Thursday, March 31, 2011

Budget Crisis Hits Courthouses

The budget crunch that has effected nearly every state in America is beginning to have an impact on court systems across the country and will in turn affect those who look to the courts to right a wrong, seek protection or expect the just imposition of punishment.

Just this week three states sounded the alarm.

Callie T. Dietz, administrative director of the Alabama Unified Judicial System, announced recently that there was an immediate need to cut 150 employees in the system to meet the across the board cuts declared by Governor Robert Bentley to balance the state's Gen­eral Fund budget, according to the Montgomery Advertiser.

The state judicial system plans to lay off juvenile probation officers, staffs for judges, law clerks and bailiffs, and could cut more if the system does not receive more money than the Governor recommended for the coming year.

New York's Chief Judge, Jonathan Lippman, said recently that the reduction in financing would require hundreds of layoffs — at least — and would include courthouse personnel, not only back-office staff, though court officials would not be specific about the kinds of workers who might be let go, according to the New York Times.

“It will have a tremendous impact on the system,” Judge Lippman said in a telephone interview with the Times. “At a minimum, you’re going to see delays in the administration of justice, without question.”

The cuts to the court system, which has about 15,500 employees, came two months after Governor Andrew Cuomo chastised the judicial branch for not agreeing to a 10 percent reduction in spending that he imposed on state agencies.

Pennsylvania Supreme Court Chief Justice Ron Castille asked for $348 million for 2011-12, considerably more than the $277 million that the recommended in the state budget, according to the Pittsburgh Post-Gazette.

The courts' budget has been balanced in the last two years only by transferring millions of dollars from an account intended to upgrade computer technology. But that account will run out in a year or so.

There are now just over 1,000 judges in the state system -- 550 magisterial district judges, 460 Common Pleas judges and 31 in the three appellate courts. Justice Castille told the Post-Gazette he intends to trim about 50 district magistrates. The number of Common Pleas judges can be reduced only through new legislation.

Wednesday, March 30, 2011

Arizona Executes Man for 1989 Murders

The 10th Execution of 2011

Eric John King was put to death on March 29, 2011 in Arizona a few hours after the U.S. Supreme Court refused to intercede, according to United Press International.

The high court rejected King's appeal and a request for a stay of execution in a two-sentence order. The Arizona Board of Clemency refused a day earlier to hear an appeal based on questions about the use of imported sodium thiopental for the lethal injection, reported The Arizona Republic.

He died just after 10 a.m. in the state prison in Florence. He smiled at relatives and friends who witnessed the execution and said only "no" when asked if he had any last words, according to UPI.

King's lawyers fought until the end arguing the drugs to be used for the execution were classified for animals, not humans. Corrections Department Director Charles Ryan told the Republic an employee at the company importing the drugs made a mistake filling out U.S. Customs forms.

King was sentenced to death for killing a clerk and a security guard at a Short Stop store in Phoenix in 1989. He and a friend had been drinking and went to the store to buy wine. King had completed a prison term for rape only four months before the killings.

Read more:

Tuesday, March 29, 2011

Arizona Switching to Single Drug Execution Protocol

Arizona announced last week that it will change its execution protocol. Beginning in May 2011 the state will move from its current three drug execution protocol to a single drug protocol. However, the state will carry out today’s execution of Eric John King and the execution of another inmate on April 5 using the three drug protocol. Arizona Corrections Director Charles Ryan said the change was to allay any "perceived concerns" that the anesthetic drug sodium thiopental is ineffective. The drug is usually the first of three drugs used in executions. The drug has been in short supply due to its domestic manufacturer discontinuing the drug. Critics have said the three-drug protocol might result in an inmate being painfully suffocated if, imported sodium thiopental,does not work before the other two drugs are administered. Oklahoma has switched from sodium thiopnetal to pentobarbital. Texas recently announced a switch from sodium thiopental to pentobarbital as part of the state's three-drug protocol. Ohio has switched to only a single dose of pentobarbital for its executions, and Ryan said that Arizona may also switch to pentobarbital. Washington state uses a single drug protocol but continues to use a single lethal dose of sodium thiopental. To read more:'s-tuesday-execution

Monday, March 28, 2011

Michigan Exempts "Romeos and Juliets” from Sex Offender Registry

Proposed legislation in Michigan will prevent teens from ending up on the sex offender registry if they had consensual sex with a partner between 13 and 16 years old, provided there is no more than four years between their ages, according to the Detroit News. "The typical case is a 17-year-old boy and 15-year-old girl getting on the list for 25 years and it ruins his life," Senator Rick Jones told the News. "The Romeos and Juliets now will no longer be on this list." The bill appears to be a common sense approach to a growing problem. Teenagers across the country have been subjected to onerous reporting and registry requirements for engaging in consensual sexual activity with a partner who is comparable in age and maturity. Registry and reporting requirements have had a devastating impact on the future of countless teens. Lawmakers around the country have ignored the problem for fear of being perceived as coddling sex offenders. Michigan appears poised to do the right thing. Pursuant to the federal Adam Walsh Act, states must have a three-tiered system, with various lengths of time spent on the list depending on the offense, reported the News. Under the bill, first-tier offenders could petition a judge to have their name removed after 10 years. Second-tier offenders would be on the public list for 25 years and have to report twice a year. Third-tier offenders would be on the public list for life and have to report every three months. Under the bill, children would have to be at least 14 to be added to the sex offender registry, reported News. Offenders convicted of lesser sex offenses, such as flashing and peeping, would not be listed on the public registry, but instead be on a list that can be viewed only by law enforcement for 15 years and would have to report to the Michigan State Police once a year. Governor Rick Snyder is expected to sign the bill. To read more:

Sunday, March 27, 2011

Youngstown Vindicator, Letter to the Editor, March 27, 2011

No. 1 in killing is not an honor The nearly monthly drum-beat marching Ohio’s 157 death-row prisoners to today’s gallows goes on. Ohio is challenging Texas for status as the nation’s top executioner. Wouldn’t it be better to leave interstate competition for No. 1 status to the basketball court or football field? U.S. Supreme Court Justices Blackmun and Stevens, who once supported the death penalty, turned against it, as has Ohio Supreme Court Justice Paul Pfeifer. Years ago he helped draft our state’s “go ahead and kill them” statute. He now judges that legal option has gotten out of hand. Our former state prisons director has reached the same conclusion. Last year Ohio executed eight people, more than it has since 1949. Among other things, sustaining this drumbeat of death is more expensive than the alternative that 16 states have now adopted — life imprisonment without the possibility of parole. As Gov. Kasich and our legislature look for ways to balance our budget, wouldn’t it be better to save on the machinery of death than on education? Ohio’s Catholic bishops, including our own Bishop Murry, stand opposed to Ohio’s policy and practice. As Matthew Mangino wrote in the Feb. 6 Vindicator, when left to the politicians “capital punishment is more a campaign prop than a meaningful tool of the criminal justice system.”Approaching the issue on a moral and fiscal basis may persuade Ohio citizens that this is a competition where we don’t care to be No. 1, or even No. 2. Father Bob Bonnot, Struthers

Support for the Death Penalty Increases with Familiarity

This month the state of Illinois abolished the death penalty. Many attribute the the demise of the death penalty in Illinois to several death row inmates who were released from death row in the late 1990's. In fact, disgraced Illinois governor George Ryan, who is himself in prison, released all death row inmates in 1999.

Ryan's actions were not long after John Wayne Gacy was executed in Illinois. Gacy killed 33 young boys and buried their bodies under his house. Gacy was defiant to the end. He said others had killed the boys and buried their bodies under his house. He left this world with these final words, "kiss my ass."

I am confident that there was not a ground swell of support for Gacy as he lay on the gurney on May 10, 1994. The more that is known about a killer or killing the more likely people support the death penalty.

I have explored this phenomenon in my forthcoming book, The Faces of Death: Desperate Appeals, Last Meals and Final Statements, an In-Depth Look at Every Execution of 2010.

Public opinion polls have, in the past, supported the proposition that the more one knows about a specific murder or murderer the more likely that person will support the death penalty. Saddam Hussein and Terry McVeigh are examples that even those who otherwise oppose the death penalty can support an execution if they are intimately familiar with the heinousness of the crime, the violent history of the killer or the vulnerability of the victim.

In 2001, when 67 percent of people said they supported the death penalty, 81 percent supported the execution of McVeigh. In 2006, when 65 percent of people said they supported the death penalty, 82 percent supported the execution of Hussein.

Saturday, March 26, 2011

Cocaine Sentencing Disparity Still Exists Among States

In August 2010 President Barack Obama signed the Fair Sentencing Act, historic legislation that reduced the quantity-based sentencing differential between federal crack and powder cocaine convictions that resulted in significant racial disparities and excessive penalties, according to the Sentencing Project.

The bipartisan measure addressed the 100-to-1 disparity that punished defendants with five grams of crack cocaine (also known as cocaine base) with the same five-year mandatory minimum penalty imposed on powder cocaine defendants with 100 times that amount.

The Sentencing Project called Cracked Justice addresses disparities in cocaine sentencing in 13 states and documents efforts at the federal and state level to correct these injustices.

In Missouri, where a defendant convicted of selling six grams of crack cocaine faces the same prison term–-a ten-year mandatory minimum–-as someone who sells 450 grams of powder cocaine, or 75 times that amount.

In Oklahoma, which maintains a 6-to-1 quantity-based sentencing disparity, a ten-year mandatory minimum sentence is triggered for five grams of crack cocaine and 28 grams of powder cocaine.

In Ohio, sentencing disparities vary across felony categories based on quantity amounts. The state uses a 10-to-1 ratio of 1,000 grams of powder cocaine and 100 grams of crack cocaine for major drug offenses and imposes a ten-year mandatory minimum.

Read the full report Cracked Justice

Friday, March 25, 2011

Pittsburgh Post-Gazette’s Ipso Facto Launches The Cautionary Instruction

My first installment of The Cautionary Instruction was posted today on the Pittsburgh Post-Gazette’s legal web page, Ipso Facto. The Cautionary Instruction came about as a result of this

Every Friday, I will highlight a facet of the criminal justice system that merits some exploration. Whether the issue is one of local interest or has national implications The Cautionary Instruction will provide some framework to generate dialogue.

I am thrilled to have an opportunity, through the Post-Gazette, to promote an exchange of ideas on issues of law and order. I fervently hope that my blog will encourage readers to speak out. Read today’s The Cautionary Instruction.

Thursday, March 24, 2011

Prosecutor Creates Bonus Based on Conviction Rates

A Colorado district attorney has established a bonus system for prosecutors based on the number of cases tried and convictions won. According to the Denver Post, for an assistant district attorney to earn the average $1,100 bonus the ADA must participate in at least five trials during the year, with 70 percent of the trials ending in a felony conviction. Plea bargains or mistrials are not counted in the bonus calculations.

"It is hard to find performance standards by which to measure trial attorneys," District Attorney Carol Chambers told the Post. Chambers created the prosecutor bonus plan. "This is the standard I think best meets the need to have a performance standard that attorneys know and can be aware of and that does not in any way encourage any outcome in any specific case," added Chambers.

Denver District Attorney Mitch Morrissey told the Post he's seen plenty of cases where hard work didn't pay off in the jury box and added that he'd be concerned about unintended consequences of a rule like Chambers'.

"I would worry that if something is tied to a conviction rate, a deputy wouldn't try a hard case that required a trial. We want people trying cases that need to be tried," Morrissey said. "If they don't win, they don't win."

Boulder County District Attorney Stan Garnett looks at attorneys' ethical standards, how they juggle their dockets and move cases along, their relationships with local law enforcement, and whether they take cases to trial. But he hasn't set a quota.

"I want my department in trial as much as possible, but I want them focused on doing the right thing on their cases," Garnett told the Post. "I don't want them distracted by some kind of bonus or award."

Garnett pointed to the American Bar Association directive for prosecutors: Seek justice, not merely conviction.

To read more:

Wednesday, March 23, 2011

A Year has Passed Since Oldest Death Row Inmate Evaded Execution

Last year, Viva LeRoy Nash passed away on Arizona’s death row. That is not unusual. For instance in California five times as many death row inmates die of suicide or natural causes as die from lethal injection.

The unusual thing about Nash was that he was 94-years-old when he died on death row. He was the oldest person on death row in America. According to his lawyer he was deaf, blind, disabled, mentally ill and had dementia.

Nash had been imprisoned almost continuously since the age of 15. Nash was born in 1915 and had a criminal record dating to the 1930s. He grew up in southern Utah and was sent to the federal prison in Leavenworth, Kansas, in 1930 for an armed robbery.

He spent 25 years in prison for killing a Connecticut police officer in 1947.

In 1977, Nash was sentenced to two consecutive life sentences for a robbery and his second murder which occurred in Salt Lake City. He escaped from a prison work crew in October 1982.

Three weeks later, on November 3, 1982, Nash committed his third murder. He went into a coin shop in Phoenix and demanded money. Nash shot the clerk three times, killing him. He was sentenced to death in 1983.

The only unfortunate thing about Mr. Nash’s case was that he lived another 27 years after his third murder.

To read more:

Tuesday, March 22, 2011

Long Accepted Evidence Being Challenged in Court

Fingerprints, Eye Witnesses and Arson Investigations all Subject to Scrutiny

A recent article in the Philadelphia Inquirer explores the potential problems with evidence used in criminal trials. The article explores several forms of evidence including eye witness testimony, fingerprints and arson investigation techniques.

According to the Inquirer, the legal challenges around the country are an outgrowth of the revolutionary impact of DNA testing, which has freed 267 prisoners nationwide, including 10 in Pennsylvania and five in New Jersey.

Eyewitness testimony was a factor in the convictions of 75 percent of those exonerated through DNA testing, according to the New York-based Innocence Project. Faulty forensic evidence contributed to 50 percent of the convictions. The project said that 25 percent of the defendants later found innocent had confessed or pleaded guilty, and that jailhouse informants were a factor in 15 percent of the overturned cases, reported the Inquirer.

The Inquirer suggested that eye witness evidence, always thought to be the gold standard of evidence, can be influenced by the race of the alleged offender and witness, use of weapons, time elapse between offense and testimony and trauma. The article laments that Pennsylvania does not permit the challenge of an eye witness by expert testimony.

Fingerprints long accepted as conclusive evidence of guilt are being challenged.In a recent Philadelphia case an attorney cited 21 cases of mistaken identifications by print examiners since 1990, including a Delaware County murder case in which a defendant, jailed for two years, was freed after a panel of experts agreed that his fingerprint was not at the crime scene, reported the Inquirer.

Arson investigations are another area of concern. A National Academy of Sciences report found serious deficiencies in how fire investigators decide whether a fire had been intentionally set. In Texas, Cameron Willingham was convicted of murder and executed for the deaths of his three young children as the result of an arson.

Willingham's case gained national attention in 2009 when an article in The New Yorker examined the arson investigation through experts and demonstrated that, contrary to the claims of the prosecution, there was no evidence that the house fire was intentionally set.

Pennsylvania convened a wrongful conviction committee which is expected to proposed that all confessions obtained by police be video taped, police departments implement a new lineup procedure and that the state create a forensic board to set standards for evidence analysis in Pennsylvania.

To read more:

Monday, March 21, 2011

New Jersey Law Enforcement Feeling the Pinch

Late last year, Camden, New Jersey, rated number two in the nation among cities with the highest crime rate, laid off 44 percent of its police force. Within a day of the lay-offs, the city saw six carjackings, and six shootings, the Associated Press reported. The crime rate shot up by 20 percent following the layoffs, according to the

Governor Chris Christie has vowed to balance New Jersey's budget without raising taxes--whatever the cost to local residents. Camden is not the only municipality feeling the pinch. Hiring freezes, attrition, and layoffs have caused municipal police departments across New Jersey to shrink about 11 percent between January 1, 2009 and September 10, 2010, according to the Star-Ledger. Those layoffs mean 2,228 fewer officers across the state. To read more on the plight of New Jersey law enforcement,

Camden has announced the rehiring of 50 police officers. The measure is temporary and came as the result of a payment in lieu of taxes from the South Jersey Port Corporation, reported the

Meanwhile, in Paterson, a city where the crime index is 59% greater than the New Jersey average and 8% greater than the national average, face the impending layoff of 125 Police officers, according to The future is not bright in Patterson. Since 1994, the department has used approximately $12.6 million from the federally funded grant to employ 137 officers, MSNBC reported.

During a recent Congressional Budget Committee hearing, House GOP members threatened to cut the COPS grant since FBI statistics showed the violent crime rate in the U.S. dipped by 40 percent since the grants inception. I recently wrote about Senator John Kerry blasting the Houses for its reckless proposal,

If federal funding for local police officers is slashed with the austerity measures in place in states nationwide--Camden and Patterson are a harbinger of things to come in cities across the country.

To read more:

Sunday, March 20, 2011

Ohio's Prison Austerity Plan

Will it save money in the long run?

Ohio has a massive budget shortfall and an enormous annual corrections expenditure. The state has announced a new austerity program that includes sacrifices by everyone in the state including prison inmates.

The Ohio Department of Rehabilitation and Correction will begin requiring inmates to pay $1 a month if they use televisions and radios in their cells. The idea will save about $250,000 a year, according to the Columbus Dispatch.

Inmates are paid an average of $18 a month for doing jobs in prisons - more if they work for Ohio Penal Industries. The money goes into an account, maintained by the prison, which will be tapped for the electricity charge.

Inmates will also be asked to make sacrifices at the dinner table. According to the Dispatch, the flavored, noncarbonated drinks inmates are now served are being eliminated. Menus will be modified to serve more of the "most-popular and least-expensive items," the budget plan said. Together, those will save an estimated $4 million over the next two years.

Inmates have orange and apple juice, coffee and milk available with breakfast but will get only water with the noon and evening meals with these changes.

Ohio has an $8 billion revenue shortfall. Included in the state's austerity plan is the elimination of the $75 given to inmates as "gate pay" when they are released from prison. This money helps pay for a bus ticket or a couple of meals after walking out the prison or half-way house's front door. That will provide a savings of $374,000 over two years. Based on those calculations the state proposes that 5,000 inmates will be released without gate pay over the next two years.

What if one-half of one percent of those released (approximately 25 offenders) commit a crime because they need to get a ride home or are hungry and are returned to prison for one year at $30,000 a year. The cost to the state--$750,000, double the $374,000 savings. Not to mention the cost of victimization for the woman whose purse is snatched, the home burglarized or the store robbed.

This is a short-sighted decision that sounds good in the newspaper, but potentially can cause more harm than good.

To read more:

Saturday, March 19, 2011

Death Sentence Overturned, Inmate Kills Self

George Hatton Smithey fought his death sentence for more than 20 years. He had been sitting on California's death row since his conviction for a 1988 attempted rape and murder. On August 23, 2010 he achieved success. His death sentence was commuted to life in prison.

How did Smithey celebrate? He hanged himself with a bed sheet in his cell. Was the appeal pursued against his will? Did the 70-year-old Smithey want to be executed? Had Smithey lost the will to live because his fight to overturn his death sentence had ended, albeit with success?

The likelihood of dying by lethal injection in California is not very good. Since 1978 thirteen inmates have been executed. Fifty-four have died by natural causes and 18 have committed suicide--Smithey not included, he committed suicide shortly after leaving death row.

In 2002, the U.S. Supreme Court in Atkins v. Virginia, 506 U.S 304(2002) banned the execution of the mentally retarded. Smithey's legal team had been trying to prove that their client was mentally retarded ever since. In 2008, the California Supreme Court sent Smithey's case back to county court to determine if he was mentally retarded. The county court said he was in fact mentally retarded and commuted his sentence.

Deputy District Attorney Seth Matthews wondered about something Smithey said July 22 during his examination by a forensic psychologist, according to the Lodi Record. After the interview the psychologist told Matthews that Smithey "didn't want to be found retarded or labeled retarded."

Apparently, Smithey was quit ready to face execution, but the prospect of being labelled mentally retarded was more than he could handled.

To read more:

Friday, March 18, 2011

PA: Senate Bill Looks to Expand DNA Collection

A new bill in Pennsylvania would provide for mandatory DNA testing after a suspect's preliminary hearing on any felony charge as well as a number of misdemeanors, according to the Associated Press. Similar to the process currently used by police to obtain fingerprints from people accused of a crime.

The bill sponsored by State Senator Dominic Pileggi would build on the list of offenses for which post-conviction DNA testing is now required. "We need to make the best possible use of the rapidly evolving science of DNA evidence to help fight crime and ensure public safety," Senator Pileggi told the Associated Press. "That's not happening right now, and as a result criminals are going free and innocent people are in jail."

Twenty-four other states have similar laws, including Ohio, Maryland and Virginia as well as Florida, Texas and California, reported the Associated Press.

The legislation also would allow police to use searches of DNA collected from crime scenes to find close — but not precise — matches in the state DNA database to trace potential relatives of a perpetrator. At least three other states have similar laws, according to the Associated Press.

To read more:

Thursday, March 17, 2011

Sen. Kerry Blasts House for Cutting Police Funding

Senator John F. Kerry blasted the Republican controlled House for taking a “meat ax’’ to crucial items in the proposed federal budget, reported the Boston Globe. Kerry said Republicans are attempting to dismantle a program (COPS) he helped spearhead in 1994, with GOP support, to put more than 100,000 additional police officers on the streets. He said crime decreased 1.5 percent since then, and violent crime dropped 2.5 percent.

“Well, I didn’t know that we had ended crime in America,’’ Kerry told the National Fraternal Order of Police in Boston. “But some of our Republican friends evidently think that none of this matters. I mean, none of it. We’re caught up now in one of the most ridiculous moments that I’ve ever seen in all the time that I’ve been in public life.’’

Todd Bramwell, the president of the Massachusetts FOP chapter, said taxpayers benefit little from cutting police, since they have to then pay unemployment and other benefits. Then, he said, taxpayers are left with the risk of an increase in crime. “The actual cost isn’t really saving the taxpayers much money,’’ he told the Globe.

To read more:

Texas Changes Execution Protocol

America's Most Prolific State for Executions Switches to Pentobarbital

Texas has announced a change to its execution protocol. The state will replace sodium thiopental, one of three drugs used for executions,with pentobarbital. Both drugs are anesthetics. Sodium thiopental has been in short supply since the sole domestic manufacturer discontinued the drug under pressure from European partners who are opposed to capital punishment.

"We are going to move from sodium thiopental to pentobarbital," Michelle Lyons, public information director for the Texas Department of Criminal Justice, told AFP.

Texas uses a three-drug protocol for executions. Sodium thiopental is the first drug administered to sedate the inmate before injecting drugs that paralyze and stop the heart.

Oklahoma first used pentobarbital during a three drug execution late last year. Last December,Oklahoman John David Duty was the first inmate in America executed with pentobarbital. On March 10, 2011, Ohio used a single lethal dose of pentobarbital to execute Johnnie Baston. Ohio and Washington state are the only states that use a single-drug execution protocol.

It is significant that Texas has switched to pentobarbital. Texas is the most prolific user of execution as punishment in the U.S. Texas consistently executes the most inmates annually. Texas has accounted for more than one-third of all executions carried out in this country since the death penalty was reinstated in 1976.

To read more:

Wednesday, March 16, 2011

DEA Seizes Georgia's Execution Drug

Sodium thiopental is one of three-drugs used for executions in 32 of 34 states with the death penalty. Washington state uses a single dose of sodium thiopental, and Ohio uses a single dose of pentobarbital for executions.

Sodium thiopental has been is short supply as a result of Hospira, Inc., the lone U.S. manufacturer of the drug, discontinued its manufacture in the U.S. As a result, some states have looked overseas for the drug and obtained sodium thiopental from outside the U.S. and have successfully used it. At least five states — Arizona, Arkansas, California, Georgia and Tennessee — had to turn to England for their supply of the drug. Nebraska purchased a supply from an Indian firm. Although, the U.K. government has now banned the export of sodium thiopental for executions.

Georgia obtained a supply of sodium thiopental from an international source, although the state has no executions scheduled. However, Georgia’s stockpiling of the drug took an interesting twist. According to the Atlanta Business Chronicle, the state's supply of sodium thiopental has been seized by the Drug Enforcement Administration due to concerns about how the drug was imported to the U.S.

The seizure comes less than two months after Georgia executed a man who argued the state bought its supply of the drug from a “fly-by-night” supplier in England, the Washington Post reports, citing The Associated Press. Lawyers for inmates have argued outdated and counterfeit drugs could cause unnecessary suffering during executions.

To read more:

Tuesday, March 15, 2011

Reviewing Absolute Immunity

U.S. Supreme Court hears arguments on how far it should extend for prosecutors

Pennsylvania Law Weekly
March 14, 2010

On March 2, the U.S. Supreme Court heard oral arguments in the matter of Abdullah al-Kidd's lawsuit against former U.S. Attorney General John Ashcroft and whether that lawsuit should be allowed to continue.

Al-Kidd, an American citizen who converted to Islam while in college, was arrested and detained in the wake of the 9/11 terrorism threat. His arrest was pursuant to a material witness warrant, a process intended to make sure witnesses appear to testify at criminal proceedings.

The issue before the Supreme Court is whether there should be some restrictions on absolute immunity for prosecutors when performing a prosecutorial functions and whether taking a material witness into custody, even as a pretext for investigating the detained witness, is a protected prosecutorial function.

The law is settled on the issue of protected prosecutorial functions.

Absolute immunity protects prosecutors from liability whenever they are performing the traditional functions of an advocate or are engaged in acts that are intimately associated with the prosecutorial functions of the criminal process. Absolute immunity extends not only to the decision to initiate a prosecution by filing charges, but also to any duties of the prosecutor in his role as advocate.

The Supreme Court has acknowledged that absolute immunity may have significant consequences for some aggrieved parties.

For instance, the court acknowledged in the 1976 case Imbler v. Pachtman that absolute immunity may "leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." The court expressed agreement with 2nd U.S. Circuit Court of Appeals Chief Judge Learned Hand, who observed in the 1949 decision Gregoire v. Biddle that it is "in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."

During the recent argument, an exchange between Ashcroft's attorney, Acting Solicitor General Neal Katyal, and Justice Sonia Sotomayor signaled the government's position: Exposure to civil law suits will have a chilling effect on prosecutors.

Katyal argued, "[There is] no doubt that certain individuals will be harmed, but the cost of rooting out the bad apples through damages lawsuits is far worse, that it causes prosecutors to flinch in the performance of their duties."

Sotomayor questioned Katyal's position, saying, "If you take the point that you're raising, then prosecutors can out of spite, out of pure investigative reasoning, out of whatever motive they have, just lock people up."

"You don't think there's a reason to make prosecutors flinch against willy-nilly" [detentions], she later asked.

Katyal responded: "Making prosecutors flinch is always a bad thing.'

In terms of tough questions, that was about it for the government during the legal argument.

According to Adam Liptak of The New York Times , the current members of the Supreme Court are considered to be a part of a "hot bench." Attorneys who come before this court should expect to be confronted with a host of challenging questions. The fact that the justices asked few questions of the government's attorney is telling. Liptak wrote that "the justices' lack of engagement at the argument probably signaled a victory for the government."

This lawsuit has its origins in the government's action immediately after 9/11.

Ashcroft and other high-ranking officials publicly described the importance of using the material witness process against suspected terrorists — including U.S. citizens. Less than two months after 9/11, according to the Associated Press , Ashcroft said that the "aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks."

Al-Kidd contends that he was not detained because he had information about terrorism. Instead, he says, he was detained as part of a plan approved by Ashcroft to sweep up Muslim men the government suspected, but could not prove, had ties to terrorism.

The 9th U.S. Circuit Court of Appeals said the lawsuit could proceed.

According to the Washington Post, attorney Lee Gelernt, who is representing al-Kidd, said his client should be permitted to proceed with his claim that Ashcroft had a policy of misusing the material witness process.

Gelernt contends that Ashcroft is not entitled to absolute immunity for three reasons.

First, seeking a material witness warrant is not a core prosecutorial function; second, the warrant was to investigate al-Kidd himself, therefore a police function not protected by absolute immunity; third, the affidavit to seek the warrant prepared by the FBI at the direction of the attorney general is not protected by absolute immunity.

Katyal has argued that seeking and obtaining a material-witness warrant is a core 6"prosecutorial function, and that a prosecutor is absolutely immune from any claims based on that function. A prosecutor's decision that the testimony of a particular witness is necessary to an ongoing criminal proceeding falls squarely within the prosecutor's "traditional functions as an advocate," which includes deciding "which witnesses to call," according to Katyal.

The Supreme Court has found that absolute immunity protects prosecutors from liability when performing the following duties: the professional evaluation of evidence collected by the police; appropriate presentation of evidence at trial; whether to present a case to the grand jury; when to prosecute a case; when to dismiss a case; what evidence to present; and, most importantly in this case, which witnesses to call.

Al-Kidd's attorney suggested that his client should be allowed to prove that Ashcroft had a policy of misusing the material witness process.

But if determining which witnesses to call is a core prosecutorial function, then Ashcroft's motive in seeking material witness warrants is of no consequence.

The "functional" test for absolute immunity is an objective one. It does not matter what the attorney general's subjective motive was in seeking a material witness warrant, the motive is irrelevant even if Ashcroft were acting in bad faith, he is still immune from suit. The Supreme Court has ruled that anything other than an objective standard would effectively defeat absolute immunity.

Al-Kidd's claim may cause some to pause and ask how an innocent American citizen can be detained for two weeks without being charged. Unfortunately, when the Supreme Court renders a decision in this case, it will not provide an answer to that question. More than likely, the Supreme Court's decision will foreclose al-Kidd from ever getting an answer.

Full Article:

Monday, March 14, 2011

Ohio Governor: Privatize State Prisons? is reporting that Ohio Governor John Kasich is looking to begin to privatize state prisons.

The Governor may announce his intention this week as part of his budget proposal. The Columbus Dispatch is reporting the Governor intends to sell three to five state prisons to private entities. Kasich's first budget proposal will roil the landscape, the paper says, especially the public, nonprofit and private entities that count on the state's largesse. There is a projected $8 billion hole in the next two-year state budget, and Kasich won't fill it with tax increases.

The budget will be announced tomorrow.

How serious is the prison problem in Ohio? Ohio's prison inmate population has grown by more than 500 percent since 1972 and is projected to soar to 53,992 by July if proposed sentencing changes and alternatives to punishment aren't passed by the General Assembly.
Prison spending typically outpaces spending by most other state agencies – totaling $53 billion nationwide last year, and averaging $1.6 billion a year in Ohio. That’s up from $480 million in 1991 and $1.4 billion in 2001. About one of every four state employees works for the Ohio Department of Correction and Rehabilitation Services, reported last April.

Sunday, March 13, 2011

Jordan Brown Gets New Hearing on Adult Trial

PA Superior Court Rules 11-Year-Old's Constitutional Rights Violated

Jordan Brown the 11-year-old Lawrence County boy accused of killing his father's fiancee will get a new hearing on whether or not he should be tried as an adult.

According to the Pittsburgh Post-Gazette, Superior Court Judges Judith Ference Olson and Cheryl Lynn Allen formed a majority, agreeing with defense arguments that Jordan, who claims innocence, cannot be denied a trial in juvenile court for not saying he is remorseful. The judges vacated the lower court ruling and ordered that another hearing be held to determine whether Jordan should be tried as an adult or a juvenile.

Last year, a county Common Pleas Court Judge ruled that Brown should be tried in the adult court because he refused to take responsibility for the crime and therefore was not amenable to rehabilitation in the juvenile justice system. If Brown were convicted of first degree murder he face a mandatory sentence of life in prison without the possibility of parole. He would be the youngest person in the U.S. to face life in prison.

According to the Post-Gazette, the Superior Court found, "By finding that Appellant had to admit guilt or accept responsibility for his actions as a condition to proving that he was amendable for [juvenile] treatment, the trial court placed Appellant in a situation that needlessly encouraged Appellant to sacrifice his Fifth Amendment rights against self-incrimination," Judge Allen wrote in the 49-page majority opinion.

Judge Robert E. Colville dissented, writing in the minority opinion there was no evidence that Jordan ever sought to invoke his right against self-incrimination. But even in dissent, Judge Colville said the case raised for him "important and complex questions as to the interplay between the Fifth Amendment and the juvenile decertification and transfer process."

To read more:

Saturday, March 12, 2011

Legislative Exercise in Futility: Bill to Ban Death Penalty in Ohio

Ohio State Representative Ted Celeste, a Democrat, is scheduled to unveil proposed legislation banning Ohio's death penalty , according to the Associated Press. Celeste's brother, former Governor Richard Celeste, a death penalty opponent, commuted the death sentences of four men and four women before leaving office in 1990.

Celeste's bill calls for a review of the death penalty by a Supreme Court justice, two former prisons directors, and a former attorney general. Although Celeste may be sincere in his efforts to abolish the death penalty his bill is a legislative exercise in futility.

The likelihood of the Celeste's bill passing the Republican-led Ohio House is not good. Ohio is literally setting the standard nationwide for the death penalty. Last year, Ohio executed eight offenders second only to Texas, the perennial leader in executions. Ohio has executed two offenders in 2011 and has ten executions scheduled for the year. Ten executions would be a modern record for Ohio.

Ohio was the first state to move from a three drug protocol for lethal injection to a single drug protocol and this week Ohio became the first state to executed an offenders with a single lethal dose of pentobarbital. Also, Governor John Kasich is an ardent support of capital punishment.

However, Celeste is not without allies. Ohio Supreme Court Justice Paul Pfeifer, one of the authors of Ohio's death penalty statute as a state senator, has recently come out in opposition to the death penalty. I wrote a column for the Youngstown Vindicator regarding Justice Pfeifer's decision,

Friday, March 11, 2011

Budget Shortfalls and Juveniles Charged as Adults

While tough-on-crime laws from the 1980s and ’90s automatically sent many 16- and 17-year-old defendants to adult courts for trial, the trend today seems to be going in the other direction, according to the Christian Science Monitor.

In the past four years, Rhode Island, Connecticut, Illinois, and Mississippi have passed laws that now refer certain 16- and 17-year-old defendants to juvenile courts; instead of automatically sending them to adult courts. This year, Massachusetts, Wisconsin, and North Carolina may also reverse course.

Two rulings by the Supreme Court support these conclusions. In 2005, the Court overturned the death penalty for youths under 18. Last year, it banned life-without-parole for those under 18 who are convicted of crimes short of murder, according to the Christian Science Monitor. In both cases, the justices recognized “fundamental differences between juvenile and adult minds,” as Justice Anthony Kennedy wrote last year.

Studies show that youths are less able to control their impulses, to consider consequences, and assess risk than adults. Research also shows the negative fallout – for society and for offenders – of putting minors through the adult legal system.

According to the Christian Science Monitor, youths in adult facilities, for instance, can experience more physical abuse and suicide than those in the juvenile system. Higher percentages of minors tried as adults also commit repeat offenses – and more violent ones – than for comparable youths who go through juvenile courts. That’s because the juvenile system offers more support and rehabilitation services. And juvenile court records are sealed, giving an ex-offender a better chance to get a job once outside the system.

Most states are facing budget shortfalls that will change the dynamics in terms of youthful offenders. Many policy makers who have succeeded by being ‘tough on crime’ now face the reality of having to rethink their crime policy with fewer resources. That has meant early release for some adult prisoners as a means of saving correction costs. It may also means less likelihood of getting arrested because of fewer police officers after layoffs to save money.

What will it mean for juveniles charged as adults? Sometimes the cost of juvenile placement and treatment can be more costly than adult incarceration. Will the budget squeeze work against juveniles. Will policy makers be less likely to change the way juveniles are treated because adult incarceration is cheaper than juvenile placement?

It will be interesting to see if the movement in a few states in adopted across the board.

To read more:

Thursday, March 10, 2011

Ohio Carries Out Execution With Single Dose of Pentobarbital

The 9th Execution of 2011

Johnnie Baston a convicted killer from Ohio became the first person in the United States to be executed with a single dose of pentobarbital, an animal tranquilizer that is normally used in combination with other drugs.

Baston was convicted of the 1994 murder of a Korean grocery store manager. He was pronounced dead at 10:30 a.m. at the Southern Ohio Corrections Facility in Lucasville, the home of Ohio's death chamber.

Ohio was the first state with the death penalty to move from a three-drug protocol for lethal injection to a single-drug protocol. Beginning with an execution in November of 2009, Ohio used a single dose of sodium thiopental. Ohio carried out ten executions using only sodium thiopental.

Oklahoma is the only other state to use pentobarbital, but they use in conjunction with other drugs. Washington adopted Ohio's single-drug protocol, and the two remain the only state using the single-drug protocol. It is unclear whether Washington will move to the pentobarbital for executions.

Ohio Adopts New Execution Prep Procedure

Ohio has made some changes to its execution procedure in an effort to make the process more public and give inmates speedier access to attorneys in case something goes wrong when the inmate is being prepared for lethal injection.

Ohio has had a problem in a handful of cases while inserting IVs, including the botched 2009 execution of Romell Broom. The governor stopped the failed needle insertion procedure after two hours, according to the Associated Press.

Broom complained that he was stuck with needles at least 18 times and suffered intense pain. He has sued, arguing a second attempt to put him to death would be unconstitutionally cruel.

Under Ohio's new procedure, an attorney concerned about how an execution is going could use a death house phone to contact a fellow lawyer in a nearby building with access to a computer and cellphone to contact courts or other officials about the problem,according to a spokesman for the Ohio Department of Rehabilitation and Correction.

A lawyer who chooses to witness an execution now has immediate access to a phone if he or she believes something is going wrong. Judges will have the final say on problems, which will limit abuse of the system.

Although the prisoner will now be just a few feet from witnesses as the needles are inserted, a curtain will be drawn and the procedure will still be shown on closed-circuit televisions (CCT) in the witness viewing area. Using the CCT is meant to protect the anonymity of the executioners and to reduce the pressure they might feel having an audience watching them work, reported the Associated Press.

Even before the change, Ohio had one of the most transparent execution procedures in the country. Several states, such as Missouri, Texas and Virginia, show nothing of the insertion procedure and allow witnesses to watch only as the lethal chemicals begin to flow. In Georgia, officials allow one reporter to watch the needle insertion process through a window.

The new procedure will be used today for the execution Johnnie Baston.

To read more:

Wednesday, March 9, 2011

New 'Castle Doctrine' Bill Passes PA Senate

The Pennsylvania Senate passed an expanded Castle Doctrine bill this week by a vote of 43-4 according to the Associated Press. The Senate passed a similar bill passed last fall but thwe bill was vetoed by Governor Ed Rendell. He feared it would lead to more violence. The Pennsylvania District Attorneys Association was also opposed to the bill.

According to the Associated Press, the bill provides that a person would no longer be required to retreat or find a safe place from danger before he or she resorts to deadly force outside their own home. The law currently applies inside the home. The proposed bill would expand existing law known as the "castle doctrine."

Under the bill, shooters would get the presumption of having acted legally if they could prove they reasonably believed they were in imminent danger. The bill now goes to the House of Representatives.

To read more:

Illinois Abolishes the Death Penalty

Illinois Governor Pat Quinn signed landmark legislation to repeal the state’s “seriously broken” death penalty and then commuted the death sentences of the 15 men currently on death row,reported the Chicago Sun-Times.

“We cannot have a death penalty in our state that kills innocent people,” Quinn said. “If the system cannot be guaranteed 100 percent error free, then we cannot have the system. It cannot stand. It just is not right.”

“I felt once the decision was made to sign the law abolishing the death penalty, it should be abolished for all,” Quinn said of commuting the existing death sentences, reported the Sun-Times. “I do believe the evil-doers should be punished severely in prison without parole ... but without the death penalty.”

Illinois joins 15 other states without the death penalty.

To read more:

African American Homicides Represent All of NYC's Homicide Increase

According to the Wall Street Journal, a 31 percent spike in murders of African-Americans in 2010 accounted for all of last year's 14 percent increase in homicides in New York City.

African Americans, who comprise 25 percent of the city's population, accounted for 67 percent of the 536 murders in 2010, according to the report released by the New York Police Department. African American men 15 to 29 years old were most likely to be killed. They make up less than 3 percent of the city's population but last year represented 33 percent of all homicide victims, according to the Wall Street Journal.

The number of Hispanic and Asian murder victims remained "nearly constant," the report states, while the number of murdered whites decreased by 27 percent from 2009 to 2010.

Ric Curtis, an anthropology professor at John Jay College of Criminal Justice, told the Wall Street Journal he and his colleagues were asked by the Brooklyn District Attorney's Office last year to explore whether gangs are behind the spike; some 11 percent of all murder victims were gang members. But Mr. Curtis said he doesn't necessarily think gangs are to blame. "Whatever it is, it's complex because it's not readily apparent what is causing it."

The murder rate for whites decreased another 27 percent in 2010, that is remarkable. Last fall I wrote about a New York Times article that found from 2003 through 2009, New York City averaged 540 murders a year. White men and women represented, on average, 8 percent of murder victims and 7 percent of killers. That would amount to about 43 white victims of murder each year and about 37 killings by white perpetrators per year, Forty-three white victims of murder in a city of 8.5 million people.

New City is a very safe place to live if you happen to be white, not so safe if your a young black man. New York City, which touts its dramatic decrease in violent crime, should more closely examine violence in terms of race, not just overall violence.

To read more:

Tuesday, March 8, 2011

SCOTUS: Inmate may use Federal Civil Rights Law for DNA Testing

The U.S. Supreme Court ruled that a Texas inmate sentenced to die for killing his girlfriend and her two adult sons can ask to test crime-scene evidence he says may show he is innocent, reported the Associated Press.

Hank Skinner was convicted of killing his girlfriend, Twila Busby, 40, and her two sons, Elwin “Scooter’’ Caler, 22, and Randy Busby, 20. Skinner sued the district attorney seeking the right to perform genetic testing on evidence found at the scene of the triple slayings in a home in Pampa in the Texas Panhandle on New Year’s Eve 1993.

Edward Dawson, an attorney for District Attorney Lynn Switzer, whose office prosecuted Skinner’s capital murder case, said he was disappointed with the ruling but told the Associated Press that the ruling is "a pretty narrow decision on the procedural point.’’

“We think it left open the question of whether or not Skinner can actually get access to the evidence,’’ Dawson told the Associated Press. “I think there are some strong arguments that he ultimately may not be able to.’’

Like nearly every other state, Texas has a law that allows prisoners to have DNA testing on evidence long after their conviction. Skinner tried and failed twice to invoke the state law to get at the evidence. He then filed the federal lawsuit, saying that the state had deprived him of his rights.

Prosecutors have opposed the testing request, contending it would not prove anything, and branded the civil rights action an effort by Skinner to delay his punishment. He’s been on death row since 1995.

Justice Ruth Bader Ginsburg, writing for the majority, said inmates may use a federal civil rights law to seek DNA testing that was not performed before their conviction. The case now will be returned to a federal district court to consider whether Skinner’s claim has any merit.

To read more:

78-Year-Old Sex Offender Submits to Castration in Exchange for Freedom

Convicted pedophile Francis Tullier, 78, cut his prison sentence in half - and that's not all - as he underwent voluntary castration as part of a plea deal to free him after 12 years behind bars, according to CBS News.

Tullier pleaded guilty in 1999 to three counts of molestation involving young girls. Tullier admitted abusing three girls, ages 6 to 12, during the 1970s and 80s. As part of the plea deal, he agreed to have his testicles surgically removed.

In October, he expressed reluctance to go through with physical castration. According to court transcripts, the judge replied, "It's time to give Caesar what Caesar is owed." The operation took ten minutes and was done at Tullier's expense.

Tullier's lawyer, Nathan Fisher, told CBS News, "They had enough [evidence] to send him up for two or three life sentences. He had no chance of getting out of prison unless we did something unusual."

The Baton Rouge Advocate reported Tullier is due for release next week. He will have to register as a sex offender and plans to stay in Louisiana. If he hadn't gone under the knife, Tullier would have been in prison until 2024.

Major Richie Johnson of the West Baton Rouge Parish Sheriff's Office was happy with the outcome. He told CBS News, "I'm not aware of any other cases of physical castrations in the state," he said, "but I wish we'd use it more often."

Monday, March 7, 2011

U.S. Supreme Court Takes On Criminal Justice Issues

I recently wrote about the U.S. Supreme Court’s decision with regard to the Confrontation Clause and what appears to be the new 'emergency’ exception carved out by the Court. My column on the subject for the Youngstown Vindicator can be found at,

Here are some other law and order issues that the Court will or has taken up this session, according to ABC News.

Material witness statute Nearly eight years ago Abdullah Al-Kidd, an American citizen and former football player at the University of Idaho, was arrested by the FBI and held for 15 days because of his connections to a suspected terrorist. Al-Kidd was never charged with a crime and is now seeking to sue former Attorney General John Ashcroft arguing that he was improperly detained. The U.S. government, representing Ashcroft, argues that Ashcroft should receive immunity from such suits. This case was argued before the high Court last week. Look for a more detailed examination of this case and prosecutorial immunity that I wrote for the Pennsylvania Law Weekly.

Child abuse The Court will decide whether police and social workers must obtain a warrant before interviewing a child in public school about suspected sexual assault in the home. A lower court concluded that such an interview in Oregon was unconstitutional because the officials failed to obtain a warrant based on probable cause. Child protective agencies say obtaining a warrant is often impossible when the suspected abuser is a parent.

Death penalty & DNA Henry Skinner was convicted of killing his girlfriend and her two adult sons in 1995 and sentenced to death. I wrote about Skinner’s case last fall, Within a few hours of his execution the Supreme Court stepped in and agreed to hear his appeal. Skinner argues that he should be able to test DNA material found at the crime scene. He is asking the Supreme Court to decide the narrow issue of whether he can bring his claim under the Civil Rights Act. If Skinner wins it could open up a new legal avenue for those on death row challenging their sentences.

Prison overcrowding The state of California is arguing that a federal court order mandating the state to reduce the prison population by 40,000 over two years is too drastic, and will endanger public safety. The case stems from two lawsuits that have been wending their way through the courts for years, challenging the health care available in the overcrowded prison system.

Sunday, March 6, 2011

An 'emergency' exception to the Sixth Amendment

Youngstown Vindicator
Sunday, March 6, 2011

The U.S. Constitution guarantees those accused of a crime the right to face their accusers in court. A decision last week by the U.S. Supreme Court created an exception to that basic right when the court ruled that prosecutors may use victim statements given at a crime scene even if the victim dies before testifying at trial.

The decision is a step back from a recent series of high court decisions that the Sixth Amendment demands witnesses be subject to cross-examination. In last week’s decision, the court drew a distinction between statements made during an emergency and statements made when police are investigating a crime.

The Confrontation Clause of the Sixth Amendment includes the following, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Those words are as well known as any in the U.S. Constitution and they provide the most basic safeguards that exist in American jurisprudence.

Statements made out-of-court, often referred to as hearsay, may not be used to convict someone accused of a crime unless the accused has an opportunity to confront and cross examine the person who made the out-of-court statement. Cross examination insures that the trier of fact has adequate information to judge the reliability and the believability of the witness’ testimony.


There are exceptions to this very fundamental right. A 1980 Ohio decision played a prominent role in carving out exceptions. In Ohio v. Roberts, the U.S. Supreme Court found when a witness was unavailable, that witnesses’ testimony could be admitted through a third person if the testimony was reliable or had “particularized guarantees of trustworthiness.”

In 2004, the U.S. Supreme Court tightened the tenets of the Confrontation Clause. In Crawford v. Washington, the court ruled that an out-of-court statement made by the wife of the accused, who refused to testify against her husband at trial, could not be used at trial.

Justice Antonin Scalia wrote in Crawford, “the only [indicia] of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Justice Scalia believed nothing short of appearing in court and being cross examined was sufficient to pass constitutional muster.

In 2008, the Supreme Court confirmed continued strict adherence to the Sixth Amendment. The Supreme Court would not admit an out-of-court statement of prior domestic violence, from a deceased victim of murder, at the murder trial.

The Supreme Court’s decision last week in Michigan v. Bryant provides an interpretation of the Confrontation Clause that seems to run contrary to the Court’s recent string of decisions.

In 2001, Detroit police were called to a gas station where a man lay bleeding with a gunshot wound. According to the Washington Post, when asked what had happened, he told police, “Rick shot me.” Within minutes, police determined that Richard Bryant had shot the victim and the victim drove to the gas station for help.

Justice Sonia Sotomayor, writing for the majority found an exception to the Confrontation Clause for statements made while police are involved in an “ongoing emergency” in which there is a “potential threat to the responding police and the public at large.”

‘Primary objective’

The victim’s statement was made to police while their “primary objective” was looking for a gunman, not trying to solve a crime, Justice Sotomayor wrote. Judges may use their discretion to determine when such statements are admissible at trial.

Justice Scalia suggested that the majority had left the court’s Confrontation Clause jurisprudence “in shambles” and that instead of clarifying the law, the court has made the law more confusing by giving trial judges discretion on a case-by-case basis. Justice Scalia wrote, “The guarantee of confrontation is no guarantee at all.”

Justice Sotomayor seems to have carved out a new exception to the admission of out-of-court statements. The “ongoing emergency” exception will soon be added to the list of hearsay exceptions that exist in the rules of evidence adopted by the various states.

Saturday, March 5, 2011

Ohio Schedules Record Tenth Execution for 2011

The Ohio Supreme Court set three execution dates this week. Only one of the three executions is scheduled for 2011. Overall, there are 10 executions scheduled in Ohio for 2011. There is one execution a month scheduled through November.

If all 10 executions are carried out, it will be the most in Ohio since the death penalty was reinstated in 1999. Ohioans would have to go back 61 years to find a year with more than executions. According to the Columbus Dispatch, 15 men died in the electric chair in 1949.

Ohio executions are carried out through lethal injection at the Ohio State Corrections Facility at Lucasville. This month Ohio intends to be the first state in the nation to carry out an execution using a single lethal dose of pentobarbital.

Frank Spisak of Cuyahoga County was executed on February 17. The self proclaimed Nazi killed three people on or near the Cleveland State University campus in 1982.

According to the Dispatch, a 2011 execution date was scheduled for Reginald Brooks of Cuyahoga County, who murdered his three sons, ages 17, 15 and 11, in their home on March 6, 1982. He is scheduled to die on November 15, 2011.

Last year, Ohio's eight executions were second in the nation to Texas' 17. The eight executions were also the most execution carried out in Ohio since the death penalty was reinstated.

To read more:


Friday, March 4, 2011

Supreme Court Examines Limits of Prosecutorial Immunity

This week, the U.S. Supreme Court listened to arguments about whether to allow former Attorney General John Ashcroft to be sued by Abdullah al-Kidd, an American Muslim, who was arrested and detained using a law intended to make sure witnesses testify in criminal proceedings, according to the Associated Press.

The various Circuit Courts of Appeals have split on whether an arrest under a material witness warrant like the one used on al-Kidd in 2003 was constitutional. The issues before the court are whether prosecutors should continue to have absolute immunity from civil law suits when performing prosecutorial functions and is a material witness warrant a protected function.

The law is settled on the issue of protected prosecutorial functions, for which prosecutors may not be sued. The Court in Imbler v. Pachtman, 424 U.S. 409 (1976) acknowledged that absolute immunity may “leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” But the Court expressed agreement with Judge Learned Hand, who observed that it is “in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949).

The question for the Supreme Court is whether or not taking a material witness into custody, even as a pretext for investigating the detained witness, is a protected prosecutorial function.

To read more:

Thursday, March 3, 2011

CA Death Row Inmates Likely to Die of Something Other than Lethal Injection

Death Row Inmates More Likely to Die of Old Age, Disease or Suicide

Earlier this week Richard Ray Parson died of natural causes in a California prison. Not an entriely unusual situation. Except Parson was on California's death row, and more people die of natural causes and suicide on California's death row than die by execution.

The death penalty returned to California in 1978. Since then the state has executed 13 killers, while 53 have died of disease, old age or other natural reasons. Another 18 have committed suicide, according to the San Francisco Chronicle.

There are 712 men and women on California's death row, more than any other state in the nation. The last person to die by lethal injection was Clarence Ray Allen, in January 2006.

According to the Chronicle, Parson was sent to Death Row from Sacramento County in 1996 for robbing and killing a 59-year-old nurse. He beat her to death with a hammer in her Sacramento apartment.

To read more:

Wednesday, March 2, 2011

Plan to Arm Prosecutors a Bad Idea

North Carolina legislators are considering a bill that would permit prosecutors to carry guns while in the courtroom. As a former prosecutor, I find the the idea of armed prosecutors repugnant and potentially prejudicial to those standing trial.

In Pennsylvania for instance, police officers who testify at trial can not wear their uniform or sidearm because jurors might infer a greater amount of authority from the badge, gun or uniform. If a juror observes an assistant district attorney packing a gun, could jurors impute greater dangerousness to the accused.

If North Carolina is worried about its prosecutors, and there is no question that prosecutors can be the target of threats or even violence, then the state should beef-up courtroom security, keep guns out of the courtroom and better train security guards.

North Carolina Senate Bill 141 would require district attorneys, prosecutors and investigators to obtain a valid concealed handgun permit or maintain a basic law enforcement training certification. They would then be exempt from the ban on carrying concealed weapons on certain premises, such as the county courthouse.

District Attorney Rick Shaffer acknowledges the inherent danger of prosecuting those suspected of committing violent crimes.

"There are times that prosecutors are dealing with very dangerous people," he told the Greesboro News-Record. "I've had death threats. It's an occupational hazard."

Permitting prosecutors to carry guns in the courtroom seems like a solution in search of a problem. How many times in North Carolina, or around the country for that matter, are prosecutors subject to violent attacks in the courtroom, an attack that would necessitate the use of deadly forces?

Armed attacks in the courtroom are often the result of a defendant wresting control of a gun from an armed law enforcement officer. Those guns are taken from individuals who are trained to be focused on protecting the people in the courtroom. Would an armed prosecutor be vulnerable when a defendant or other person in the courtroom is determined to get her gun while the prosecutor is focused on her notes, law books, evidence, witnesses, the judge or jury?

To read more:

Tuesday, March 1, 2011

Oregon: Crime Down, Fear Up

In Oregon, the rate of violent crime and property crime are lower than they've been since the 1960s and they continue to fall statewide and nationally. That’s right, crime rates have fallen consistently for over a decade, literally to their lowest level in half a century.

However, when Portland State University (PSU) surveyed 1,569 Oregon adults, 52 percent said they believe crime is on the rise, according to the Oregonian.

In the PSU survey, only 10 percent of respondents said they believed the crime rate had dropped during the preceding year, while 38 percent said they thought the rate had stayed the same. Researchers figured the margin of error at about 2.47 percentage points.

Respondents who said they thought crime had climbed were more inclined to define themselves as conservative. They typically did not have bachelor's degrees, reported their family income at less than $50,000 and said they were dissatisfied with the criminal justice system, reported the Oregonian. Another words, Republicans who have made huge political strides by pushing for harsher enforcement of criminal statutes believe crime is on the rise. In fact, of the group that thinks crime is rising, 45 percent ranked punishment and enforcement as top crime-control measures.

The gaping disparity between perception and reality, Brian Renauer told the Oregonian, can affect everything from public policy to law enforcement's ability to keep the public safe -- even simple livability and peace of mind. Renauer, associate professor of criminology and criminal justice, directs PSU's Criminal Justice Policy Research Institute, which conducted the telephone survey from June 15 to July 27 last year.

According to the Oregonian, sociologists long have studied fear as an indirect effect of crime, and conclude it has contributed to everything from political campaigns with a law-and-order bent to the rapid growth of gated communities and the security industry.

Some studies show a strong correlation between fear of crime and media consumption -- from the abundance of crime reports in newspapers and on TV to the plethora of forensics and cop dramas on the tube night and day.

A 2009 Purdue University survey found that those who watched lots of crime shows estimated real-world deaths due to murder at 2 1/2 times more than non-viewers.

To read more: