Friday, September 30, 2011

Two-Thirds of Californians Support Death Penalty

More than two-thirds of California voters – 68 percent – favor keeping the death penalty, a new poll found, with 27 percent favoring abolition and 5 percent expressing no opinion, according to the Sacramento Bee.

"We've polled on this for 55 years," Field Poll director Mark DiCamillo told the Bee. "It's changed a little here and there, but just removing the death penalty as a potential punishment is opposed. That's pretty clear."

Death penalty opponents launched an effort in August to replace capital punishment with a sentence of life in prison without the possibility of parole, something they said would save the state millions of dollars each year.

Despite that, those in favor of abolishing it say they believe they can convince voters that the death penalty is too costly and should be replaced with a sentence that guarantees a prisoner will remain incarcerated for life, reported the Bee.

"I think there's a decent chance," Sacramento attorney Don Heller told the Bee.  Heller wrote the voter-approved measure that reinstated the death penalty in California in 1976 and who now supports abolishing it. In announcing their ballot measure campaign in August, opponents of capital punishment said California spends $184 million annually on the death penalty.

But crime-victim advocate Harriet Salarno scoffed at the argument that the death penalty is too costly, saying the costs are increased by opponents pushing for repeated legal appeals. She added that the latest poll results simply confirm what California voters have supported for years, reported the Bee.

Thursday, September 29, 2011

The Trial Penalty: How Prosecutorial Authority has Made Trial Obsolete

In the courtroom and during plea negotiations, many practitioners warn of the “trial penalty.” According to the New York Times the phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.
In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.
“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” Rachel Barkow, a professor of law at New York University told the Times. “And prosecutors who are starved for resources want to use that leverage. And so now everyone acts with the assumption that the case should end with a plea.”
“When you have that attitude,” she said, “you penalize people who have the nerve to go to trial.”
Prosecutors say they are giving defendants options and are merely charging them based on what is allowed under the law for those who turn down pleas.
While legal experts say the effect is clear in persuading more defendants to forgo trials, the trial penalty is hard to quantify without examining individual cases and negotiations between prosecutors and defense lawyers, reported the Times.
That is because threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.
“How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” Senior Judge John L. Kane Jr. of United States District Court in Denver told the Times.
Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.
“We now have an incredible concentration of power in the hands of prosecutors,” Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina told the Times. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. According to the Times, growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.
Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts, reported the Times.

Wednesday, September 28, 2011

Pennsylvania Advisory Committee on Wrongful Convictions

Report of the Advisory Committee on Wrongful Convictions:

Independent Report of Law Enforcement and Victim Members of the Advisory Committee on Wrongful Convictions:

Furloughed NJ Police Officers Remain Unemployed

Union Leader Warns of 'Riots in the Streets' 
     Throughout New Jersey, a total of 705 police officers laid off since January have been unable to find work in law enforcement again, according to a survey conducted by the State Policemen’s Benevolent Association, the state’s largest police union. The survey includes all officers, not just those represented by the union, according to the Star-Ledger.
     This month, Trenton laid off 105 of its city police officers, a third of the force. Police forces in other economically depressed large cities have suffered a similar fate. In Camden, more than half of the 93 total officers laid off earlier this year haven’t found new jobs in law enforcement, said the local police union president John Williamson.
     Last month, Williamson sounded an alarming tone by warning of possible riots in the streets if more officers were not rehired. Williamson said he stands by those words today. "This is not fear mongering," he told the Star -Ledger. "Based on my observations and history in the U.S. and in the world, where people feel desperate and impoverished, they tend to let out their frustrations."
     In Paterson, only a handful of their 125 officers laid off in April have found police jobs, according to state PBA figures. Atlantic City police appears to be the only bright spot; it hired back 57 of the 60 officers laid off last year.
     "It’s indicative of how bad the economy is that more of these officers haven’t been able to find jobs," James Stewart Jr., vice president for Newark’s Fraternal Order of Police, told the Star-Ledger. "There aren’t too many cities that wouldn’t otherwise welcome these fully-trained men and women in the prime of their careers."

Tuesday, September 27, 2011

Arizona Liberal Gun Laws and Rising Murder Rate

Arizona's gun laws, among the most lenient in the country, allowed Jared Loughner to conceal and carry his firearm without a permit and show up at an event and attempt to kill a U.S. congresswoman while killing six other innocent people.

Washington Post reporter James Grimaldi, a Pulitzer Prize-winning investigative reporter, told Terry Gross of NPR's Fresh Air, "Essentially, there is very little obstacle to purchasing a weapon in the state of Arizona." Grimaldi went on to say, "There are laws that require you, federally, to be at least 21 years old to purchase a handgun. But basically state law permits anyone 21 and older to own a firearm and also, to carry it concealed in the state. That's different than many other states, many of which have stricter gun laws."

So have Arizona's liberal gun laws had an impact on crime.  You bet, but not what you might think. 

In Arizona, violent crime modestly decreased below the national average in 2010.  Nationwide violent crime fell 6.5 percent in Arizona violent crime fell by only 3.1 percent.  However, the FBI's annual Uniform Crime Report shows that murders  increased in Arizona by 16 percent from 2009 to 2010. This increase contrasts with the a 4.8 percent nationwide decrease during the same period.

Monday, September 26, 2011

Alabama Carries Out 5th Execution of 2011

The 36th Execution of 2011

Derrick O'Neal Mason was executed by lethal injection at 6 p.m. at Holman Correctional Institute in Atmore, Alabama, according to the Huntsville Times. He was pronounced dead at 6:49 p.m.
In the final hours before the execution, Mason refused to eat breakfast and he wasn't expected to eat dinner, either, prison officials said. He did not request a special last meal, saying he was fasting today. Several people visited him at the prison, and five of Mason's family members were expected to witness the execution, while four of the victim's relatives were set to be witnesses. Their names were not released.

Mason apologized to the victim's family in his final statement. It was his second apology to the family -- the first was via letter two or three years after Cagle's death, and was issued out of "deep remorse and sadness," according to the executive director of Project Hope to Abolish the Death Penalty.

According to the Times, Mason's lawyers filed emergency appeals with the Alabama Supreme Court and the U.S. Supreme Court asking that his scheduled execution be postponed for further review of his death penalty sentence. Those appeals were denied.

To read more:

Making Sense of Murder Rates

The FBI released its annual report on crime in America.  Homicide is down 4.8 percent.  There were 14,748 murders nationwide in 2010.  That number is down considerably within just the last decade and about 651 less than 2009.  However, what is also down in the clearance rate or the number of homicides which are solved.

According to the FBI, only 64.8 percent of homicides were cleared in 2010.  That means that 5,997 murders in 2010 remain unsolved.  Right now in America there are nearly 6,000 killers, just from 2010, who are walking the street.

Homicide statistics can be difficult to analyze.  Pennsylvania and Ohio are neighboring states with similar demographics and very dissimilar homicide figures.  Ohio had 57 less murders in 2010, a decrease of 9.7 percent.  Pennsylvania had only 7 less murders in 2010 for a decrease of only 1.1 percent.

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Sunday, September 25, 2011

Texas Death Row: State Dishes Out 'Last" Final Meal

Texas inmates who are set to be executed will no longer get their choice of last meals, a change prison officials made last week after a prominent state senator became miffed over an expansive request from a man condemned for a notorious dragging death, according to the Associated Press.

Lawrence Russell Brewer, who was executed on September 21, 2011 for the hate crime slaying of James Byrd Jr. more than a decade ago, asked for two chicken fried steaks, a triple-meat bacon cheeseburger, fried okra, a pound of barbecue, three fajitas, a meat lover's pizza, a pint of ice cream and a slab of peanut butter fudge with crushed peanuts. Prison officials said Brewer didn't eat any of it.

"It is extremely inappropriate to give a person sentenced to death such a privilege," Senator John Whitmire, chairman of the Senate Criminal Justice Committee, wrote in a letter to Brad Livingston, the executive director of the Texas Department of Criminal Justice.

Within hours, Livingston said the senator's concerns were valid and the practice of allowing death row offenders to choose their final meal would be discontinued.

While extensive, Brewer's request was far from the largest or most bizarre among the 475 Texas inmates put to death, reported the Associated Press.

Last week, prisoner Cleve Foster's request included two fried chickens, French fries and a five-gallon bucket of peaches. He received a reprieve from the U.S. Supreme Court but none of his requested meal. He was on his way back to death row, at a prison about 45 miles east of Huntsville, at the time when his feast would have been served.

The week before, inmate Steven Woods' request included two pounds of bacon, a large four-meat pizza, four fried chicken breasts, two drinks each of Mountain Dew, Pepsi, root beer and sweet tea, two pints of ice cream, five chicken fried steaks, two hamburgers with bacon, fries and a dozen garlic bread sticks with marinara on the side. Two hours later, he was executed.

To read more:

Saturday, September 24, 2011

The Cautionary Instruction: Falling Crime Rates: Do We Know What We Think We Know Do?

Pittsburgh Post-Gazette/Ipso Facto
September 24, 2011

According to two reports released this week violent crime continues its downward spiral. The FBI released its Crime in the United States report. In 2010, violent crime dropped 6 percent, the fourth consecutive year violent crime declined. The report is based on information provided by more than 18,000 city, county, university, state, tribal, and federal law enforcement agencies. Most importantly, the report contains information on the number of reported crimes, including murders, rapes, robberies, aggravated assaults and burglaries.

A second report, the National Crime Victimization Survey, gathers information on nonfatal crimes by questioning a nationally representative sample of U.S. households. The report found that violent crime fell by an even greater 12 percent nationwide last year.

The continued decline in violent crime is forcing some criminologists to reexamine their theories on the causes of crime. “It will be years before we get the answer, if we do, to what’s going on right now,” said Professor William Pridemore from Indiana University in Bloomington. “Criminologists have been pretty stumped.”

Could there be a black market in victimization -- an underground crime industry that is neither reported to police nor disclosed in a victimization survey?

The culture in some neighborhoods of not cooperating with police -- the idea that the “snitch” is both in danger and a neighborhood pariah -- has surely had some impact on crime reporting.

Last year, Pittsburgh’s decline in violent crime was even greater than the national average. The city saw a 9 percent drop in violent crime. Among violent crimes, robberies were down nearly 13 percent in 2010, and citywide aggravated assaults were down 4.2 percent.

Yet, last year murder was up 41 percent in Pittsburgh. Murder cannot go unreported. However, a drug dealer being robbed at gun point can and does go unreported. A home invasion, an assault, a shootout among rival gangs, most assuredly is going unreported.

National clearance rates for murder and manslaughter have fallen from about 90 percent in the 1960s to below 65 percent in recent years. Experts say that homicides are tougher to solve now because crimes of passion, where assailants are easier to identify, have been replaced by drug and gang-related killings. Many police chiefs -- especially in areas with rising numbers of unsolved crimes -- blame a lack of witness cooperation.

If witnesses are reluctant to cooperate in a murder investigation, it is reasonable to assume witnesses are equally reluctant to cooperate or report robberies, assaults and threats. In light of that reluctance, are we getting a true picture of the safety and security of our neighborhoods?

Visit Ipso Facto

Friday, September 23, 2011

Life Doesn’t Mean Life in California

Inmates serving life with the possibility of parole in California, mostly convicted murderers, spend an average of 20 years in prison and almost never commit new crimes after being released, according to the San Francisco Chronicle.
A report by the Stanford Criminal Justice Center at the university's law school, issued last week, also found that the state Board of Parole Hearings has become increasingly willing to set release dates for "lifers" in the last few years. But those dates have often been vetoed by the governor, under a voter-approved law that has parallels in only three other states, the report said.
Release rates are likely to increase, however, under Governor Jerry Brown. Through April, Brown had overruled fewer than 20 percent of the parole dates approved by the board, which is composed mostly of former law enforcement officers and prison officials. The comparable veto rates were 70 percent for Governor Arnold Schwarzenegger and 98 percent for Governor Gray Davis.
Life in Pennsylvania means life.  An offender sentenced to life in prison after a conviction of first or second degree murder is not eligible for parole in Pennsylvania.

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Thursday, September 22, 2011

Wrongful Conviction Committee Releases Report After 4 Years

Consensus Not Reached:  Dueling Reports Provided to the Legislature

A four-year commission studying wrongful convictions in Pennsylvania has finally released its report and not everyone involved has joined in the commissions recommendations.  The commission has recommended more DNA testing, recorded interrogations and changes in the way police interview witnesses.  However, 14 of the 51 members of the joint state advisory committee defected from the group, and dueling reports were presented to the state Senate Judiciary Committee at a public hearing this week, reported the Harrisburg Patriot-News.
The 14 who left the initial group are members of law enforcement, district attorneys or victim’s rights advocates. They collectively complained that the committee process was flawed and biased and excluded their contributions.

However, there is some middle ground.  Both groups agree that a creation of a forensic advisory board and a change in the state’s wiretap rules could help prosecutors avoid bad convictions, according to the Patriot-News.

Eleven people have been freed from prison as a result of DNA testing in Pennsylvania since the 1980s.
But the two committees disagree on the definition of “innocence.” The members who defected believe a distinction should be made between people who are exonerated based on technicalities — police mistakes or court procedures — and people who did not commit the crime.

According to the Patriot-News, the biggest difference between the two reports — and the biggest philosophical divide between the members — was over whether substantive changes are necessary to Pennsylvania’s judicial system. “We don’t think that police practices should be legislated,” said Crawford County District Attorney Francis Schultz, president of the Pennsylvania District Attorneys Association, told the Patriot-News. “There’s always room for improvement in the system, but I don’t think this is the way to do it.”

To read more:

Troy Davis was Convicted of Murder: His Case Reviewed Countless Times

Let’s imagine for a moment that Troy Davis was guilty. That is what Dr Tim Stanley, a research fellow in American History at Oxford University, did today in The Telegraph, (A jury convicted Davis of first degree murder):

That’s the conclusion that countless appeal courts reached – including the Supreme Court in a final, cruel stay of justice. A pair of Davis’s shorts was found, covered in his victim’s blood. Not 9 witnesses, but 34 were brought to testify against him. Plus, he was actually convicted of two shootings that night, not one. If he is guilty, then last night a truly evil man was executed. Witnesses say that Davis was beating a homeless man when off-duty cop Mark MacPhail intervened to help. Davis then shot MacPhail, laughing as he pulled the trigger. The dead man left behind a family. The US media reported the Davis execution with a bizarre one-sidedness.

 His mother affirmed that Davis had been given many opportunities to prove his innocence and that she was glad he was going to die. This wretched man killed her son in cold blood. We should spare a moment to think of her, too.

To read more:

Wednesday, September 21, 2011

Troy Davis Executed in Georgia

The 35th Execution of 2011

Troy Davis was executed this evening after the U.S. Supreme Court denied a last-minute stay of execution, according to ABC News.  Davis was convicted of the 1989 murder of off-duty Savannah, Ga., policeman Mark MacPhail, and had his execution stayed four times over the course of his 22 years on death row, but multiple legal appeals during that time failed to prove his innocence.

Davis died at 11:08 p.m., according to a Georgia Department of Corrections official.

The execution was delayed more than four hours as the U.S. Supreme Court weighed last-minute arguments from Davis' legal team and the state of Georgia over whether his execution should be blocked.

The court's decision to deny the stay came without comment after 10 p.m.

To read more:

Texas Carries Out Execution in the Shadow of Troy Davis

The 34th Execution of 2011

One of three suspects in one of the most grisly hate crime murders in recent Texas history has himself been put to death, reported KTRE-TV. It has been 13 years since the nation learned of the brutal dragging death of James Byrd Jr., a black man chained to the back of a pickup truck and dragged along Huff Creek Road in Jasper to his death.

Appeals to the courts Lawrence Russell Brewer were exhausted and no last-day attempts were filed to keep him from execution after 6 p.m. this evening in Huntsville.  Brewer's execution was temporarily delayed last week by the U.S. Supreme Court.

Little attention was paid to Brewer's execution as the nation was riveted on the pending execution of Georgia killer Troy Davis.

Brewer requested an extensive last meal that included two chicken fried steaks, a triple-meat bacon cheeseburger, fried okra, a pound of barbecue, and a pint of ice cream, reported KTRE-TV.

High Court Denies Davis' Request for Stay of Execution

The U.S. Supreme Court denied a last-minute stay of execution for Troy Davis after a delay to weigh arguments from Davis' legal team and the state of Georgia over whether his execution should be blocked, according to ABC News.

The court's decision to deny the stay came after 10 p.m., more than three hours after Davis' execution originally was scheduled.

The execution now is expected to occur by 11 p.m., reported ABC News.

To read more:

Troy Davis Execution Delayed by U.S. Supreme Court

Troy Davis, the death row inmate who convinced hundreds of thousands of people but not the justice system of his innocence, filed an eleventh-hour plea today asking the U.S. Supreme Court to stop Georgia from caarrying out his execution for the murder of an off-duty police officer, according to CBS News.

This is the third consecutive scheduled execution halted by the U.S. Supreme Court.  The other two were in Texas this week.

Davis' execution had been set to begin at 7 p.m., but Georgia prison officials were still waiting for the high court's decision nearly two hours later.

"It is killing me, to tell you the truth. I don't know what to expect anymore," said Anneliese MacPhail, mother of Mark MacPhail, the man Davis was convicted of killing in 1989, reported CBS News.

Davis' execution has been stopped three times since 2007, but on Wednesday the 42-year-old appeared to be out of legal options. As his last hours ticked away, an upbeat and prayerful Davis turned down an offer for a special last meal as he met with friends, family and supporters, according to CBS News.

To read more:

SCOTUS Halts Another Texas Execution

Yesterday, the U.S. Supreme Court granted a stay of execution for Texas death row inmate Cleve Foster.  He was convicted of a 2002 murder and rape in Fort Worth, Texas according to Reuters.

The court halted the execution of Foster about 2-1/2 hours before he was scheduled to be put to death by lethal injection around 6 p.m. It was the second consecutive Texas execution halted by the high court.

The justices in the brief order gave no reason why they granted the stay and said his execution will be delayed while the court considers his appeal. His appeal to the Supreme Court involved claims of ineffective assistance of counsel in earlier legal proceedings, reported Reuters.

Foster was convicted along with an accomplice, Shelton Ward, in 2003 after a jury found him guilty of murder in the slaying of Nyanuer "Mary" Pal, whose body was found nude in a ditch, according to a report by the Texas Attorney General's office. Ward died in prison.

To read more:

Tuesday, September 20, 2011

Eyewitness Identification Comes to the Forefront

Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial
Pennsylvania Law Weekly
September 20, 2011

Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial. Thirty years ago, Supreme Court Justice William J. Brennan Jr. wrote: "There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, 'That's the one!'"
However, following the publication of hundreds of scholarly studies examining eyewitness identification this widely accepted form of evidence is being called into question.
According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness evidence in criminal cases. The court, for the first time, attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth.

Visit Pennsylvania Law Weekly

Monday, September 19, 2011

DOJ: Violent Crime Down 70% Since 1993

The National Crime Victimization Survey has revealed some astonishing information. From 1993 through 2010, the rate of violent crime has declined by a whopping 70 percent: from 49.9 violent crimes per 1,000 persons age 12 or older to only 14.9 per 1,000 in 2010, reported the Associated Press.
Half of this decline came between 1993 and 2001. Between 2001 and 2009, violent crime declined at a more modest annual average of 4 percent, but that rate decline jumped to 13 percent in 2010.
The number of violent crimes fell by a surprising 12 percent in the United States last year, a far bigger drop than the nation has been averaging since 2001, the Justice Department said.
The Bureau of Justice Statistics reported there were 3.8 million violent crimes last year, down from 4.3 million in 2009.
Experts aren't sure why. The expectation had been that crime would increase in a weak economy with high unemployment like that seen in 2010.
The reality is that "we're surprised to find how much it declines," Professor Alfred Blumstein of Carnegie Mellon University's Heinz School told the Associated Press.
The big drop dwarfs the 3 percent yearly decline in violent crimes the nation averaged from 2001 through 2009.
Incomplete FBI data from 2010 showed crime fell across the board last year, extending a multi-year downward trend with a 5.5 percent drop in the number of violent crimes in 2010 and a 2.8 percent decline in the number of property crimes. The FBI's final figures for last year will be released Monday, according to the Associated Press.
The victimization survey figures are considered the government's most reliable crime statistics, because they count crimes that are reported to the police as well as those which go unreported. Over the last decade, the government has found that only about half of all violent crimes and only 40 percent of property crimes are reported to police.
Because the survey is based on interviews with victims, it gathers no data on murder. But the FBI's crime figures, based solely on what is reported to police, do provide murder figures, and they are considered quite reliable because murder has always been the least likely crime to go unreported. Murder is by far the least frequent major crime, only 15,241 in 2009.

Sunday, September 18, 2011

Day of Reckoning for Brutal Dragging Death in Jasper, TX

It has been more than 13 years since Lawrence Brewer, John William King and Shawn Allen Berry wrapped a logging chain around James Byrd Jr.'s ankles and dragged him to his death on Huff Creek Road in Jasper, Texas, reported Hearst Newspapers.

Brewer is the first of the three killers to be scheduled for execution.  Brewer is scheduled to die on September 21 in the death house at Huntsville, Texas.  The murder--hate crime--generated international attention and put Jasper in an unflattering spotlight. 

"It put a scar right from here to here on Jasper, Texas," former Jasper County Sheriff Billy Rowles told Hearst Newspapers on a recent afternoon, glancing down at his outstretched arms. "The wound healed up, but there's still a little scar there, still some scar tissue. And everybody in Jasper County -- not just Jasper, but Jasper County -- is ready for this thing to be over with."

Rowles and then-department of safety Trooper Rodney Pearson walked along two miles of drag marks together on that hot June morning in 1998. The pair stopped at Huff Creek Cemetery, where Byrd's dismembered body was left to be discovered by a passer-by. While there, a man who lived on the road drove up in his truck to tell them a man's head and shoulders were in his yard, Pearson recalled.

Saturday, September 17, 2011

The Cautionary Instruction: Orwell, Glogal Positioning Systems and the U.S. Supreme Court

The Pittsburgh Post-Gazette/Ipso Facto
September 17, 2011

In 1949, George Orwell published Nineteen Eighty-Four, a novel. Orwell describes a futuristic state, its leader Big Brother and the constant use of surveillance to maintain order. More than half-a-century later, Orwell’s book is drawing a lot of comparisons to global positioning system (GPS) technology used in modern law enforcement investigations.

GPS, in development since as early as 1959, came into its own during the first gulf war. The desert-based war was the first combat use of GPS, and it was hugely successful.  Law enforcement quickly realized the potential for GPS and many civil libertarians were quick to realize the technology’s impact on civil liberties.

The U.S. Supreme Court will hear a case this fall that will try to reconcile what was once considered science fiction with the reality of everyday life. At stake are the fundamental protections of the Fourth Amendment, freedom from “unreasonable search and seizure.”

In United States v. Jones, the Supreme Court will hear arguments regarding what some consider to be the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

In 2005, police investigating alleged drug activity secured a warrant, valid for 10 days, from a federal judge who authorized the attachment of a GPS device to a vehicle registered to the wife of Antoine Jones. The attachment of the device was authorized to occur in Washington, D.C. Instead, investigators attached the device while the car was parked in Maryland. The GPS device was used to record Jones’ movements around-the-clock for four weeks -- without seeking a time extension from the court.

In overturning Jones’ conviction, Federal Judge Douglas H. Ginsburg wrote, “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts.”

In the Jones case, the Government is arguing that GPS devices can be especially helpful in the early stages of an investigation as the police gather evidence. Requiring a warrant could hurt the government's ability to investigate drug trafficking, terrorism and other crimes.

Jones’ attorneys argued, "The advent of satellite-based tracking technology has enabled the government to engage in 24-hour tracking of the movements of any private citizen for extended -- indeed unlimited -- periods of time.”

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Friday, September 16, 2011

Supreme Court intervenes in Texas Execution, Takes Perry off the Hook

The U.S. Supreme Court halted yesterday's scheduled execution of Duane Buck, two hours into a six-hour window when he could have been taken to the death chamber, according to the Associated Press. Texas officials, however, did not move forward with the punishment while legal issues were pending.

Buck was sentenced to death for the fatal shootings of his ex-girlfriend and a man in her apartment in July 1995. Buck's attorneys had asked the Supreme Court to halt the execution because of a psychologist's testimony that black people were more likely to commit violence. Buck's guilt is not being questioned, but his lawyers contend the testimony unfairly influenced the jury and Buck should receive a new sentencing hearing, reported the Associated Press.

The Supreme Court acted before Governor Perry was forced to make a decision on the request for a stay.  Attorneys for Buck had also asked the governor/presidential candidate to intervene to delay the execution.  The decision meant Perry did not have to act on a request from Buck's lawyers that the governor use his authority to issue a one-time 30-day reprieve. Perry has presided over more than 230 executions.

Buck's case is one of six that then-Texas Attorney General John Cornyn — a political ally of Perry who is now a Republican U.S. senator — reviewed in 2000 and said needed to be reopened because of racially charged statements made during the sentencing phase. In the other five cases, new punishment hearings were held and each convict again was sentenced to die.

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Thursday, September 15, 2011

Perry Asked to Stop Racially Charged Execution

Texas Governor Rick Perry is being asked to stop today's scheduled execution of an African American murderer Duane Edward Buck who was sentenced to die after jurors were told that blacks are more likely to pose a future danger to the public, according to the Los Angeles Times.

Buck faces execution for shooting two people near Houston in 1995 while under the influence of drugs, but his attorneys say the racially charged testimony calls for a new sentencing hearing.

Buck's guilt is not in doubt, reported the Times. At issue is the sentencing hearing, at which jurors were called upon to decide whether to condemn him to death or to life in prison. Under Texas law, the jury must weigh whether the defendant poses a "future danger."

Dr. Walter Quijano, a psychologist and defense witness, testified that Buck was not likely to be dangerous because he had no previous history of violence.

But a prosecutor cited the "the race factor" and asked whether Buck's being black "increases the future dangerousness." Yes, the psychologist replied. Prosecutors cited that testimony in their closing argument, according to the Times.

More than a decade ago, Texas state attorneys admitted to the U.S. Supreme Court that Quijano had wrongly injected race into the sentencing hearings for seven Texas death row inmates, including Buck.
Seven sentences have been overturned only Buck's sentence remains in place.

"Mr. Buck committed a terrible crime, and he must be punished," said Linda Geffin, a former Harris County assistant district attorney, reported the Times. But, she added, "I felt compelled to step forward" because of "the improper injection of race in the sentencing hearing in Mr. Buck's case."

This week the board recommended against clemency. The governor has limited authority over death cases, but can order a temporary reprieve.

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Wednesday, September 14, 2011

Texas Carries Out First Execution Nationwide in Four Weeks

The 33rd Execution of 2011

Texas executed Steven Michael Woods who was convicted in 2002 of shooting and slashing a young Dallas-area couple under a controversial Texas law that allows a defendant to be put to death for a murder someone else committed.

Woods was given a lethal injection of drugs and pronounced dead at 6:22 p.m. local time on September 13, 2011 according to Reuters. In his last words, Woods told his mother he loved her, accused the state of committing a murder, and named his co-defendant, Marcus Rhodes, who pleaded guilty to murdering the couple and is serving a life sentence.

"You're not about to witness an execution. You are about to witness a murder. I am strapped down for something Marcus Rhodes did. I never killed nobody, ever," he said. "Justice has let me down. Somebody completely screwed this up. Well, Warden, if you're going to murder someone, go ahead and do it. Pull that trigger."

For his last meal, Woods requested bacon; a large pizza with bacon, sausage, pepperoni and hamburger; fried chicken breasts; chicken fried steak; hamburgers with bacon on French toast; garlic bread sticks; Mountain Dew, Pepsi, root beer and sweet tea; and ice cream, reported Reuters. Woods was the 10th execution in Texas this year and the 33rd in the country.

Texas law allows a jury to find a defendant guilty of murder if they were involved in the crime, even if they did not directly commit the killing, or were involved in crimes that lead to the killing, or if they should have known the crime would happen and showed a "reckless disregard" for human life.
On a Facebook page maintained by Woods' supporters, Woods said he was present for the killings but did not know the murders were going to happen and fled because he feared his co-defendant would kill him, too.

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Tuesday, September 13, 2011

Orwell's '1984' meets courts of 2011

This fall the U.S. Supreme Court will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade, reported the New York Times. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?
Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.
The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars, reported the Times.
The issue of GPS surveillance has brought countless judicial references to George Orwell's futuristic novel "1984."
In April, according to the Times, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last," reported the Times.
Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

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Monday, September 12, 2011

Death Penalty in Ohio to be Reviewed by State Supreme Court

Ohio Supreme Court Chief Justice Maureen O'Connor announced a committee will review the state's death penalty law and determine if changes should be made to the 30 year old law, according to the Associated Press.

The review will make sure the current system is administered fairly, efficiently and in the most "judicious manner possible,” said Judge O’Connor. "Is the system we have the best we can do?" said O'Connor told the Associated Press. She added "Convening persons with broad experience on this subject will produce a fair, impartial, and balanced analysis."
The 20-member committee, convened by the Supreme Court and the Ohio State Bar Association, will consist of judges, prosecuting attorneys, criminal defense lawyers, lawmakers and academic experts.
O'Connor made it clear in the annual speech given by chief justices that the review won't debate the law itself, reported the Associated Press.
A 2005 review of 20 years of capital punishment data by the Associated Press concluded that death sentences varied widely depending on where in the state charges were brought. The AP review also found people convicted of killing a white victim were twice as likely to receive a death sentence as those whose victim was black.
As it stands, the state is the midst of an unofficial death penalty moratorium while a federal judge decides whether the policies Ohio follows for carrying out executions are constitutional. Three executions have already been postponed and on Thursday defense attorneys filed a motion to delay an execution scheduled for next month.

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Sunday, September 11, 2011

Ohio’s death penalty derailed

Youngstown Vindicator
September 11, 2011

Has the tide turned in Ohio? At one point, several months ago, Ohio had executed more prisoners in 2011 than any other state. In 2010, Ohio was behind only Texas in the number of executions carried out. Texas has been the most prolific purvey of state-sponsored death since the death penalty was reinstated in 1976.

Ohio was literally setting the standard for executions nationwide. In 2009, after a brief moratorium following the botched execution of Romel Broom, Ohio was the first state to move from the standard three-drug execution protocol to a single-drug protocol.
Ohio was the second state to replace the sedative sodium thiopental used as an execution drug, currently in short supply, with pentobarbital. Ohio is the only state with a single-drug protocol using only pentobarbital.


That all changed in early July, when U.S. District Court Judge Gregory L. Frost delayed the scheduled execution of death row inmate Kenneth Wayne Smith after finding Ohio enforces some of its execution policies inconsistently.

Judge Frost wrote, “It is the policy of the State of Ohio that the state follows its written execution protocol, except when it does not.” Judge Frost continued, “Sometimes with no physical ramification and sometimes with what has been described as messy if not botched executions.”

The court found that the state failed to have the required medical personnel available, failed to properly document preparation of the execution drugs, or to prepare inmates for lethal injection.

Since then, the Ohio Supreme Court has scheduled two executions for well into 2013 providing additional time to address the concerns with Ohio’s execution protocol. Gov. John Kasich postponed a second execution, this one scheduled for August 16, 2011. The New York Times has suggested that Gov. Kasich’s action “is an admission that Ohio’s management of the death penalty is broken and further proof that the machinery of death cannot be operated responsibly anywhere.”

Ohio is front and center in America’s death penalty debate. The state is a hotbed of prominent politicos who have turned their back on capital punishment. Recently, a number of prominent Ohioans came out publicly in opposition to the death penalty. Earlier this year, Ohio Supreme Court Justice Paul E. Pfeiffer declared his opposition to the death penalty in an op-ed published in the Cleveland Plain Dealer.

Former Ohio Attorney General Jim Petro recently told the Cincinnati Enquirer, “I used to believe that the death penalty was a crime deterrent and cost less than incarcerating someone for 40 years. I know now it does not save money and is not a deterrent to crime.” Petro and Pfeiffer were both members of the legislature in 1981 when Ohio’s death penalty statute was passed.

Death row

Last year, Ohio moved more offenders off of death row than were placed on death row. There were eight executions and three commutations. Only seven offenders were sentenced to death statewide. At the current rate it would take 38 years to clear Ohio’s death row. Nationwide the numbers are even more abysmal. There are about 3,400 offenders on death row. It would take 73 years to execute everyone on death row at last year’s execution rate — even without adding another person to death row.

The death penalty is in question, not because some killers do not deserve themselves to die, but rather because the act of execution has become so rare as to indicate the presence of caprice if an offender is executed or fortuity if an offender is not. Neither caprice nor fortuity has a place in the criminal justice system.

Saturday, September 10, 2011

The Cautionary Instruction: How much would you pay for...

The Pittsburgh Post-Gazette/Ipso Facto
September 9, 2011

There has not been a significant terrorist attack in the United States since 9/11. There have been a number of terrorist acts thwarted by intelligence agencies, law enforcement efforts and probably a little luck -- like the shoe bomber, Richard Reid in 2002; the 2006 liquid explosives plot targeting airliners, which resulted in a boon for the travel size shampoo manufacturers; the 2009 Detroit bound airliner plot; and last year’s car bomb in Times Square.

A decade after the horrendous September 11, 2001 attacks on the World Trade Center and the Pentagon, the Los Angeles Times reported that federal and state governments are spending about $75 billion a year on domestic security, setting up sophisticated radio networks, upgrading emergency medical response equipment, installing surveillance cameras and bombproof walls, and outfitting airport screeners to detect an ever-evolving list of mobile explosives.

“The number of people worldwide who are killed by Muslim-type terrorists, al Qaeda wannabes, is maybe a few hundred outside of war zones. It's basically the same number of people who die drowning in the bathtub each year," said John Mueller, an Ohio State University professor.

Professor Mueller asks, "So if your chance of being killed by a terrorist in the United States is 1 in 3.5 million, the question is, how much do you want to spend to get that down to 1 in 4.5 million?"

Your chance of being killed by a run-of-the-mill domestic murderer is at least 175 times greater than being killed by a terrorist. In 2009, there were 15,214 murders in the U.S., about 5.4 murders for every 100,000 people. The number of murders per capita is down considerably from the mid-1990s, but substantially higher than the death by terrorism threat.

Knowing that, how much would you pay for more police protection?

Congress doesn’t believe you’d pay anything more for police protection -- in fact congress is paying less. The Justice Department’s 2011 budget was slashed by nearly $1 billion -- a 2.9 percent decrease from last year. Local police departments, many of which are already reeling from the economic downturn, are going to feel the pinch.

The cuts represent about a 17 percent across the board reduction for a variety of law enforcement grant programs, and about $296 million less for the Community Oriented Policing Services program that covers the salaries and benefits of newly hired police officers for three years.

Pennsylvania U.S. Senator Bob Casey said cuts to state and local law enforcement and the COPS program, “will negatively impact the safety of my constituents and citizens across the country.”

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Friday, September 9, 2011

Former Senator: An Attack of Biological Proportion

In 2008, former Senator Jim Talent, vice chairman of the national Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, predicted that a terrorist attack by 2013 is "more likely than not" barring urgent action, reported the St. Louis Post-Dispatch. The most likely form of attack, Talent and others concluded, would involve unleashing a biological agent such as anthrax. 

Talent and former Sen. Bob Graham, D-Fla., the chair of the WMD commission, plan to release a new report that reiterates the threat of biological attack and grades the nation on its preparations to withstand it. According to the Post-Dispatch, the former senators said they are especially worried about cuts in security spending, cuts felt already by states and localities that would be on the front lines of responding.

In the drive to reduce the nation's debt, anti-terrorism efforts are undergoing the same scrutiny as other government programs. Preparation for a biological attack will be pitted against spending on social programs, the military budget, alternative energy and a host of federal expenditures when the 'super committee" in Congress convenes shortly to chart trillions in reduced spending in coming years, reported the Post-Dispatch.

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Thursday, September 8, 2011

Justice, Liberty and Privacy 10 Years After 9/11

A few days after the attack on the World Trade Center U.S. Supreme Court Justice Sandra Day O"Connor visited Ground Zero, reported Later she told and audience at NYU, "I am still tearful from that glimpse." O'Connor went on to predict that "the trauma that our nation suffered will and already has altered our way of life, and it will cause us to re-examine some of our laws pertaining to criminal surveillance, wiretapping, immigration, and so on.…As a result, we are likely to experience more restrictions on our personal freedom than has ever been the case in our country."

Justice O'Conner was right-on in her assessment of the impact 9/11 would have on the American Justice system. details a number of issues that have raised concern:

• Torture and rendition of terror suspects, employed by the Bush administration, have been ostensibly stopped by the Obama administration. But Obama has endorsed the concept of indefinite detentions in some cases and the administration has argued for immunity from prosecution for officials involved in abuses.

• The Patriot Act, passed by Congress in the heat of post-September 11 passions, has been tempered in reauthorizations to include new safeguards of civil liberties.

• Guantánamo detainees won due process rights from the Supreme Court. But Guantánamo is still open, despite Obama campaign promises, and hundreds of other prisoners are detained at Bagram Airfield in Afghanistan, where a federal appeals court ruled that habeas relief in U.S. courts is not available. And Obama has backed away from earlier plans to replace military commissions with trials in civilian courts.

• The state secrets privilege, invoked by the government to shield purported national security matters from litigation, has thrived under Obama, and the Supreme Court has sidestepped cases challenging its overuse.

• The so-called "expectation of privacy," a key measure for judging the constitutionality of government intrusions, has weakened, if not vanished — the result not only of Sept. 11 but technological advances. Storing documents "in the cloud" instead of on hard drives, for example, will make it easier for law enforcement to obtain them without search warrants.

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Wednesday, September 7, 2011

Troy Davis' Execution Date Set

Georgia hass scheduled an execution later this month for Troy Davis who has won supporters with his claims of innocence in a 1989 police officer's slaying, according to The Associated Press.

Defense attorney Brian Kammer said a judge signed an order setting an execution for Davis between September 21 and 28. Kammer provided a copy of the order to The Associated Press. It is the fourth time since 2007 that state officials have scheduled the Georgia inmate to die.

Davis has become a focal point for the international anti-death penalty movement, attracting high-profile figures like former President Jimmy Carter.

Davis claims he wasn't the one who killed off-duty Savannah police officer Mark MacPhail. But a federal judge rejected his claim, and the U.S. Supreme Court turned down another appeal in March.

Tuesday, September 6, 2011

Ohio's Prison Privatization Plan Falls Short

Last week,  Ohio became the first state in the nation to sale a state prison to a private buyer, according to the Columbus Dispatch.  The sale of the Lake Erie Correctional Institution in Ashtabula County brought in $72.7 million.  State officials say the private prison could save taxpayer up to $3 million a year.

Many observers in Ohio were surprised when the state announced the sale of only one prison. Governor John Kasich had said as many as five prisons would be sold in a corrections reorganization. 

Following the sale, Ohio Corrections Director Gary C. Mohr immediately announced an aggressive reorganization and legislative agenda that he suggested, if accomplished, would transform the system.

The Dispatch reported the reorganization would include:

• Reintegration prisons. These will house lowest-security inmates serving shorter sentences before their release. Inmates will work eight hours a day “at productive jobs,” Mohr said. “I want to put inmates to work. We’re going to do a time sheet every day.” Potential jobs range from light manufacturing to truck-driver training.
• General-population prisons. These will be transitional facilities, where inmates will concentrate on education, training and community re-entry programs.

• Control prisons. These are for the truly bad guys — gang members, those with a history of violence behind bars and inmates serving long or life sentences. The Mansfield Correctional Institution is the first to be transformed; 80 of the most serious offenders statewide already have been transferred there.

According to the Dispatch the initiative also has a legislative component including:

• Expand “earned credit” for all inmates, not just new ones, as allowed under the recently adopted criminal-sentencing overhaul.

• Increase “transitional control,” which allows inmates to be transferred to community residential facilities in the last six months of their sentence.
• Reduce “collateral sanctions,” such as the loss of a driver’s license, that prevent ex-offenders from effectively re-entering society.

• Allow sentence reductions for inmates employed in reintegration prisons.

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Monday, September 5, 2011

Prisons Replace Psychiatric Hospitals: Costs Soar

The three largest inpatient psychiatric facilities in the country are the Los Angeles County Jail, Rikers Island Jail in New York City and Cook County Jail in Illinois.  You read that correctly-jails and prison are America's defacto psychiatric hospitals.

There are an estimated 350,000 people with mental illness confined in the nation's prisons and jails according to National Public Radio (NPR). More Americans receive mental health treatment in prisons and jails than in hospitals or treatment centers.

The University of South Florida found that the highest users of criminal justice and mental health services in Miami-Dade County were 97 people, individuals diagnosed primarily with schizophrenia. Over a five-year period, these 97 individuals were arrested almost 2,200 times and spent 27,000 days in the Miami-Dade Jail.  Those 97 inmates cost taxpayers an astounding $13 million, reported NPR.

If Miami-Dade would have taken those 97 inmates and managed them in the community, even at the risk of spending "lavishly" on those 97 inmates, they could have saved at least $2 million.  Put them in there own apartment, give them food and medication provide public transportation and have some allowance  for arrest even occasional incarceration and Miamicould save over $300 a month on each inmate or about $1.94 million over five years.

Most taxpayers would object to paying a $22,000 annual "entitlement" to someone with mental illness. However, as long as they don't know they'll gladly pay the actual cost of $26,804 that is neatly hidden in incremental payments to the police, courts, the prisons, the victims, the doctor, the pharmacy and on and on.

Sheriff Greg Hamilton of Travis County in Austin, Texas, also sees the flaws in the system.  He told NPR, "It seems to me that we have criminalized being mentally ill."

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Saturday, September 3, 2011

The Cautionary Instruction: Reconciling the eyewitness and science

Pittsburgh Post-Gazette/Ipso Facto
September 2, 2011

United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion more than thirty years ago, “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’”

Convincing yes-- reliable, maybe not ...

Last week, New Jersey’s Supreme Court overhauled the state’s rules for how judges and jurors treat evidence from police lineups. New Jersey joins North Carolina as the only states that mandate practices supported by years of research: first, double-blind lineups administered by a police officer who is not familiar with the suspect and who is not one of the primary investigators on the case; second, photo arrays that are presented sequentially rather than as a group. Research studies have revealed that both practices decrease the pressure on witnesses to pick someone and guard against undue influence.

Psychologists have long known about the fallibility of human memory especially as it relates to eyewitness identification. As far back as 1971, England’s Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions. Even as far back as the 1800s, famed psychologist Hermann Ebbinghaus’s memory research established the “Forgetting Curve,” which plots how human recollection fades over time, beginning within minutes of the creation of a memory.

Some trial courts have found that jurors do not need assistance with eyewitness testimony and identification of the defendant. These trial courts claim that the issues common to identification testimony, such as weapon focus, cross-racial limitations and post-event contamination, are not beyond the grasp of the ordinary juror. A jury is capable of determining the strength of a witness’ identification on its own, expert testimony would not be “helpful.”

Pennsylvania is one of those states. In Commonwealth v. Robinson, 5 A.3d 339 (2010), the defendant sought to offer expert testimony shedding light upon the reliability of an eyewitness in a cross-racial identification. The Superior Court held that the trial court was correct in denying the defendant’s request and properly refused to instruct the jury as to inherent difficulties in making accurate cross-racial identification.

The Court found that allowing an expert to offer an opinion that cross-racial identification is less reliable than same-race identification would improperly intrude upon the credibility determinations of the jury. The Superior Court held, in light of precedent, “we believe our supreme court would find that proposed testimony (cross-racial identification) equally objectionable.”

The issue is not being ignored in Allegheny County. District Attorney Stephen A. Zappala, Jr., the Allegheny County Chiefs of Police Association and the Pennsylvania Human Relations Commission collaborated on developing sample "Eyewitness Identification Procedures" that have been distributed to the approximately 120 police departments in Allegheny County.

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Illinois Prison Population Out of Control

The prison population in Illinois is dangerously high.  After the state halted an early release plan the population soared.   Prison population is at a record high of 49,000, about 147 percent of the system’s capacity.

Inmates are sleeping as many as four to a cell in prisons across the state, being housed on cots no more than two feet apart in basements, and prison staffs are facing greater dangers and have fewer disciplinary and precautionary options, according to Illinois Progress.

Prisoners and guards both are at greater risk. Correctional officers have fewer ways to discipline troubled or unruly prisoners, fewer ways to interdict contraband weapons and substances, and fewer ways to protect inmates who are potential targets of violence or even assassination attempts.

According to the Progress, two state legislators called for improvements. State Senator John Jones and Senator Shane Cultra held a joint press conference urging the Governor to hire more correctional officers and to develop a responsible early release program.

“You can see this train wreck coming,’’ Culta told the Progress. Of particular concern to the lawmakers: the ratio of inmates to guards, which is as high as 34 to 1 on some shifts, they said. That figure is well above the recommended level of seven officers per inmate.

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Friday, September 2, 2011

New York Times Debates Eyewitness Identification

The New York Times has a regular feature "Room For Debate."  Outside contributors weigh on various sides of an issue.  This weeks topic is eyewitness identification.

The Times introduction begins with, "If only our memories were as accurate as they feel. A crime victim might stand behind the one-way mirror and, with total confidence, point to a suspect in a lineup. But total confidence is not the same thing as being right."

There are four perspectives offered--four professors, a prosecutor and victims advocate.  One of the contributors, Amy Bradfield Douglass, an associate professor of psychology at Bates College, said judicial interventions "do nothing to prevent mistaken identifications, only mistaken convictions."  Bates is suggesting that science be used to prevent even the arrest of an innocent person.  This amps up the eyewitness identication debate.

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Thursday, September 1, 2011

SCOTUS to Hearing Brady Case this Fall

In an amicus brief filed with the U.S. Supreme Court in the Louisiana case of Juan Smith v. Burl Cain, Warden, 10-8145 the American Bar Association is asking the justices to reaffirm that a prosecutor’s ethical obligations to disclose exculpatory and mitigating evidence before trial are broader than the constitutional standards established for post-trial review of non-disclosure claims under the Court’s 1963 decision in Brady v. Maryland, 373 U.S. 83 (1963).

In Smith vs. Burl Cain, Warden, Juan Smith was convicted of five counts of murder in what UPI referred to as the "Morrison Road" case.  He was sentenced to life in prison without parole. The state trial court, the state 4th Circuit Court of Appeal and the state Supreme Court all denied Smith's petition for review. Smith contends that the Louisiana courts disregarded established precedents established by Brady v. Maryland.

According to UPI, on the evening of February 4, 1995, Tangie Thompson, her boyfriend, Andre White and her 3-year-old child were killed in their New Orleans residence on Roman Street.

Juan Smith was convicted in the "Roman Street" case and sentenced to death for the three murders.

On the evening of March 1, 1995, three armed men entered another home in New Orleans on Morrison Road and ordered six people to lie down on the floor. Five were shot multiple times and died. One of the victims, Shelita Russell, was severely injured but conscious after the attack and interviewed by police, reported UPI.

Smith's lawyers say this interview was never turned over to the defense. Russell died several days later.

The lawyers also contend the prosecution withheld a jailhouse confession that involved another suspect in both murders, and made a very favorable deal with the jailhouse suspect in exchange for testimony against Juan Smith in the Morrison Road trial, reported UPI.

Witnesses also were forced to identify Smith in a photo lineup under highly suspect circumstances, the lawyers contend.

In a case involving allegations of substantial prosecutorial non-disclosures, the ABA acknowledges that the court must consider these claims post-trial under the Brady standards. However, the ABA, quoting Cone v. Bell, 129 S.Ct. 1769 (2009), urges the justices to again recognize that a prosecutor’s pretrial disclosure obligations “may arise more broadly under a prosecutor’s ethical or statutory obligations,” as established by the prosecutor’s state attorney regulatory body.

The amicus brief cites three ABA authorities in support of its argument:

ABA Model Rule of Professional Conduct 3.8(d), which provides for disclosure regardless of materiality. Louisiana and 48 other states have adopted ethics rules that include a provision identical or similar to Model Rule 3.8(d). “Indeed, to the extent Louisiana has modified Rule 3.8(d), it has done so … only to impose more rigorous disclosure obligations on prosecutors,” according to the amicus brief, which includes an appendix listing the prosecutorial disclosure obligations of each state.

Formal [Ethics] Opinion 09-454, “Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense,” which discusses the absence of a materiality requirement in Rule 3.8(d). The full text of this opinion is included as an appendix to the amicus brief.

The ABA Standards for Criminal Justice, which are based on consensus views of criminal law professionals. The standards provide for disclosure without regard to materiality.

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ABA Press Release: