Monday, October 31, 2011

Pennsylvania Finally Gets Around to Addressing the Death Penalty and Mental Retardation

Nine years after Atkins v. Virginia, 536 U.S. 304 (2002), Pennsylvania is finally getting around to establishing a set of guidelines for determining if a defendant facing the death penalty is mentally retarded.

According to National Public Radio (NPR), in 2002 the U.S. Supreme Court ruled that applying the death penalty to someone with a mental retardation is unconstitutional, and called on states to craft their own guidelines on how to implement the decision.

In Atkins, the Supreme Court ruled that the mentally retarded are not able to communicate with the same sophistication as the average offender, as a result there is a greater likelihood that their deficiency in communicative ability will be interpreted by juries as a lack of remorse for their crimes. The mentally retarded typically make poor witnesses, being more prone to suggestion and willing to "confess" in order to placate or please their questioner.

In light of the "evolving standards of decency" that the Eighth Amendment demands the Court concluded that executing the mentally retarded with be cruel and unusual punishment.

Pennsylvania is finally getting around to the issue. The state legislature has considered similar measures in the House or Senate a number of times over the years.

This month the state Senate approved a bill that allows lawyers for a defendant in a capital case to request a hearing before the trial to determine if the defendant is eligible for the death penalty. The burden of proof would be on the defendant. If the judge rules in favor of the defendant, the case would move forward as a non-capital trial. In the case of a defendant who has already been sentenced to death, a similar procedure would take place.

David Harris, professor of law at the University of Pittsburgh School of Law explained that the lag time between the high court ruling and state action is not a-typical.

As long as the state is not imposing the death penalty on anyone that might qualify as mentally disabled, [the lack of guidelines] isn’t a problem. But as soon as they get close to doing something like that, it becomes a problem,” Harris told NPR.

Because the state executes so few people, Harris calls the death penalty more symbolic rather than an actual issue. Nonetheless, he says a state must have clear laws that follow the U.S. Supreme Court’s decisions.

Because if it doesn’t, it sets itself up for endless appeals and trips through the legal system which are just unnecessary and incredibly expensive,” Harris told NPR.

Pennsylvania has executed three people since 1976.  All three volunteered to be executed  There are currently 208 inmates on death row.

To read more:

Sunday, October 30, 2011

Adam Walsh Act Suppresses Juvenile Sex Prosecutions

Adam Walsh Child Protection and Safety Act would make teens 14 and older who are found delinquent of the most violent sex cases — forcible rape, sexual assault and involuntary deviate sexual intercourse — register for 25 years.

Pennsylvania is supposed to pass its version of the Adam Walsh act by Dec. 31, and those working on the bill say they are hopeful they won’t need an extension, according to the Harrisburg Patriot News.
The idea that some teens would have to register is creating pushback.
District attorneys are noticing that juvenile court judges are holding back from certain rulings with the registry in mind, and defense attorneys are less amenable to plea deals for crimes that would require registration.
Meanwhile, every state in the country is supposed to pass versions of the Adam Walsh Act or give up certain funding. Already some major states, including New York and Texas, have told the Department of Justice that they don’t plan to comply, reported the Patriot News.

Just the anticipation of the consequences of the Adam Walsh act had an effect on the juvenile justice system in Pennsylvania.
Between 2000 and 2004, the number of juvenile sex cases in Pennsylvania was about 1,100 a year. Between 2006 and 2010, the number hovered between 750 and 800. As of this month, there have been 508 cases, reported the Patriot News.
Once the Adam Walsh act was passed at the federal level, defense attorneys began to worry about losing that anonymity.
According to the Patriot News, the law has created the same drop in cases in Ohio. New York and Texas, in letters to the U.S. Department of Justice, said they have already decided to give up the federal funding and not comply with the Adam Walsh act. Texas called it “one-size-fits-all” legislation that would cost 30 times the amount of federal funds that will be withheld if the state doesn’t comply.
In California, the sex-offender management board wrote a letter urging the legislature to reject it.

Saturday, October 29, 2011

The Cautionary Instruction: Prison reform promotes local control

The Pittsburgh Post-Gazette/Ipso Facto
October 28, 2011

On September 28, 2008, then-Governor Edward G. Rendell signed into law a series of prison reform measures, known in part as Act 81. The reforms were intended to reduce costs, ease county jail overcrowding, improve treatment services and among other things provide for the compassionate release of terminally ill inmates. Not all of the reforms have met with success.
A provision of Act 81, Place of Confinement -- 42 Pa.C.S.A. 9762, is scheduled to take effect on November 24, 2011. The new law provides that sentences with maximums between two and five years must be served in a state prison. However, under specific circumstances a judge can order the sentence to be served in a county jail. That is not entirely new. What is new is that the sentencing judge will retain jurisdiction for purposes of parole, not the Pennsylvania Board of Probation and Parole.
Act 81 provides that offenders sentenced to a term of two years or more, but less than five years may be confined in a county jail if: (1) the county prison warden certifies that the county jail is at less than 110% of capacity; (2) the district attorney has consented to the confinement; and (3) the sentencing court has approved the placement in the county jail.
According to data compiled by the Pennsylvania Commission on Sentencing, in 2009 7,860 sentences included a maximum term of two years or greater but less than five years; of these, 6,080 were committed to a state correctional facility, and 1,205 were committed to county jails. The remaining 575 sentences were state intermediate punishment.
What are the implications for offenders? Initially, an offender who has local ties to the community will be more accessible for purposes of visitation while in a county jail. That is not always the case in the state correctional system. With 28 correctional facilities across the commonwealth some state inmates find themselves far away from family and friends.
An offender serving a sentence in the county jail may also have available the privilege of work release. An offender with a family to support could continue to work while serving her sentence. This often eases a significant burden placed on the non-incarcerated parent.
Administratively the most significant change brought about by the new law is that judges will now make parole decisions, not the Parole Board; and local county probation offices will supervise those offenders after parole instead of the Parole Board.
Criminal defense practitioners should be eager to explore the benefits of Act 81. The trick may be getting a feel for the administrative aspects of the new law. A provision of the reform package provided that the Sentencing Commission would establish parole guidelines for the Parole Board and for judges who invariably will be making more parole decisions. Those guidelines have not yet been established, although the Parole Board has been utilizing internal parole guidelines since 1980.

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Friday, October 28, 2011

Budget Cuts Causing Havoc in Criminal Justice System

Deep budget cuts to courts, public defenders, district attorney's and attorney general offices are testing the criminal justice system across the country. In the most extreme cases, public defenders are questioning whether their clients are getting a fair shake, according to the Associated Press.

Exact figures on the extent of the cuts are hard to come by, but an American Bar Association report in August found that most states cut court funding 10 percent to 15 percent within the past three years. At least 26 states delayed filling open judgeships, while courts in 14 states were forced to lay off staff, said the report.

The National District Attorneys Association estimates that hundreds of millions of dollars in criminal justice funding and scores of positions have been cut amid the economic downturn, hampering the ability of authorities to investigate and prosecute cases, reported the Associated Press.

"It's extremely frustrating. Frankly, the people that do these jobs have a lot of passion. They don't do these jobs for the money. They are in America's courtrooms every day to protect victims and do justice," Scott Burns of the National District Attorneys Association told the Associated Press. "And they're rewarded with terminations, furloughs and cuts in pay."

The Associated Press cited examples of budget cuts impacting criminal justice in Maine, Georgia, California, New York and Alabama.  The long term effect of court related budget cuts has yet to be determined.  However, the impact will reach beyond the criminal justice system and have the potential to effect every American who reaches out to the court system.

To read more:

Pennsylvania Examines Cost of the Death Penalty

State Senator Stewart Greenleaf, chairman of the state Senate Judiciary Committee, has commissioned a bipartisan task force to take a look at what the death peanlty has cost taxpayers over the last 40 years. Right now, there are no estimates.
The task force will also explore whether the death penalty is worth keeping. Governor Tom Corbett’s office has no position on the Greenleaf’s resolution.
Until it’s complete, an obvious question is emerging: If no one is actually dying, what’s wrong with Pennsylvania’s death penalty?

The Harrsiburgh Patriot-News took a detailed look at the death peanlty in Pennsylvania.  As I had recently written in an op-ed for the Philadelphia Inquirer--since the death penalty was reinstated in 1978, only three people on death row in Pennsylvania have actually died by lethal injection, and those three defendants basically signed their own death warrants by waiving their rights to appeal.
A much higher number, about 140 people, have been released from death row following successful appeals.
Some were found to be innocent. Most simply had their sentences commuted to life in prison. But in the meantime, taxpayers were footing the bill for their lengthy appeals, and by lengthy, we’re talking decades.

According to the Patriot News, those on both sides of this issue agree that Robert Dunham, a Harrisburg-based assistant federal defender, has the most accurate statistics on Pennsylvania death penalty cases.
His recordings show that 237 people have had their death penalty sentence overturned since 1978, but because he didn’t start researching them until the 1990s and the state keeps no records of these cases, he said it’s unclear what happened to about 75 of those defendants. He does know that about 15 defendants were sent back death row and are still there.
About 123 were resentenced to spend life in prison.
At least 12 people resentenced to less than life.
There were six complete exonerations — Nicholas Yarris and Harold Wilson, Jay Smith, William Nieves, Neil Ferber and Thomas Kimbell.  Kimbell was a Lawrence County case.  He was convicted of first degree murder and sentenced to death.  He was awarded a new trial and found not guilty.  He was not found innocent.
Another, Fred Thomas, got a new trial and died waiting for it.

To read more:


Thursday, October 27, 2011

Inquirer Examines Inadequate Representation in Homicide Cases

The Philadelphia Inquirer examined more than 125 capital murder trials in Pennsylvania - 69 in Philadelphia alone - that state and federal appeals courts have reversed or sent back for new hearings because mistakes by defense lawyers deprived the accused of a fair trial.

That amounts to nearly one-third of the 391 capital convictions in Pennsylvania since the modern death penalty took effect in 1978.

An Inquirer review of death-penalty appeals spanning three decades found that defense lawyers in these high-stakes cases failed their clients in ways large and small.

Lawyers fighting for defendants' very lives often spend little time preparing their cases and put on only the barest defense. They neglect basic steps, such as interviewing defendants, seeking out witnesses, and investigating a defendant's background.

The Inquirer provides a glimpse into the rampant ineffective representation promoted by a system that grossly overworks and under pays defense counsel.

To read more:

Wednesday, October 26, 2011

Texas' 12th Execution Scheduled for Tomorrow

San Antonio street gang member Frank Garcia knew what he was doing when he opened fire on veteran police Sgt. Hector Garza.

Garcia told detectives after he was arrested for the slaying of the 48-year-old officer in 2001 that he knew officers wore bulletproof vests so he aimed for Garza's head. Garza was shot four times, including one shot to his head and two to his neck, according to the Associated Press.

The 39-year-old Garcia is set for execution tomorrow in the death house at Huntsville, Texas. His wife also was killed in the same shooting outburst during a domestic dispute.

He would be the 12th convicted killer put to death this year in Texas, the 39th execution nationwide.

Alaska Leads the Nation in Gun Deaths; Hawaii has fewest

States with higher gun ownership rates and weak gun laws have the highest rates of gun death according to a new analysis by the Violence Policy Center (VPC) of just-released 2008 national data (the most recent available) from the federal Centers for Disease Control and Prevention’s National Center for Injury Prevention and Control.

The analysis reveals that the five states with the highest per capita gun death rates per 100,000 were Alaska (20.64), Mississippi (19.32), Louisiana (18.47), Alabama (17.53), and Wyoming (17.45). Each of these states had a per capita gun death rate far exceeding the national per capita gun death rate of 10.38 per 100,000 for 2008. Each state has lax gun laws and higher gun ownership rates.

This spring the Brady Campaign released a 100-point scorecard ranking all 50 states on the basis of laws that can prevent gun violence. Alaska scored zero on the scorecard.  Louisiana scored two, Mississippi six, Wyoming eight and Alabama 16.

 By contrast, states with strong gun laws and low rates of gun ownership had far lower rates of firearm-related death. Ranking last in the nation for gun death was Hawaii (3.18), followed by Massachusetts (3.42), Rhode Island (4.18), and New York and New Jersey (4.95). 

The total number of Americans killed by gunfire rose to 31,593 in 2008 from 31,224 in 2007.

See ranking for all 50 states:

Tuesday, October 25, 2011

FBI Releases Data on Police Officer Deaths and Assaults

Fifty-six law enforcement officers were feloniously killed in the line of duty last year, according to an FBI press release; 72 officers died in accidents while performing their duties; and 53,469 officers were assaulted in the line of duty. The 2010 edition of Law Enforcement Officers Killed and Assaulted provides comprehensive information about these incidents.

Felonious Deaths
The 56 felonious deaths occurred in 22 states and Puerto Rico. The number of officers feloniously killed in 2010 increased by eight compared with the 2009 figure (48 officers). The five- and 10-year comparisons show an increase of eight felonious deaths compared with the 2006 figure (48 officers), and a decrease of 14 deaths compared with data from 2001 (70 officers).
Officer Profiles: Among the officers who were feloniously killed, the average age was 38 years. The victim officers had served in law enforcement for an average of 10 years at the time of the fatal incidents. Fifty-four of the victim officers were male, and two were female. Forty-eight of the officers were white, seven were black, and one was Asian/Pacific Islander.
Circumstances: Of the 56 officers feloniously killed, 15 were ambushed; 14 of the slain officers were involved in arrest situations; eight were investigating suspicious persons/circumstances; seven were performing traffic stops/pursuits; six were answering disturbance calls; three were involved in tactical situations (e.g., high-risk entry); two were conducting investigative activity such as surveillance, searches, or interviews; and one officer was killed while transporting or maintaining custody of prisoners.
Weapons: Offenders used firearms to kill 55 of the 56 victim officers. Of these 55 officers, 38 were slain with handguns, 15 with rifles, and two with shotguns. One officer was killed with a vehicle used as a weapon.
Regions: Twenty-two of the felonious deaths occurred in the South, 18 in the West, 10 in the Midwest, and three in the Northeast. Three of the deaths took place in Puerto Rico.
Suspects: Law enforcement agencies identified 69 alleged assailants in connection with the 56 felonious line-of-duty deaths. Fifty-seven of the assailants had prior criminal arrests, and 19 of the offenders were under judicial supervision at the time of the felonious incidents.

Accidental Deaths
Of the 72 law enforcement officers killed in accidents while performing their duties in 2010, the majority of them (45 officers) were killed in automobile accidents. The number of accidental line-of-duty deaths was up 24 from the 2009 total (48 officers).
In 2010, 53,469 law enforcement officers were assaulted while performing their duties. Of the officers assaulted, 26.1 percent suffered injuries. The largest percentage of victim officers (33.0 percent) were assaulted while responding to disturbance calls (family quarrels, bar fights, etc.). Assailants used personal weapons (hands, fists, feet, etc.) in 81.8 percent of the incidents, firearms in 3.4 percent of incidents, and knives or other cutting instruments in 1.7 percent of the incidents. Other types of dangerous weapons were used in 13.1 percent of assaults.

To read more:

Monday, October 24, 2011

Alternative to the Death Penalty Under Attack

The rallying cry for those opposed to the death penalty has been that life without parole is an equally severe punishment that adequately protects the public.  For instance the Catholic Church suggests that the death penalty should be abolished, "Because we have other ways to protect society that are more respectful of human life."

The death penalty is still around and the attacks on life without parole have already begun. According to the USAToday, from 1984 to 2008, the number of offenders serving life terms quadrupled, from 34,000 to roughly 140,000, according to the most recent count by The Sentencing Project, which advocates alternatives to incarceration.

One of the fastest-growing subgroups are inmates serving life without the possibility of parole. Those numbers have jumped from 12,453 in 1992 to 41,095 in 2008 and represent the most costly inmates to house as the aging inmates require increased medical care.

"The challenge for us is to distinguish between the offenders we are afraid of — those who deserve to be locked up for life — and those who we are just mad at and who can be handled outside of prison," Texas state Senator John Whitmire told the USAToday.

Life without parole will be the next death penalty.  Those opposed to today's death penalty will be the abolitionist for tomorrow's life sentence.  The cost saving associated with the abolition of the death penalty will be quickly usurped by challenges to life without parole.  Soon enough those "other ways to protect society" relied on by the Catholic Church will begin to disappear.

Will the efforts to thwart the death penalty and life without parole have an impact on violent crime? 

Sunday, October 23, 2011

The Cautionary Instruction: U.S. Supreme Court hears arguments in case with local twist

The Pittsburgh Post-Gazette/Ipso Facto
October 21, 2011

Last week, the U.S. Supreme Court listened to arguments in the case of Florence v. Board of Freeholders. Albert Florence was picked up in New Jersey on a warrant for an unpaid fine and lodged in two different county jails where, in each, he was strip-searched as part of routine jail policy.

After it was determined that the warrant had been issued in error, Florence was released. He filed suit claiming his Fourth Amendment right against unreasonable searches was violated. A federal district court judge sided with Florence, but the Third Circuit Court of Appeals reversed, saying routine strip-searches during intake are justified based on the prison’s concern that weapons and other contraband might be smuggled into the prison.

There is a local parallel to this case. In 2006, Allegheny County was sued for blanket strip-searches of all detainees that were “intermingled” with other county jail inmates. According to depositions taken during the suit, the searches largely included a visual examination of the genitals, as well as requesting detainees to bend at the waist and manipulate the buttocks, breasts and genitals to allow for a visual inspection of their body cavities and skin folds. Female detainees were required to “squat and cough” to see if any contraband dislodged from the vagina.

The class action law suit was settled for $3 million. However, Judge Terrence F. McVerry made reference, in his Settlement Opinion, to the lower court decision in Florence v. Board of Freeholders. Judge McVerry wrote that the Third Circuit in Florence held that conducting strip-searches did not require a showing of attempted smuggling or discovered contraband as a justification for the policy.
Allegheny County settled six days before Florence was decided. Florence ultimately made its way to the U.S. Supreme Court and was the subject of last week’s argument.

Assistant Solicitor General Nicole Saharsky argued last week before the Supreme Court that corrections officials should be able to set search policies for their jails. "You cannot say that there are some minor offenders that don't pose a contraband risk.” Saharsky added that guards who screen arrestees are, “Individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly."

Florence’s attorney, Thomas C. Goldstein, argued that such a “significant intrusion on individual privacy and individual dignity” requires a reason to believe that the arrested person poses a danger.
During the 12 months ending June 30, 2010, local jails admitted an estimated 12.9 million prisoners. While not every jail has a blanket strip-search policy -- the High Court would do well to debunk the near universally accepted idea that the U.S Constitution is of limited application behind the jail house walls.

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Gang Membership on the Rise

The gang problem in the United States is growing and there are an estimated 1.4 million members in some 33,000 gangs, according to the federal government, reported the Associated Press.

Gangs are collaborating with transnational drug trafficking organizations to make more money and are expanding the range of their illicit activities, engaging in mortgage fraud and counterfeiting as well as trafficking in guns and drugs, according to the national gang threat assessment for 2011.

The gang member estimate of 1.4 million was up from 1 million two years ago, a 40 percent increase, but the report attributed the rise in part to improved reporting by law enforcement agencies, reported the Associated Press.

White-collar crime is an increasing focus for gangs. The report cited the arrest of a member in a Los Angeles gang called Florencia 13 for operating a lab that manufactured pirated video games.

Gang membership is increasing most significantly in the Northeast and Southeast regions of the country and many communities are experiencing an increase in ethnic-based gangs such as African, Asian and Caribbean gangs, said the report, which is based on federal, state and local law enforcement data.

To read more:

Saturday, October 22, 2011

Executed Man Penned Remorseless Letter to Archbishop

Manuel Valle was executed in Florida on September 28.  On October 3, Miami Archbishop Thomas Wenski received a letter from Valle written a couple of days before his execution, according to the Miami Herald.
In the two-page letter, written out in small, neat script, Valle penned his thoughts about his family, his forthcoming death and being at peace with God.
“I am well, at peace, and prepared for whatever God’s will has in store for me within the next week,” Valle wrote Bishop Wenski, one of several Florida bishops who had asked Governor Rick Scott to spare Valle’s life, reported the Herald.
Valle killed Coral Gables Police Officer Louis Pena, a father of four, after a routine traffic stop on a Sunday afternoon in 1978. After two convictions, three death sentences and countless appeals, the 61-year-old Valle was put to death last month at Florida State Prison. He had spent more than half his life locked up.
Valle’s letter is most striking for what he failed to say: He did not mention Officer Pena, the man he shot and killed. He did not mention Pena’s family. Neither did he neither mention the crime nor repent his actions.
Valle’s final words to Bishop Wenski disgusted Pena’s family.
“As far as I’m concerned, he has no remorse,” said Jeffrey Frau, Pena’s half brother, who got a copy of the letter from a Herald news partner. “He doesn’t care what he’s done to our family. He only cares about himself. “Our lives have been destroyed forever.”

Friday, October 21, 2011

Alabama Executes Man Who Killed 6-Month-Old Son

The 38th Execution of 2011
Alabama executed Christopher Thomas Johnson for the brutal murder of his six-month-old son in 2005. Johnson plead guilty to capital murder in the death of 6-month-old Elias Ocean Johnson. He requested the death penalty, granted in 2007, and waived all appeals.
According Reuters, Johnson's last words before being put to death by lethal injection were, "Game over." He was pronounced dead at 6:25 p.m. local time on October 20, 2011 at the Holman Correctional Facility in Atmore.
The forensic pathologist who performed the child's autopsy testified during the trial that the infant suffered at least 85 separate injuries. Suffocation and head trauma were cited as the causes of death.
Johnson represented himself at trial. He testified he killed his son because he "hated his wife, didn't want to be near her and didn't want to worry about her threats of putting him in jail for alimony or child support," according to the state Attorney General's Office.
Johnson offered no mitigating circumstances for his crime, and the trial court found the "the heinous, atrocious and cruel" nature of the murder outweighed any justifications that could have been offered, records show.
Johnson was the sixth inmate executed in Alabama in 2011.
To read more:

Thursday, October 20, 2011

Minnesota: Crime Rates in Question

A new survey reveals that a significant proportion of crime in Minnesota goes unreported. Crime is reportedly down, but the results make it clear that the police record is incomplete, according to Minnesota Public Radio.
In a survey of 6,000 Minnesotans, respondents listed numerous crimes that they didn't report to police, including sexual assaults, domestic violence and burglaries. Women had the highest rates of unreported crimes in the survey.
Unreported crime isn't new, reported Minnesota Public Radio. Although the survey indicates crime rates that contrast the official numbers which show reported crime are down, it does not indicate rates of unreported crime that are dramatically different from past surveys.
Preliminary state 2010 crime victim survey numbers show:
Twelve percent of Minnesotans reported being stalked. Of those, 19 percent reported the activity to police.
Among those surveyed, 75 percent who were victims of aggravated assault or a "stickup" or a robbery reported the incident, one in four did not.
Overall, however, Minnesota's reported crime rate in 2010 was down nearly 3 percent from the year before.  Falling crime rates and unreported crime leads one to ask--are falling rates as depicted in the Uniform Crime Report and the National Crime Victimization Survey giving us an accurate picture of crime in the United States.

To read more:

Wednesday, October 19, 2011

12-Year-Old Florida Boy Faces Life In Prison

A 12-year-old Florida boy, Cristian Fernandez, may spend the rest of his life in jail for the murder of his 2-year-old half brother.

He allegedly killed the toddler in March. Police contend the 2-year-old was hospitalized on March 14 after being allegedly "physically battered" by Fernandez, according to The New York Daily News.

The child suffered "a skull fracture, subdural hemorrhage, subdural hematoma, bruising on the left eye and bruising on the bridge of his nose."

While the toddler was in the hospital, police said Fernandez confessed to beating him. He also allegedly admitted to having broken his younger brother's leg in January.

Last week, the boy was indicted by a grand jury for first-degree murder, reported the Daily News.

The case draws parallels to the Pennsylvania case of Jordan Brown. Jordan was 11-years-old when he allegedly shot his father’s pregnant girlfriend. Brown allegedly put a shot gun to her head as she lie asleep and then he left with his sister for school.

Brown was originally being tried as an adult after a judge refused to decertify his case to juvenile court. The judge ruled that since Jordan had not admitted his crime he was not amenable to treatment. He faced life in prison without the possibility of parole.

Jordan appealed the judge’s ruling the case was remanded for a new decertification hearing and the judge changed his mind and decertified the case to juvenile court. He now faces an adjudication hearing--trial--in juvenile court.

If convicted in Florida, Fernandez would be sentenced to life in prison without parole. At one time Florida had 116 of the country's 181 juveniles serving life for non-murder crimes. However, the U.S. Supreme Court struck down life sentences for non-murder conviction in the case of Graham v. Florida, 560 U.S. ___ (2010). Juveniles convicted of murder are still subject to life in prison.

Fernandez's mother was only 12 years old when she gave birth to him. The two ended up in foster care together and his grandmother was a drug addict. The boy was also the victim of child abuse at the hands of his stepfather, who shot and killed himself in front of the boy last year, reported the Daily News.

"It is a complex case," Assistant Public Defender Rob Mason told the Daily News. "The whole system has failed him."

To read more:

Tuesday, October 18, 2011

U.S. Supreme Court Takes Another Look at Plea Bargains

This fall, the U.S. Supreme Court will hear a pair of cases that have the potential to impact the way criminal defense attorneys interact with their clients with regard to pleading guilty or going to trial.

Pennsylvania Law Weekly
October 18, 2011

In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.

Executions Have Slowed: 2011 Will Have Fewer Than 2010

The U.S. is on course to have fewer executions in 2011 than in 2010.  Last, year there were 46 executions nationwide.  The last execution was of John David Duty carried out in Oklahoma on December 16.

As of today, there have been 37 executions in 2011.  There are seven more execution scheduled between October 20 and the end of the year.  There has not yet been an execution this month.  The last execution was that of Manuel Valle on September 28 in Florida.

Last year, there were only four execution in the U.S. after October 18.  The late fall is traditionally a slow period for executions.  It is unlikely even that the seven executions scheduled will be carried out.  Four out of six executions scheduled for this month have been stayed or commuted.

The next scheduled execution is for Christopher Johnson in Alabama on Thursday. Alabama Assistant Attorney General Clay Crenshaw said Johnson essentially volunteered for execution because he refused to pursue any appeals and filed court papers in May saying he didn't want anyone to seek any on his behalf.

According to the Associated Press, Johnson served as his own attorney at his trial in Escambia County in 2006. He testified that he intentionally hit and suffocated his son, Elias Ocean Johnson, at their home on Feb. 20, 2005, because he hated his wife, didn't want to be near her and didn't want to worry about her threats of putting him in jail for alimony or child support.

He asked for the death penalty. The jury obliged by unanimously recommending the death penalty and the judge agreed.

To read more:

Monday, October 17, 2011

Catholic Academics Call for End to Death Penalty

The Catholic Moral Theology has published an appeal for the abolition of the death penalty in the United States. At least, 160 leading Catholic academics have signed the appeal. The appeal quoted the U.S. conference of Catholic Bishops:

the sanction of death, when it is not necessary to protect society, violates respect for human life and dignity…Its application is deeply flawed and can be irreversibly wrong, is prone to errors, and is biased by factors such as race, the quality of legal representation, and where the crime was committed. We have other ways to punish criminals and protect society.

The scholars frankly admitted that the church had, in the past, advocated the death penalty for certain categories of offenses, but noted that, in recent times, with more secure prison facilities, the church has shifted its position to an unconditionally "pro-life" stance.

The scholars, from a theological perspective of assessment, wondered why some Christians insist on the death penalty on biblical grounds. They quoted the theologian Karl Barth, who said:

Now that Jesus Christ has been nailed to the cross for the sins of the world, how can we still use the thought of expiation to establish the death penalty?

The scholars decried the death sentences of more than 3,200 inmates on death row and the 1,268 executions since the the Supreme Court reinstated the death penalty in 1976, and urged the nation to abolish the capital punishment, which they say, is a threat to the "human life and dignity."

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Sunday, October 16, 2011

Innocent Yet Pleading Guilty: It Happens With the Court's Acquiescence

Over the past three weeks my blog, The Cautionary Instruction, at The Pittsburgh Post-Gazette legal web page Ispo Facto examined the Report of the Advisory Committee on Wrongful Convictions.  The Committee Report and the Independent Report issued by the Law Enforcement and Victim Representatives of the committee addressed such things at actual innocence, eyewitness identification and false confessions.

With all the focus on wrongful convictions it may be surprising to learn that the law actually provides for a scenario where a defendant can knowingly plead guilty to a crime for which she maintains her innocence.

According to the U.S. Department of Justice an Alford plea, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), "exists when a defendant maintains his or her innocence with respect to the charge to which he or she offers to plead guilty."

Robin L. Barton in her article When a Guilty Plea Isn't an Admission of Guilt explains an Alford plea as one that permits a defendant to claim that he didn’t commit the crimes he is accused of,  but acknowledge that the prosecution likely has sufficient evidence to convict him.

In 1963, Henry Alford was indicted for first degree murder, a capital offense in North Carolina for which he could have received the death penalty if convicted. Alford claimed that he was innocent but was faced with strong evidence of guilt.

Alford’s attorney recommended that he plead guilty. The prosecution agreed to allow him to plead guilty to second degree murder. After a summary of the prosecution’s evidence, Alford took the stand and testified that he hadn’t committed the murder, but was pleading guilty because he faced the threat of the death penalty if he didn’t.

The court accepted his guilty plea.  Alford appealed, arguing that his plea was invalid because it was the product of fear and coercion due to the threat of execution.

The U.S. Supreme Court upheld his plea as knowing and voluntary. Justice Byron White, writing for the majority, declared, “An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

The Court found that because the state had a strong first degree murder case against Alford, he reasonably and rationally insisted on his plea because, in his view, he had nothing to gain by a trial and much to gain by pleading guilty.

After entering an Alford plea, a defendant has a criminal record, just as if he’d entered a “typical” guilty plea. And for sentencing purposes, an Alford plea is no different than any other guilty plea.

However, the defendant can candidly admit that he is innocent but is pleading guilty for tactical reason.  Frankly, on its face the Alford plea may be the most wrongful kind of wrongful conviction.  A defendant who asserts his innocence and voluntarily goes to jail.

Alford pleas also suggests the silent acquiescence of the Court to what has become known as the "trial penalty."  Defendants who exercise their right to trial are often penalized with longer sentences if convicted.  An Alford plea is often made by a defendant who is afraid of the sentence he might receive after being convicted at trial, so in theory he pleads to a lesser sentence while maintaining his innocence. 

Alford pleas have received the imprimatur of the High Court and wide aacceptance by trial courts nationwide nevertheless the theory behind the plea is troubling.

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Saturday, October 15, 2011

Jonesing for a Bridge

The state police in New Castle, Pennsylvania arrested two men in connection with the theft of a bridge.  That's right these guys weren't stealing copper wiring or  copper plumbing--they stole a bridge!

Benjamin Jones and Alexander Jones, the police didn't mention whether they are related but we know know they have a common interest--bridge theft, were charged with criminal mischief, theft and receiving stolen property for removing a 40-foot by 15-foot steel bridge from a wooded area sometime in September, according to the Youngstown Vindicator.

Hello, no one notices two guys walking off with a 40-foot bridge.  They have to brag about their hefty heist at the local watering hole to get arrested.  Sure, its a crime to steal someone's 40-foot bridge but you have to give these guys some love for their ambition.  The police better watch out in New Castle, if other criminals want to keep up with the Joneses--who knows someone might try to "steal" a bank rather than "rob" it.

U.S. Supreme Court Will Examine Double-Jeopardy

The U.S. Supreme Court has agreed to hear a case that will test the parameters of double-jeopardy protection contained in the Fifth Amendment to the U.S. Constitution, according to TIME magazine.
Arkansas prosecutors want to try Alex Blueford on capital-murder charges because they believe he hit his girlfriend's 19-month-old toddler, Thomas McFadden Jr., causing his death.
The state already tried Blueford once and without success. During the 2009 trial, Blueford told jurors he had lied repeatedly to the doctors as they rushed to save the boy's life because he was afraid no one would believe him when he explained that his elbow connected to the side of Thomas' head only after the boy had startled him from behind. He insisted it was an accident, reported TIME.
 The jurors apparently believed him. After about 4½ hours of deliberations, the jury forewoman sent a message to the judge saying they were having trouble deciding. According to TIME, back in open court, according to a partial court transcript, the jury forewoman explained that they had voted unanimously — 12 to 0 — for acquittal on the capital-murder charge, and then voted 12 to 0 for acquittal on a charge of first-degree murder. But they were split over a third charge, manslaughter, for which the vote was 9 to 3 to convict. They hadn't yet begun discussing a fourth charge, a misdemeanor charge of negligent homicide, which would have resulted in Blueford's immediate release.
Blueford's attorneys asked the judge to enter the announcement as a verdict on the two most serious charges, but the judge declined. He told the jury to try again and when they reported they were still deadlocked on the manslaughter charge, he immediately declared a mistrial.
According to TIME, prosecutors moved quickly to bring charges against Blueford a second time and readied for a second trial. His attorneys asked the Arkansas Supreme Court to throw out the two murder charges, arguing that another trial would be exactly the kind of double jeopardy the Bill of Rights is designed to protect against. The court disagreed, noting that the forewoman's statements in open court about the unanimous votes to acquit didn't amount to a real verdict because the decisions were never written down on a verdict form and entered into the record. "It is axiomatic that a judgment is not valid until entered of record," the Arkansas Supreme Court ruled in January. "We further stated in [a previous case] that a judgment rendered in open court is not controlling until entered or filed of record. The mere reading of the jury's verdict in open court does not constitute an acquittal."
That a defendant would have to endure a second trial after a seeming victory in the first round is nothing new. Prosecutors routinely retry defendants after a hung jury.  But Blueford's case is different, say his attorneys and dozens of law professors and others who have filed friend-of-the-court briefs in his support. For one thing, the jury didn't fail to agree that he was guilty — as with Blagojevich's first case — they actually voted on both serious charges, and in both cases were unanimous that he was not guilty. Lawyer Charles Curtis, a partner at Arnold & Porter LLP working pro bono on the case, co-wrote an amicus brief on behalf of more than a dozen criminal-law professors supporting Blueford's request for a Supreme Court hearing. He told TIME that allowing the Arkansas Supreme Court's ruling to stand in this case would be a triumph of form over substance. Just because a jury's unanimous decision isn't read into the record as a formal verdict, and filed in written form, it doesn't mean the 12 jurors hadn't made a decision.
The Arkansas Attroney General's office argues that the trial transcript reveals nothing more than "that a discussion transpired between the trial judge and the jury foreperson without any attendant formalities and before the jury had concluded its deliberations, reported TIME." Its lawyers argue that the state supreme court got it right when it ruled against Blueford in an opinion that "speaks to the well-established requirement that any final verdict must be presented and received in such manner that each juror appreciates the finality and gravity of the verdict and unanimously affirms it."
The ruling isn't expected until sometime next year.

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Friday, October 14, 2011

Capital punishment is the least of the justice system's problems

The Philadelphia Inquirer
October 14, 2011

Pennsylvania has carried out only three executions since it reinstated the death penalty in 1976. All three were of men who volunteered to be executed.

The state's dormant death penalty contrasts starkly with the 236 executions presided over by Texas Gov. Rick Perry, and also with the death chamber at the Georgia Diagnostic and Classification Center in Butts County, where the execution of convicted killer Troy Davis caused a media frenzy last month.

By midnight on Sept. 21, despite the notoriety, Davis was dead. So was his victim, Michael Allen MacPhail, along with about 675,000 others who have been murdered in this country since the death penalty was reinstated.

Only a tiny fraction of those who kill ultimately pay with their lives. Since 1976, 1,271 men and women have been executed in the United States. More important, a much greater number of those responsible for murder have never even been arrested. A killer is 200 times more likely to get away with murder than to be executed for it.

That number has not improved. In 1961, 91 percent of killings were "cleared" - the term used by police to indicate an arrest has been made. In 2010, only 64 percent were. That means the killers of more than 5,000 people in 2010 alone could be at large, including the killers of more than 150 in Pennsylvania.

Where's the outrage over that? Why haven't the media lamented those 5,000 families who lost a loved one by the hand of someone who has never been identified?

The sorrow that envelops the family of a murder victim, particularly when the murder is unsolved, permeates entire communities. Unsolved homicides also hurt public confidence in the police and diminish police productivity, according to the Police Executive Research Forum. And, to the extent that offenders literally "get away with murder" and the public knows it, deterrence becomes more difficult.

Officer MacPhail's murder was solved, but his killer became the subject of considerable attention and speculation. Nevertheless, death penalty opponents cannot point to a single case in which an innocent person has been executed in the past 35 years - although they have certainly tried. One of their favorite cases was that of Roger Coleman, who was convicted of the rape and murder of his sister-in-law in Virginia. Before he became a suspect, Coleman had the audacity to serve as one of the victim's pallbearers.

Coleman's protestations of innocence became a cause célèbre, landing him on the cover of Time magazine and gaining the badly misplaced trust of many in the anti-death penalty movement. As he was strapped into the electric chair in May 1992, he said, "An innocent man is going to be murdered tonight." Sixteen years after his execution, the governor of Virginia ordered posthumous DNA testing that confirmed Coleman's guilt.

The U.S. Supreme Court ordered an evidentiary hearing in the Troy Davis case in June 2010. Two months later, a U.S. District Court in Georgia ruled: "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. . . . After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence. ..." Davis was finally executed 22 years after the killing of MacPhail.

An estimated 230,000 killings remain unsolved since the reinstatement of capital punishment. Yet more time, attention, and resources continue to be focused on the rare challenge to an execution that somehow captures the morbid curiosity of the public. Whether a condemned killer lives or dies strikes me as far less important than the literally thousands of killers who are walking America's streets.

Visit the Philadelphia Inquirer

The Cautionary Instruction: A final look at wrongful convictions--False confessions

The Pittsburgh Post-Gazette/Ipso Facto
October 14, 2011

Last month, the Advisory Committee on Wrongful Convictions issued its report (Committee Report) totaling 308 pages. Attached to the Committee Report is Appendix J, “Comments of Law Enforcement and Victim Group Representatives.” The comments consisted of six pages.

The Law Enforcement and Victim Group Representatives actually prepared their own Independent Report -- Appendix J was merely a summary.

Over the last several weeks, The Cautionary Instruction has taken a look at the methodology of the Committee Report and the competing positions with regard to eyewitness identification. Today’s post will take a final look at the Committee Report -- focusing on false confessions and electronic recording of interrogations ...

About 15 percent of the Committee Report is dedicated to electronic recording of interrogations. The Committee Report suggested that four of 11 Pennsylvania ‘exonerees’ (the Independent Report acknowledges only one of those 11 as actual ‘exonerees’) listed a false confession, or another incriminating admission, as a contributing factor in their conviction. It is worth noting that recording requirements are currently on the books in roughly a dozen states and are in practice in many individual jurisdictions, but this practice remains the exception, not the rule.

The Committee Report proposed a statutory mandate requiring all custodial interrogations be electronically recorded. The Committee Report found that the vast majority of false confessions come “under stress of the interrogation.”
The Independent Report is not opposed to examining the benefit of using electronic recording during police interrogations. The Independent Report is opposed to mandating the use of electronic recording without first implementing a pilot project under the monitoring of the Pennsylvania Commission on Crime and Delinquency.

The Independent Report suggested that a state-wide mandate, with the sanction of an adverse jury instruction available to the defense in cases where an interrogation and confession were not recorded, is not prudent.

The Independent Report also raised questions about the cost and uniform implementation of an electronic recording mandate, “The costs and other practical difficulties of such an arrangement cannot be known unless they are studied in a pilot program.”

The Committee Report recommendation statutorily mandating the electronic recording of custodial interrogations without first testing the feasibility of such a mandate seems to interject a sense of urgency into a process that has dragged on for five years.

The object of this process was to insure that the guilty were held accountable and the innocent were not put in jeopardy of wrongful conviction. A carefully crafted and well monitored pilot program for electronic recording would do well to achieve both goals and enhance the safety and well-being of all Pennsylvanians.

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Thursday, October 13, 2011

Florida Legislator: Bring Back the Firing Squad

Saying it's time to stop letting convicted killers "get off that easy," a Florida state lawmaker wants to use firing squads or the electric chair for those on Death Row, according to the Miami Herald.

Rep. Brad Drake filed a bill this week that would end the use of lethal injection in Florida executions. Instead those with a death sentence could choose between electrocution or a firing squad, under the proposal.

Drake told the Herald the idea came to him after having a conversation with a constituent at a DeFuniak Springs Waffle House over the legal battles associated with the Sept. 28 execution of Manuel Valle.

Valle's lawyers tried to stop the execution by arguing that a new lethal drug cocktail would cause him pain and therefore constitute cruel and unusual punishment. Courts, however, rejected that argument and let the execution go forward.

He told the Herald, that government is spending too much time listening to advocacy groups and instead should put in place a death sentence that forces convicted murderers to contemplate their fates.

Drake said lethal injection just allows a person to die in their sleep while a firing squad or electrocution would force Death Row inmates to think about their punishment "every morning."

"I think if you ask a hundred people, not even talking to criminals, how would you like to die, if you were drowned, if you were shot, and if you say you were put to sleep, 90 percent of some of the people would say I want to be put to sleep," Drake told the Herald. "Let's put our pants back on the right way."

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Wednesday, October 12, 2011

Cop Killer Mumia Abul-Jamal Gets New Sentencing Hearing

This week, the U.S. Supreme Court cleared the way for death-row inmate Mumia Abu-Jamal to get a new sentencing hearing for the killing of a Philadelphia police officer 30 years ago, according to CNN.

The high court rejected a request from the Philadelphia District Attorney's Office to overturn the federal appeals court decision declaring the death sentence unconstitutional for Abu-Jamal, a former Black Panther who was convicted in 1982 of gunning down a Philadelphia police officer.

Abu-Jamal was convicted and sentenced to death for the 1981 killing of Officer Daniel Faulkner. Witnesses testified that Abu-Jamal shot Faulkner in the back and head after the officer pulled his brother over during a late-night traffic stop, reported CNN.

Abu-Jamal, once known as Wesley Cook, was wounded in the encounter and later confessed to the killing, according to other testimony.

According to CNN, he has been on death row at a state prison in southwest Pennsylvania, where he's been an outspoken activist from behind bars -- claiming there were procedural errors during his capital sentencing, and that too few blacks were on the jury. The case has attracted international attention, amid charges of prosecutorial misconduct.

Abu-Jamal will be automatically sentenced to life in prison without the possibility of parole unless Philadelphia District Attorney Seth Williams seeks another death sentence from a new jury.

To read more:

Tuesday, October 11, 2011

PA Supreme Court: Mass Murderer Unfit for Execution

The state Supreme Court has unanimously decided that George Banks convicted of mass murder nearly 30 years ago was mentally unfit to be put to death because he lacked a "rational understanding" of the death penalty or its reasons for application.

According to the Associated Press, among Banks' delusions are his belief that a police conspiracy resulted in at least two of his victims' deaths, that he was being poisoned in prison by the state Corrections Department, and that he was "supposed to be exempt" from execution or that his death sentence had been vacated "by God, Jesus, the governor, George Bush or some combination of the same," the ruling said.

While the Supreme Court in Commonwealth v. Banks reached the same decision last month that lower courts in the case had several times before, it did so with a fleshed-out 32-page opinion, according to The Legal Intelligencer.
Although Banks — convicted of a 13-person killing spree, including five of his children — has shown the ability to draw a connection between his conviction and once-impending death sentence, defense experts converged on the notion that the link was "irrational and illogical." They said Banks' mental delusions had become "so interwoven with the factual understanding of his circumstances" that he was
mentally unfit for the death penalty, reported The Legal Intelligencer.

The Supreme Court then invoked plenary jurisdiction in late 2004 to resolve that issue, along with other questions that the leading U.S. precedent — Ford v. Wainwright — seemed to leave for the state courts to figure out themselves. In Ford , the U.S. Supreme Court upheld the common law rule that the insane cannot be put to death, but Castille said it did not provide guidance for state courts' procedural review of competency claims or "substantive standards" to govern such review.

A subsequent U.S. Supreme Court decision came down in 2007 — Panetti v. Quarterman — which clarified the due process boundaries "when a colorable competency challenge is raised," Castille said. But, he added, the case still did not "direct the specific vehicle for pursuing such relief."

According to The Legal Intelligencer, where Ford established case law that the Eighth Amendment prohibited execution of the insane, Panetti expanded upon the ruling by "shedding more light on how competency should be evaluated under the Eighth Amendment," Castille said.

Panetti , which came down between Banks' first two competency hearings before Conahan, was instructive.

"Following Panetti , it is clear that the Eighth Amendment requires a petitioner not only to have a factual understanding of the penalty and the reasons for it, but also a rational understanding of it," Castille said. "Delusions or other psychotic symptoms cannot be simply discounted because the petitioner has a cognitive awareness of his circumstances," reported The Legal Intelligencer.

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Monday, October 10, 2011

Domestic Violence No Longer a Crime in Topeka, KS?

If you batter your spouse in Topeka, Kansas you will not be prosecuted. Shawnee County, Kansas District Attorney Chad Taylor announced last month he would no longer prosecute misdemeanors, including domestic batteries, committed in Topeka, according to the Topeka Capital-Journal

Taylor said he could no longer afford to do so after commissioners approved a 2012 budget cutting the district attorney’s budget for 2012 by 10 percent, or $347,765, from its 2011 amount of $3,477,651.

Taylor had announced before commissioners finalized the reduction in August that it would force him to stop prosecuting domestic batteries committed in Topeka. He indicated his move would require the Topeka city attorney’s office to begin prosecuting those crimes. The city says it lacks the resources to prosecute the cases, reported the Capital-Journal.

Topeka police Captain Brian Desch his department hs made 18 arrests in connection with misdemeanor domestic battery since September 8, but all of those taken into custody were released from the Shawnee County Jail after charges weren’t filed.

According to the Capital-Journal, the city council plans to consider repealing the part of the city code that bans domestic battery, which the city attorney’s office says would require Taylor to again begin prosecuting domestic batteries committed in Topeka.

In the meantime, women (a significant majority of domestic violence victims are women) remain vulnerable to a system that would have the audacity to use battered women as a bargaining chip during a budget squabble. 

The DA's charge is to prosecute crime.  The DA should prosecute all crime until it impossible to do so.  When the money runs out and he is the last man standing--then he can point the finger at someone else.  When he took the oath it didn't say "I'll do my duty as long as I have ample resoures." 

You'd like to think that Topeka, or any city in America, deserves better. 

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Sunday, October 9, 2011

Prosecutors overtake the authority of judges

Youngstown Vindicator
October 9, 2011

Prosecutors are the most powerful figures in the criminal justice system. The proliferation of criminal statutes along with sentence enhancements and mandatory minimum sentencing have constricted the discretion and authority of judges and expanded the power of prosecutors.
The shift in power is no more evident than in the transition from a trial-dominated system to one dependent on the negotiated plea. Recently, the New York Times provided a host of statistics that underscored this shift. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from 8 percent in 1976. That is fewer than one in 40 felony cases—35 years ago the ratio was about 1 in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal- trial verdicts in federal district courts was a little more than 4 to 1; by last year, it was almost 32 to one.

How do prosecutors influence the plea-bargaining process? Take a defendant arrested within 1,000 feet of a school with a sizable amount of heroin and a gun. With mandatory sentencing for a large about of heroin, enhancements for having a gun and being near a school, the defendant could theoretically face up to 12 years in prison. The defendant is offered a plea of five years or the option of trial with12 years on the line. The judge has little leverage as she is bound by law to impose the mandatory penalties as well as the enhancements.
“We now have an incredible concentration of power in the hands of prosecutors,” Richard E. Myers II, a former assistant U.S. attorney and a professor at the University of North Carolina told the Times. He reported that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
This is not to suggest that all of that power is in the wrong hands. No other individual is better positioned to wield that power than a prosecutor. A prosecutor is keenly aware of the strengths and weaknesses of the state’s case. The prosecutor has interviewed witnesses and thoroughly examined evidence. No figure in the justice system is in a better position to evaluate a case and decide what is fair.
The U.S. Supreme Court has held that plea-bargaining is not a right protected by the Constitution. There is no substantive or procedural right to engage in plea negotiations. Even if a defendant accepted a plea offer, there is no legal entitlement to be sentenced in accordance with the agreement. A judge can reject a plea, or in some jurisdictions, impose a sentence that is not in accordance with the negotiated plea.

The U.S Supreme Court has been reluctant to take on the plea-bargaining process. “It is a very hard question why the Supreme Court is so sensitive to creating trial rights which make trial ever more complicated and therefore unworkable on the one hand, and on the other hand so insensitive to the resulting evasion which dominates the system,” John Langben, a Yale Law Professor, told National Public Radio.
Trial has become so complicated and time-consuming that the criminal justice system would grind to a halt if every case went to trial. The plea- bargain process provides a benefit to the defendant in a more lenient sentence in exchange for a plea and prevents the collapse of an overburdened system.
The U.S. Supreme Court has, at long last, agreed to hear two cases this fall that may have an impact on plea bargaining. In Lafler v. Cooper, and Missouri v. Frye, the High Court will consider whether defendants who were not told of favorable plea offers, or were advised to reject them, may pursue claims pursuant to the Sixth Amendment for ineffective assistance of counsel.

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Saturday, October 8, 2011

The Cautionary Instruction: Some members of Wrongful Convictions Committee take issue with recommendations

The Pittsburgh Post-Gazette/Ipso Facto
October 7, 2011

The Advisory Committee on Wrongful Convictions issued its long awaited report  last month. The Committee Report was accompanied by an Independent Report prepared by the law enforcement and victim representative members of the committee which can be found starting at Page 309.

Last week, The Cautionary Instruction explored some of the fundamental differences between the two reports. Today’s blog will examine the contentious positions espoused in the competing reports regarding eyewitness identification.

According to the Committee Report at least a dozen states have adopted practices for obtaining and preserving eyewitness identifications. I recently blogged about the New Jersey Supreme Court’s comprehensive decision regarding eyewitness identification.

With all the focus on eyewitness identification one might think a consensus was reached in Pennsylvania on best practices. That is not the case and here is why.

The Committee Report recommended, in part, the statutory adoption of a series of procedures for conducting lineups. Initially, the Committee Report recommended that lineup fillers, those individuals who are not suspects, should match the description of the culprit, not the suspect. That seems logical and the Independent Report takes no issue with that recommendation.

The acrimony begins with pre-lineup instructions. The Committee Report recommended instructions that included:

• The culprit might or might not be present;
• The witness should not feel compelled to make any identification;
• Blind administration, the officer conducting the lineup must not know the suspect;
• Police will continue to investigate the incident regardless of whether an ID is made.

The Independent Report suggested, “This proposal is unnecessary, impractical, and misguided.” The Independent Report took issue with the instructions, “The proposed statute further requires police at any identification procedure to issue misleading instructions to the witness.” Such as, “the investigation will continue,” even if the police intend to terminate the investigation following the lineup.

The Independent Report further argued that, “Blind administration is logistically impossible in small- and medium-sized police departments.” Many of the hundreds and hundreds of police departments in Pennsylvania lack the manpower to provide “blind” lineups.

The Committee Report also recommended that after identification is made, “A statement of the witnesses confidence in the identification should be obtained.” The Independent Report attacked the confidence statement with particular vehemence -- “A ‘confidence statement’ is designed to facilitate gamesmanship at trial.” The Independent Report went on to suggest, “Proposals that encourage such disingenuous tactics only further undermine the overall legitimacy of the neutrality of the principal [Committee] report’s recommendations.”

All the acrimony aside, both reports agreed that training for police officers on non-suggestive identification procedures would be helpful in identifying the guilty and clearing the innocent.

Edward M. Marsico, Jr., Dauphin County District Attorney recently wrote in the Harrisburg Patriot-News, “The faulty assumptions and predetermined conclusions from the academics and criminal defense attorneys that dominated the committee produced a fundamentally flawed report that deserves additional scrutiny.” Scrutiny will continue next week, with a look at false confessions.

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Tennessee Woman Only Days from Execution Walks Free

Gaile Owens of Tennessee was released from prison after sitting on death row for a quarter-century for the killing of her husband, according to Reuters.  Owens was at one time only days from being executed and is now a free person.
Owens had been scheduled to die by lethal injection September 28, 2010, but that sentence was commuted by then Governor Phil Bredesen.  The Governor said at the time that he spared Owens after a review showed she had admitted her guilt and that other people who committed similar crimes generally drew lesser sentences.
Owens had been sentenced to die after being found guilty in 1986 of arranging to have her husband killed.Evidence showed she had solicited several men in poor Memphis neighborhoods with offers of up to $10,000 to kill her husband Ron Owens.
Sidney Porterfield, the man Owens hired, used a tire iron to beat her husband in the couple's suburban Memphis home while Owens and their two sons were away.  Porterfield remains on death row, reported Reuters.
During her parole hearing, Owens testified about sexual assaults and physical abuse she suffered from her husband that she said led her in 1984 to contract a man to kill him. She said that during her court trial in 1986 she hadn't talked about abuse because she felt it would harm her children.
A year to the day after she was scheduled to be the first woman executed in Tennessee in more than a century, the Parole board announced that she would be given her freedom.