three women who testified he raped them.
Harris County District Attorney Kim Ogg, who as an assistant prosecutor worked the then-unsolved Estrada case, said crime scene photos showed Estrada was tortured and had suffered as a stick was used to tighten a cord around her neck.
"I know this case, I know his work and the death penalty is appropriate," she said. "A jury in this case gave Shore death. ... I think he's reached the end of the road and now it's up to government to complete the job."
To read more CLICK HERE

Sunday, January 21, 2018

Mangino interviewed on WFMJ-TV21 Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today regarding guns in Pennsylvania as they relate to medical marijuana and Governor Wolfe's emergency declaration in response to the opioid epidemic. 

To watch the interview CLICK HERE

Kushner hosted meeting on prison reform

Senior White House adviser Jared Kushner recently hosted a listening session for his father-in-law, President Donald Trump, on prison reform, according to Newsweek.  Marc Mauer of The Sentencing Project wrote, since taking office, Attorney General Jeff Sessions has promoted an aggressive agenda of reversing the policies of the Obama years, including reviving contracting with private prisons, urging federal prosecutors to seek harsher prison terms and opposing sentencing reform. Moreover, Sessions hasn’t missed an opportunity to stoke fears about rising violent crime rates during 2015 and 2016, and falsely attributes these spikes to immigrants.
Kushner’s initiative, while beneficial, offers little in the way of substantial reform. To date, he has largely focused on prison re-entry programming, providing services and supports for people coming home from prison. The re-entry concept was initiated under President Bill Clinton, received legislative support from President George W. Bush and has been embraced by corrections leaders around the nation. But important as it is, it’s only an after-the-fact response to crime and harsh sentencing.
Alternatively, a more significant step toward reducing excessive punishments and restoring fairness has been the introduction of the Sentencing Reform and Corrections Act, sponsored by conservative Judiciary Chairman Senator Chuck Grassley (R-IA) and leading liberal Senator Dick Durbin (D-IL). The legislation would outlaw many of the mandatory drug sentencing provisions that have imposed lengthy prison terms in cases of drug kingpins and lower level offenses, alike. It would also restore a greater measure of discretion to federal judges so that they can consider the individual circumstances of each case rather than being forced to apply a one-size-fits-all structure that does a disservice to all. Further, the act would scale back some of the provisions of the notorious “three strikes and you’re out” statutes that have imposed sentences of life without parole even for a third drug offense.
Despite bipartisan support for sentencing reform in Congress, the legislation has been held up in the Senate by a handful of Republicans. After Senator Tom Cotton and then-Senator Jeff Sessions objected to the bill in 2016, Senate Majority Leader Mitch McConnell did not schedule the bill for a floor vote despite its passage by the Senate Judiciary Committee.
So where does that leave us today? More re-entry programming, the kind Kushner is suggesting, would be welcome, but a sole focus on that initiative reveals two grievous flaws.
First, the programming provisions being discussed on Capitol Hill contain no funding allocation. Apparently, there is hope that faith-based organizations will emerge to provide these services pro bono. Religious groups can play a valuable role in ministering to people in prison, but it is irresponsible to expect that volunteers will be capable of delivering professional services, such as substance abuse treatment, that are so urgently needed among the prison population.
Second, dropping the sentencing provisions of the Grassley-Durbin legislation from the Trump administration’s reform conversations guarantees that there will be no significant inroads made into reversing mass incarceration. Thousands of federal drug defendants will be sentenced to decades of incarceration and resources will be squandered that could more effectively be directed to prevention and treatment initiatives.
Shamefully, the U.S. will continue to be a world leader in locking up its citizens, a sad commentary on the goal of achieving liberty and justice.
To read more CLICK HERE

Saturday, January 20, 2018

GateHouse: SCOTUS to decide if rights disappear in a rental car

Matthew T. Mangino
GateHouse Media
January 19, 2018
The United States Supreme Court will soon decide if driving a rental vehicle without being on the rental agreement means the driver surrenders his right to be free from unreasonable search and seizures. The high Court is being asked to decide if the police need a warrant to search a rental car.
In 2014, the Pennsylvania State Police pulled over Terrence Byrd. He was driving a vehicle rented by his fiancée, who also happened to be the mother of his children. The police said Byrd was nervous during the stop and told officers he had some marijuana in the car. The police searched the car without Byrd’s consent.
They told him they didn’t need his consent because the rental agreement did not list Byrd as the renter or as an authorized driver.
The police found heroin in the trunk. Byrd was ultimately sentenced to 10 years in prison.
Byrd’s case made its way to the U.S. Supreme Court when the court of appeals noted that there was a difference of opinion among the various circuit courts concerning the propriety of a warrantless search of a rental vehicle.
Byrd’s written argument submitted to the Supreme Court started like this, “When a person’s fiancée hands him the keys to her car and tells him he may use it, he reasonably expects privacy in the car. She has given him both possession and control over the car, and he reasonably believes that he can exclude strangers and the government from intruding upon his private personal and family possessions stored in the car.”
The Fourth Amendment protects individuals from warrantless searches of homes, businesses, vehicles and persons where there is a reasonable expectation of privacy. The Fourth Amendment is one of the first 10 amendments to the United States Constitution known as the Bill of Rights. In early America, the Fourth Amendment applied only to federal prosecutions. The Fourteenth Amendment, ratified in 1868, made the Bill of Rights applicable to state prosecutions as well.
Attorneys for Byrd argued that his expectation of privacy did not derive from the rental car agreement. Byrd urged the court to consider that he had actual physical control of the vehicle.
If Byrd were carrying a duffle bag over his shoulder, would it matter if his fiancée purchased the bag? Could the police go into the bag if Byrd couldn’t produce a receipt?
The government argued in its brief “The consent of petitioner’s girlfriend could not validly authorize petitioner to drive the car because the rental agreement did not grant her the power to let others drive the vehicle. In fact, the contract expressly advised that ‘permitting an unauthorized driver to operate the vehicle is a violation of the rental agreement.’”
Justice Sonia Sotomayor suggested in response to the government’s argument, “If we rule that someone has no expectation of privacy even when the renter has given it to them, then what we’re authorizing is the police to stop every rental car and search every rental car, without probable cause, that might be on the road.”
According to Adam Liptak of the New York Times, the government argued that criminals often use cars rented by others to transport drugs, victims of human trafficking and unauthorized immigrants.
Liptak acknowledged that allowing the police to search rental cars whenever they pull over an unlisted driver would yield evidence of crimes. Byrd’s lawyers wrote, “But what is expedient for law enforcement is not the test.”
The test is probable cause. Do the police believe the vehicle is involved in some illegality and is there is a threat the vehicle will be moved before the contraband be can be confiscated? This country’s Constitution, and courts, do not permit random searches based on a “hunch.”
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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Friday, January 19, 2018

SCOTUS hears case about unsuccessful defense strategy in capital case

The U.S. Supreme Court recently heard arguments in McCoy v. Louisiana a capital case, which asks the court whether it is constitutional for defense counsel to concede an accused's guilt over the accused's express objection, reported Jurist. The case arose after McCoy's defense attorney pleaded guilty, despite McCoy's express objection, because he believed it was his ethical duty to save his client's life and conceding guilt would do so. The attorney's strategy failed, however, and McCoy was sentenced to death.
McCoy argues that he has a constitutional right to make certain decisions in his defense, and pleading guilty or not guilt is one of those. Louisiana agrees that a defendant has the right to make some basic decisions, but that conceding guilt to a jury is not one of them.
During the argument, Justice Kagan reframed the issue, stating:
[T]his lawyer was in a terrible position because this lawyer wants to defeat the death penalty. And he has a client who says: That's not my goal here. But the question is when that happens, does the lawyer have to step back and say: You know what? That's not his goal. His goal is to avoid admitting that he killed his family members.
The court's opinion will likely depend on its interpretation of the Sixth Amendment.
To read more CLICK HERE

Thursday, January 18, 2018

Wolfe's emergency declaration could have impact on guns

Pennsylvania Gov. Tom Wolf declared the heroin and opioid epidemic a statewide disaster emergency on Tuesday but in “the process enacted a statute by the PA General Assembly years ago,” said Joshua Prince, a lawyer at The Prince Law Offices in Pennsylvania, explained on The Rich Zeoli Show on 1210AM WPHT.
“It is automatic when a governor issues a proclamation of emergency, this section of the Law 6107 applies, where it prohibits anyone from carrying a firearm on any public streets or any public property during that emergency,” he said.
On whether Gov. Wolf could choose not to invoke the statute, Prince said,”This section of the code (6107) does not have any discretionary aspect to it; it automatically applies as soon as there is any proclamation of emergency.
“I don’t believe Gov. Wolf knew that by issuing this proclamation it would trigger this prohibition. He has been surprised by the amount of people calling his office who are frustrated and concerned about this issue. It seems as though that they were caught completely off guard by it.”
To read more CLICK HERE