Monday, August 20, 2018

Watergate revisited: Trump's White House counsel cooperates with Mueller investigation

New York Times reporters Maggie Haberman and Michael S. Schmidt broke a blockbuster story explaining that the White House counsel, Donald F. McGahn II, “cooperated extensively” with Robert Mueller’s investigation.
According to the Times, McGahn spoke to the special counsel’s office for as much as 30 hours, on at least three separate occasions. Although what he said remains unknown, Haberman and Schmidt report that his testimony was sparked, at least in part, by the fear that “Mr. Trump was setting up Mr. McGahn to take the blame for any possible illegal acts of obstruction” after Trump’s (now former) lawyers, John Dowd and Ty Cobb, encouraged McGahn to talk to Mueller as part of their “open-book strategy.” 
Reminiscent of the Watergate scandal McGahn was out to protect himself more than sink Trump. According to Slate the story suggests,  “Worried that Mr. Trump would ultimately blame him in the inquiry, Mr. McGahn told people he was determined to avoid the fate of the White House counsel for President Richard M. Nixon, John W. Dean, who pleaded guilty to conspiracy to obstruct justice in the Watergate scandal.” 
Near the end of the piece, Haberman and Schmidt note—wryly—that “as the months passed on, it became apparent that Mr. McGahn and [his lawyer] had overestimated the amount of thought that they believed the president put into his legal strategy.”
To read interview with John Dean CLICK HERE

Sunday, August 19, 2018

Predicting crime by examining the brain

A group of neuroscientists at the University of New Mexico propose to use brain imaging technology to improve risk assessments, reported The Marshall Project. Kent Kiehl, a professor of psychology, neuroscience and the law at the University of New Mexico, said that by measuring brain structure and activity they might better predict the probability an individual will offend again.
Neuroprediction, as it has been dubbed, evokes uneasy memories of a time when phrenologists used body proportions to make pronouncements about a person’s intelligence, virtue, and — in its most extreme iteration — racial inferiority.
Yet predicting likely human behavior based on algorithms is a fact of modern life, and not just in the criminal justice system. After all, what is Facebook if not an algorithm for calculating what we will like, what we will do, and who we are?
In a recent study, Kiehl and his team set out to discover whether brain age — an index of the volume and density of gray matter in the brain — could help predict rearrest.
Age is a key factor of standard risk assessments. On average, defendants between 18 to 25 years olds are considered more likely to engage in risky behavior than their older counterparts. Even so, chronological age, wrote the researchers, may not be an accurate measure of risk.
The advantage of brain age over chronological age is its specificity. It accounts for “individual differences” in brain structure and activity over time, which have an impact on decision-making and risk-taking.
After analyzing the brain scans of 1,332 New Mexico and Wisconsin men and boys — ages 12 to 65 — in state prisons and juvenile facilities, the team found that by combining brain age and activity with psychological measures, such as impulse control and substance dependence, they could accurately predict rearrest in most cases.
To read more CLICK HERE

Saturday, August 18, 2018

GateHouse: DOJ fights full disclosure

Matthew T. Mangino
GateHouse Media
August 17, 2018

The U.S. Department of Justice is taking on the Tennessee Supreme Court’s Office of Professional Responsibility over a 55-year-old U.S. Supreme Court decision.

The controversy is not about just any decision, it’s about the landmark decision of Brady v. Maryland. The U.S. Supreme Court held in Brady that a prosecutor who withholds material evidence—evidence capable of changing the outcome of the case—violates the U.S. Constitution.

The Tennessee Board published an ethics opinion earlier this year announcing that prosecutors have a higher ethical obligation to divulge certain kinds of evidence than what’s legally required of them under the Brady ruling and the Constitution.

Although the U.S. Supreme set the framework for disclosing favorable evidence the Court did not provide guidance to the states and federal government relating to evaluating what evidence needs to be disclosed and the timelines for disclosing the evidence. The rule in Tennessee seeks to provide guidance.

The proposed rule in Tennessee provides that prosecutors must hand over all evidence that is in some way favorable to a defendant, regardless if they believe it would affect the outcome of the case. Prosecutors are required to turn those records over early enough for the information to be used effectively by the defense, including guilty-plea negotiations. That is especially relevant now that about 95 percent of criminal cases end in a guilty-plea.

All fifty states have a rule, statute or other type of authority concerning a prosecutor’s obligation to disclose information favorable to the defense. However, in most states what constitutes material evidence is left to prosecutors to determine. With no guidance from the Courts, or respective legislatures, it is troubling that prosecutors are left solely to decide materiality.
The confusion is amplified by the fact that prosecutors are confusing the test for a Brady violation—favorable and material—with the standard for disclosure, a standard that is not entirely clear. Prosecutors should provide all favorable evidence to the defense and the defense should decide what is material. As it stands in most states, prosecutors, not defense attorneys, are deciding what evidence might make a difference in the outcome.

That doesn’t make sense and some states, in addition to Tennessee, are doing something about it.

The New York Courts recently adopted a rule requiring judges to issue an order in criminal cases reminding prosecutors of their Brady obligations. The order does not change what prosecutors must turn over, but it would for, the first time allow, judges to hold prosecutors in contempt who willfully violate the obligation.

Just this month the U.S. Supreme Court decided a Brady case. The nuances of Brady were on full display. Justice Stephen Breyer, a left leaning justice, wrote the court’s opinion. Breyer found that the evidence withheld was favorable to a couple of defendants accused in the brutal gang rape and murder of a woman in Washington D.C. However, Breyer found that when the evidence that was withheld was considered along with the rest of the evidence before the jury “it is too little, too weak, or too distant from” the other evidence to have made a difference.

In a friend of the court brief filed in a case decided by the U.S. Supreme Court last year over 30 former federal and state prosecutors argued, ”[z]ealously protecting Brady is especially important at a time when . . . public confidence in the criminal justice system is declining.” The former prosecutors shared their support for the premise that “a prosecutor’s duty is to seek justice, not merely to convict.”

Prosecutors withholding favorable information because they believe it won’t make a difference in the case will do nothing to improve public confidence in the criminal justice system.
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 and follow him on Twitter @MatthewTMangino
To visit the column CLICK HERE

Friday, August 17, 2018

Texas arms hundreds of teachers and staff

There are scores of other gun-toting teachers and school officials in Texas who are known as “guardians.” At least 227 school districts, more than 20 percent of the state’s 1,031 districts, had authorized the guardian program by mid-August, compared to 170 districts in February, according to the Stateline.
Training programs surged this summer after a gunman killed eight students and two teachers in May at a high school in Santa Fe, Texas. About two-dozen states have considered similar programs in the wake of the Santa Fe massacre and last February’s shooting at a high school in Parkland, Florida, which killed 17 students and staff members.
“There’s a need out there,” says Bessent of the Wylie Independent School District, who, unlike other marshals, has been publicly identified so he can promote the program. “A school marshal’s responsibility is to isolate, distract and neutralize the threat. If they’re shooting at the school marshal, they’re not shooting at the kids and teachers.”
Craig Bessent, assistant superintendent of the Wylie Independent School District in Abilene, Texas, became part of the Texas School Marshal program in its inaugural class in 2014. Bessent — who has logged more than 500 hours of training and also served a marshal instructor — is a fervent public ambassador for the effectiveness of the school protection program.The Pew Charitable Trusts
Some Texas districts have posted signs on school buildings designed to deter would-be intruders. In the North Texas town of Peaster, for example, signs warn that “the staff at Peaster ISD is armed and may use whatever force necessary to protect our students.”
But the “Don’t Mess with Texas” style of defense remains controversial. Of all the states mulling such legislation this year, only Florida approved it.
President Donald Trump endorsed the idea, but a well-organized coalition that included educators, law enforcement groups, parents and vocal Parkland students pushed back in a state-by-state counterattack.
“We just absolutely do not agree with gun lobbyists that turning janitors and librarians into sharpshooters is effective,” said Shannon Watts, founder of Moms Demand Action for Gun Sense in America, a nationwide nonprofit that helped block bills in 16 of 17 states. Other bills are pending in at least a half-dozen other states.
After Alabama legislators rejected a bill that would have armed teachers and school administrators, Republican Gov. Kay Ivey created the “Alabama Sentry Program” to arm administrators on campuses. Democratic lawmakers denounced her action.
The issue also flared in California after several school districts began using an exemption in the state’s Gun-Free School Zone Act to authorize gun-licensed personnel to carry concealed firearms in schools. A bill signed by Democratic Gov. Jerry Brown in October closed the exemption and halted the practice.
The Florida law, while putting in place some gun control measures, created a $67 million marshal program that allows superintendents and sheriffs to arm designated school personnel, though not full-time classroom teachers.
 To read more CLICK HERE

Thursday, August 16, 2018

Manafort's fate in the hands of the jury

Paul Manafort's fate -- and possibly the future of special counsel Robert Mueller's investigation into Russian interference in the 2016 election -- is now in the hands of 12 men and women from Northern Virginia, reported CNN.
The jury Thursday morning will begin debating the 18 counts of tax evasion, bank fraud and hiding foreign bank accounts facing Donald Trump's former campaign chairman. Manafort has pleaded not guilty to all charges.
For the first time, jurors will see pictures of the $15,000 ostrich jacket, $18,000 python jacket, and other high-end clothes Manafort purchased using foreign wire transfers. They will also debate the testimony of Rick Gates, Manafort's former deputy who admitted to embezzling hundreds of thousands of dollars. And they can pour over reams of emails, tax forms and financial documents that prosecutors say are the "star witness" in their case.
But the courtroom drama will be nothing compared to the political earthquake the verdict will bring, regardless of which way it comes down.
The President has repeatedly called Mueller's investigation a "witch hunt" that hasn't found evidence of Russian collusion with his campaign, and Trump's allies in and out of the White House say the special counsel should wrap things up.
To read more CLICK HERE

Wednesday, August 15, 2018

Nebraska carries out first execution in twenty-one years

The 16th Execution of 2018
Nebraska carried out its first execution in more than two decades on August 14, 2018 with a drug combination never tried before, including the first use of the powerful opioid fentanyl in a lethal injection, reported The Associated Press.
Carey Dean Moore, 60, was pronounced dead at 10:47 a.m. Moore had been sentenced to death for killing two cab drivers in Omaha in 1979. He was the first inmate to be lethally injected in Nebraska, which last carried out an execution in 1997, using the electric chair.
Witnesses said that there appeared to be no complications in the execution process, which also was the first time a state used four drugs in combination. Moore remained mostly still throughout the execution but breathed heavily and gradually red and then purple as the drugs were administered.
Media witnesses including The Associated Press saw Moore take short, gasping breaths that became deeper and more labored. His chest heaved several times before it went still. His eyelids briefly cracked open.
At one point while on the gurney, Moore turned his head and mouthed several words to his family, including “I love you.” No members of the victims’ families witnessed the execution.
The Department of Correctional Services said the first lethal injection drug was administered at 10:24 a.m. Moore was declared dead at 10:47 a.m.
In his final written statement , Moore admitted: “I am guilty.” But he said there are others on Nebraska’s death row who he believes are innocent and he said they should be released.
“How might you feel if your loved one was innocent and on death row?” Moore asked.
The execution drew only about a dozen death penalty supporters and protesters who stood in the rain outside the Nebraska State Penitentiary in Lincoln. Death penalty opponents planned to gather outside the Nebraska Capitol at 5 p.m. for their own rally.
The light turnout stood in contrast to the 1994 execution of Harold Lamont Otey, when more than 1,000 people created a raucous, party-like atmosphere. Otey was executed shortly after midnight in the electric chair, and some in the crowd sang the song “Na Na Hey Hey Kiss Him Goodbye” after it was announced. Later executions were scheduled at 10 a.m.cribe to The Morning Email.
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Moore’s execution comes a little more than three years after Nebraska lawmakers abolished the death penalty, only to have it reinstated the following year through a citizen ballot drive partially financed by Republican Gov. Pete Ricketts. The governor, a wealthy former businessman, has said he was fulfilling the wishes of voters in the conservative state.
The Nebraska drug protocol called for an initial IV dose of diazepam, commonly known as Valium, to render the inmate unconscious, followed by the powerful synthetic opioid fentanyl, then cisatracurium besylate to induce paralysis and stop the inmate from breathing and potassium chloride to stop the heart.
Diazepam and cisatracurium also had never been used in executions before.
According to prosecutors, Moore was 21 when he fatally shot Reuel Van Ness during a robbery with his younger brother, and used the money to buy drugs and pornography. Moore fatally shot Maynard Helgeland by himself five days later, saying he wanted to prove he could take a man’s life by himself. Moore was arrested a week later. He was charged and convicted of first-degree murder, while his 14-year-old brother was convicted of second-degree murder.
In his statement, Moore also apologized to his brother for dragging him into the robbery and murder.
“I should (have) led him in the right way to go instead of bringing him down, way down,” Moore said.
Moore had faced execution dates set by the Nebraska Supreme Court seven times since he was convicted, but each was delayed because of legal challenges and questions over whether previous lethal injection drugs were purchased legally. For some relatives of Moore’s victims, that was far too long — and they hope his name and crimes will finally vanish from headlines.
To read more CLICK HERE

Tuesday, August 14, 2018

DOJ fights efforts to expand 'Brady Rule'

The Justice Department is taking on the Tennessee Supreme Court’s Board of Professional Responsibility over the Brady Rule--the responsibility of the prosecution to turn over evidence to the defense, reported The Marshall Project.
It’s the kind of little-noticed move the department makes all the time but could have a lasting impact on the criminal justice system.
The department’s grievance is with an opinion published by the Tennessee Supreme Court’s Board of Professional Responsibility earlier this year announcing that prosecutors have a higher ethical obligation to divulge certain kinds of evidence than what’s legally required of them under the Constitution. That may seem like a nitpicky distinction. But in June, the department’s three U.S. attorneys in Tennessee penned a scathing 10-page letter demanding to appear before the board — a hearing that has now been scheduled for September.
“The DOJ can’t stand it when states try to use ethics to restrain their prosecutors’ conduct,” said Jennifer E. Laurin, a law professor at the University of Texas and an expert on discovery, who noted that federal prosecutors have been complaining about discovery rules since long before the Trump administration.
The Tennessee case revolves around what any prosecutor in the state, local or federal, should do with evidence that could prove a defendant’s innocence. The U.S. Supreme Court has ruled in the famous Brady v. Maryland and other decisions that district attorneys are duty-bound to disclose this evidence only when it’s “material” to a case — in other words, when it would probably change the outcome.
The Justice Department believes that guidepost is enough.
But over the past decade, lawyer ethics panels in at least a dozen states, now including Tennessee, have said it’s a vague and impotent standard. Prosecutors, these agencies say, are left to define “materiality” however they see fit, judging for themselves whether a piece of evidence might be useful to the defense or not.
Typically, prosecutors also don’t turn over evidence until trial. Yet estimates are that more than 95 percent of criminal cases are decided long before then, during plea bargaining.
To read more CLICK HERE