Wednesday, February 29, 2012

12-year-old Indiana boy's adult sentence to be reviewed

The Indiana Court of Appeals will review 25 year sentence

Paul Henry Gingerich  was 12 years and 2 months old when he and a 15 year-old friend shot and killled the friend's step-father. He was a sixth-grader at an Indiana Middle School. Paul had no prior criminal record. A psychologist who evaluated Paul said the he lacked a basic understanding of the court proceedings and wasn't competent to stand trial as an adult, reported the Indianapolis Star.

Nonetheless, Kosciusko Circuit Judge Rex Reed did not buy the defense's theory that Paul had been bullied into the crime by his older accomplice. He declared them both fit to stand trial as adults and found them equally culpable. Each was sentence to 25 years in prison.

The decision was remarkable in light of the fact that, from 2000 to 2010, only 13 children in Indiana were sentenced as adults for murder or attempted murder. None was younger than 14. Juveniles as young as 10 can be tried as adults in Indiana, reported the Star.

The Indiana Court of Appeals announced it will consider granting Paul what amounts to a legal do-over on the 2010 proceedings that led to his particular sentence. According to the Star, the issue before the court is not one of guilt, but whether it was appropriate for Judge Reed to move Paul into adult court at such a young age and to give him an adult's sentence.

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Tuesday, February 28, 2012

National Crime Prevention Council Offers Tips

 Tragedy struck an Ohio High School, where school violence leaves three students wounded and two deceased.  Early accounts of the incident report that some students say the gunman, a student himself, allegedly tweeted he would bring a gun to school, but no one took the threat seriously. 

This type of behavior demonstrates a warning that the National Crime Prevention Council (NCPC) says is a sign of potential trouble ahead.  NCPC, best known for its icon McGruff the Crime Dog, offers several helpful tips about recognizing the potential warning signs of school violence.

“Our thoughts and prayers go out to the young victims, their families, and the Chardon High School community,” said Michelle Boykins, Communications Director for NCPC.  “We are saddened by this situation but recognize the need to emphasize the warning signs of school violence in the hopes it can prevent future school violence situations.”

Seven warning signs for potential school violence include:

·         Threats to bring a weapon to school

·         Talk about retaliation or a copycat crime

·         Overhearing or seeing a “hit list” at school or online

·         Troubling essays or other disturbing writing

·         Sudden changes in a student’s behavior or mood swings

·         Students with difficulty controlling or handling conflict

·         Students experience bullying or other means of peer isolation

·         Mention of an upcoming anniversary date of a past shooting

·         Glorification of another school shooter or criminal
NCPC encourages students to come forward immediately if they know of a student who exhibits any of these warning signs, and allow authorities the opportunity to investigate it.  The popular adage, “It is better to be safe than sorry,” is important to remember. 

For more information on tips and strategies to prevent school violence, visit

Monday, February 27, 2012

Taking a hit: Police department closures, consolidation and funding cuts

Police departments in cities and towns across the country, where persistent budget problems are changing the landscape, are closing.

According to the USA Today, until the recession, law enforcement was largely spared from budget tensions, but some communities have reaped both financial savings and operational efficiencies following consolidations or mergers of their police functions. And there is evidence that local government officials are increasingly considering similar dramatic changes in pursuit of more affordable public safety options, according to local government records and law enforcement authorities.

In Pennsylvania, for example, the state police are taking on increasing patrol duties, following recent closures of town and village departments. Since 2010, at least 33 cities scattered throughout Pennsylvania have closed their agencies or scaled back law enforcement operations, according to state records.

Now, when residents of these communities dial 911, state troopers — not local beat cops — are making house calls, reported the USA Today.

A 2011 survey of the International Association of Chiefs of Police, the nation's largest association of top law enforcement officials, found that 77% of its members were providing some form of support for other agencies.

A separate report by the Major Cities Chiefs Association, a group representing the nation's 63 largest police forces, last year found that 70% were consolidating some law enforcement functions to compensate for recent budget cuts, reported the USA Today

Sunday, February 26, 2012

Former TX judge scrutinized for deal to rush death penalty case

Attorneys in Texas will argue that Stephen Barbee, a death row inmate, received ineffective counsel because of and alleged deal between his court-appointed attorney, William Ray, and the presiding judge Bob Gill.  Barbee was convicted of killing a bagel shop owner and her son, according to the Houston Chronicle.
An Associated Press story in 2010 revealed that Gill and Ray would take the unusual step of negotiating plea deals in probation cases as a means to move the docket faster.  Those pleas were between the judge and defense attorney without the input of prosecutors. Ray testified about the deals in a 2009 federal court case.
Prosecutors presented evidence at Barbee's trial, including the sentencing, and wrapped up in less than three days. In seeking a new trial, Barbee's attorneys claim the swiftness of the proceeding was because Ray and his co-counsel, Tim Moore, presented a limited and ultimately ineffective defense as an accommodation to Gill.
Barbee's application for a writ of habeas corpus in state court claims his trial attorneys tried to pressure him into pleading guilty, failed to investigate or present a case of actual innocence, fired a mitigation expert "for no apparent reason" and didn't inform a false confession expert of facts that might have changed his opinion, reported the Chronicle.
The filing contends those matters are "understandable when viewed through the prism of what we now know about Judge Gill's manner of running a court."
Gill, who left the bench in 2007 and is now an assistant district attorney in Tarrant County, declined to comment, citing the pending litigation. Ray did not return a message from The Associated Press, but he told the Fort Worth Star-Telegram on Monday that he "emphatically" denied the existence of any deal with Gill.

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Saturday, February 25, 2012

CA prison reduction plan pushing up crime rates?

Last year marked the city of Santa Clarita’s lowest crime rate ever.  Santa Clarita is about 35 miles north of Los Angeles,one of the top 25 largest cities in California.  Santa Clarita officials are concerned about the state’s early release of inmates and the transfer of state prisoners to county jails as a result of a U.S. Supreme Court ruling and the state's budget woes.

For 2011, the city’s crime rate dropped by 7.81 percent compared to 2010, according to figures released Tuesday by the Los Angeles County Sheriff’s Department.  In 2011, there were 2,833 reported incidents within the city, a decline from the 3,073 reported crimes in 2010, according to data reported by The Signal.

“We had a very low crime year,” Santa Clarita Valley Sheriff’s Station Capt. Paul Becker told The Signal. “The lowest by far that we’ve had in a long, long time.”

However, that is not the end of the story. “What we’re seeing now is crime going up,” said Becker.

A month into the new year, the city’s crime rate has increased by 11.93 percent compared to 2010 with 244 reported incidents in January in contrast to the 218 reported incidents in January 2010, the county figures show. Within the unincorporated Santa Clarita Valley, crime has increased by 44.36 percent from 2010 for the same reporting period.

According to The Signal, among the main reasons for January’s crime spike is the release of inmates who are considered by the state to be nonsexual, nonviolent and non-serious crimes. More than 300 early-release inmates are in the Antelope Valley, with an estimated 35 state parolees released early this year.

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Friday, February 24, 2012

States scramble to balance budgets by slashing corrections

Tight state budgets combined with ever increasing prison populations are forcing a number of states to explore a number of options including early release from prison, reducing some penalties for crimes and even closing prisons in the politically conservative, law and order, south.

Today, an estimated two million people are behind bars in the U.S. - making up a staggering 25 percent of the world's prisoners - with the majority of the increase since the 1980s crack down on urban violence, particularly the crack cocaine market.

According to Inter Press Service, about 15 states have already enacted changes, while others, such as Georgia, are considering them, Alison Lawrence, a policy specialist for the National Conference of State Legislatures.

For example, Alabama, Colorado, Kentucky, Pennsylvania and Rhode Island have reduced or eliminated jail or prison time for parole and probation violations, opting instead for stricter supervision and alternative sentences like community service, according to IPS.

Alabama, Florida, Kentucky, South Carolina and Tennessee have all created alternative sentencing options for low-level, low-risk offenders, such as parole and probation.

Arkansas, Louisiana, South Carolina and Texas have attempted to reduce recidivism, that is, people returning to prison, by stronger emphasis on reentry planning that is tailored to meet individuals' needs.

In addition, South Carolina, Virginia, and Tennessee have removed minimum sentencing requirements for certain drug-related violations, reported IPS.

The Cautionary Instruction: Imminent death by execution doesn’t guarantee the truth

Pittsburgh Post-Gazette/Ipso Facto
February 24, 2012

Last week, Robert Brian Waterhouse was executed by lethal injection in Florida. He was the fourth person executed in 2012. He was convicted in 1980 of murdering Deborah Kammerer of St. Petersburg, Florida whose body was found in the Tampa Bay. Kammerer had been beaten, raped and dragged into the bay, where she drowned. In 1966, Waterhouse was convicted of second-degree murder for killing a 77-year-old Long Island woman during a burglary. He was sentenced to life but was paroled after eight years.

Waterhouse remained defiant to the end. He offered no contrition or remorse. His final words, reported by the Wall Street Journal, "You are about to witness the execution of a wrongly convicted and innocent man.” Waterhouse directed blame at everyone but himself -- corrupt prosecutors, a prejudiced judge and a "rubber-stamp" appellate system .

Waterhouse’s final words were reminiscent of Virginia’s Roger Coleman, executed in 1992. Coleman was arrested in 1986 for the rape and murder of his sister-in-law. Coleman was the personification of a cold blooded killer. Before police zeroed in on him as a suspect, he served as a pallbearer at his victim’s funeral.

As Coleman sat strapped to the electric chair, moments before his execution, he made a final statement. "An innocent man is going to be murdered tonight. When my innocence is proven, I hope Americans will realize the injustice of the death penalty as all other civilized countries have.”

Coleman’s case had generated a great deal of attention. As his execution date approached, Coleman was on the cover of Time. Pope John Paul II requested clemency on his behalf. Centurion Ministries, an ardent supporter, continued to fight to clear Coleman’s name for years after his execution.

Finally, in 2006, as Virginia Governor Mark Warner was about to leave office he became the first governor in the nation to order post-execution DNA testing. Coleman supporters and death penalty abolitionists were in the unenviable position of hoping that an innocent man had been executed. Coleman was going to be the poster-child for dismantling the death penalty.

However, the anti-death penalty movement took a hit. DNA confirmed that Coleman did, in fact, rape and kill his sister-in-law. Death penalty opponents remain unable to point to a single wrongful execution.

James C. McCloskey, Centurion Ministries’ executive director, said he felt betrayed by Coleman. "How can somebody, with such equanimity, such dignity, such quiet confidence, make those his final words even though he is guilty?" McCloskey said.

It has long been accepted law that a dying declaration has the indicia of trustworthiness. A dying declaration is admissible as an exception to hearsay pursuant to Pennsylvania Rule of Evidence 804 (b)(2). Waterhouse, and certainly Coleman, cause one to pause when accepting the reliability of a statement made in contemplation of death.

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Thursday, February 23, 2012

Jordan Brown: Public will never know the outcome

The Pennsylvania Superior Court rejected an appeal by three newspapers--Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, New Castle News--to open to the public the juvenile hearing for Jordan Brown who at age 11 was accused of killing his father's pregnant fiancee by shooting her in the back of the head as she lay in bed.

As a result, Brown's adjudication hearing will be closed, and there will be no possibility of media coverage from inside the courtroom. There is also no provision in the law that permits the disclosure of the disposition of the case.

This case generated international attention.  Brown was charged as an adult with first-degree murder pursuant to Pennsylvania law.  Some outlets suggested that, if convicted as an adult, Brown would be the youngest person in the county to face life in prison without the possibility of parole.

After an appeal, Brown's case was remanded to juvenile court.  The judge closed the case to the public.  A second appeal followed. 

Pennsylvania law (42 P.S. 6307) permits limited disclosure of information regarding juvenile cases, such as name, age, address the adjudication (guilty or not guilty) and disposition (sentence).  However, that limited disclosure is restricted to felony cases were the accused is 14 years or older or for case of murder, rape and some other enumerated offenses if the accused in 12 or 13 years of age.

Brown was 11 years old when the alleged offense occurred. Therefore, the public will never officially know if Brown is adjudicated delinquent, the specific findings or disposition.

According to the Post-Gazette, the newspapers argued that the public has a constitutional right to access, even in cases involving juveniles.

"We ... conclude that the denial of public access to the juvenile proceedings at hand serves an important government interest," Judge Jacqueline O. Shogan wrote in a 33-page opinion. "Under the facts of this case, there is no alternative short of closure of the juvenile court proceedings which will adequately serve the privacy interests of [Jordan Brown.]"

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No private prisons for Pennsylvania

Pennsylvania Governor Tom Corbett proposed no increase in prison funding in next year's budget, holding the line at $1.9 billion.  This budget would stop a decades-long trend of rapidly rising costs. Similar cost pressures in other states prompted a private prison company to reach out to every state seeking to buy state run correctional facilities.

However, Pennsylvania officials say full privatization — which Ohio did with one of its prisons last year — is off the table. "We're reviewing everything, but the full and total privatization of an SCI (state correctional institution) is not something we're looking at," Department of Corrections spokeswoman Susan Bensinger told the Pittsburgh Tribune-Review.

The number of inmates in state prisons increased from a little more than 8,000 in 1980 to 51,000 this year, according to the Department of Corrections. While the prison population skyrocketed by about 540 percent, the state's population increased just 7.4 percent, reported the Tribune-Review.

State prison spending topped $1 billion for the first time in 1998 and rose to about $1.9 billion this year. According to the Tribune-Review, the rapid increase prompted some conservatives to second-guess the decades-long trend toward harsher sentencing guidelines and tough-on-crime campaigning.

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Philly Judge: Increase pay for death penalty defense

The Philadelphia Senior Judge Benjamin Lerner said low pay has led to a shortage of lawyers willing to take cases that can't be handled by the Defender Association of Philadelphia, reported the Legal Intelligencer.  He said in a 20-page report that the pay is "grossly inadequate" and that the city of Philadelphia should spend over $300,000 more per year paying death penalty lawyers.

"The adverse of consequence of this lawyer shortage is clear," Lerner said. "First, two few lawyers on the appointment list means that each of these lawyers will be asked to serve in too many capital cases at that time. ... Furthermore ... when scheduling homicide cases for trial, First Judicial District judges have found themselves increasingly competing for the same shrinking pool of lawyers. Delays in scheduling homicide trials now are usually driven by lawyers' unavailability rather than by judges' schedules."

Lerner said that the constitutionality of the pay must be determined on a case-by-case basis, not on a global basis. Lerner also wrote that private defense attorneys, who represent about 80 percent of the defendants charged with death-eligible murders, should be paid $90 per hour. According to the Legal Intelligencer, the city spent $200,000 for capital defense services in 2010, but raising the pay to $90 per hour would require the city to expend $340,000 more per year, according to Lerner's calculation.

Lerner also called upon the First Judicial District's Administrative Governing Board, which is made up of the president judges and administrative judges of the district's three courts, to jettison the current system. Lerner said a new system of pay should not differentiate between preparation and court time.

Wednesday, February 22, 2012

WV tackles prison overcrowding

The West Virginia legislature is considering a bill to ease prison crowding.  The legislation could be beneficial, not only by opening up prison beds six months early, but by helping inmates transition to the outside world -- particularly those who have served long sentences, according to Charleston Gazette .

Many inmates with a year remaining on their prison terms will opt not to have parole hearings, preferring to serve the additional time to avoid having supervision from parole officers once released.

Substance abuse treatment programs, provide inmates the incentive to pursue early release, also will help address overcrowding.

On the front-end, it would require Corrections to expand its substance abuse treatment programs for all non-violent offenders, except for those whose crimes involved children, reported the Gazette.

Upon successful completion of the treatment program, which generally runs eight months to one year, the sentencing court would have the discretion to place the individual on probation.

On the back end, inmates within six months of completing their full sentences would be placed on supervised parole. Currently, inmates who complete their sentences are discharged into society without any supervision.

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Tuesday, February 21, 2012

Oakland Mayor Jean Quran has unveiled her new "100 Blocks" anticrime effort, reported the San Francisco Chronicle.

Oakland Mayor Jean Quaran has unveiled her new "100 Blocks" anticrime effort, reported the San Francisco Chronicle.

The plan calls for virtually every local government agency-including the police department, libraries, parks department, public works, public housing and the school district-to focus resources on the 100 most violent blocks in the city.

The rationale is that most of the city's crime is somehow linked to those areas.  If those neighborhoods can improve, then crime throughout the city will fall. 

The plan will not cost the city much money because it mostly consists of reassigning existing services. But it has been slow to start.  Quan first described the plan on October 15th.

The plan sounds like a combination of "hot spot" enforcement and crime prevention.  Hot spots is a theory wherein the police focus their resources on specific areas-determined by crime mapping-that are prone to violence. 

The crime prevention efforts--job fairs, day camps and school based projects--are focused on  young people.  The mayor's office has not elaborated on the research relied upon to  establish the 100 Blocks.  Are these efforts evidence-based or is this more public relations than proven crime interdiction?

In these lean economic times it is neither wise nor prudent to throw money at unproven anticrime efforts.

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Monday, February 20, 2012

D.C. fudges homicide clearance rate

The District's 94% homicide clearance rate is not what it seems

Washington D.C. reported a 94-percent homicide clearance rate for 2011.  A clearance rate is the number of homicides committed and the number of homicides solved in a given year.  Contrast D.C.'s numbers with Baltimore's, police closed 65 of the 196 homicides reported in 2011, a true closure rate of 33 percent. The national homicide clearance rate was about 65 percent in 2010, based on the multilayer totals reported to the FBI's Uniformed Crime Report, as reported by The Washington Post.

A closer examination of D.C.'s homicides found that the department’s closure rate is a statistical mishmash that makes things seem much better than they are. The District had 108 homicides last year, police records show. A 94 percent closure rate would mean that detectives solved 102 of them. But only 62 were solved as of year’s end, for a true closure rate of 57 percent, according to records reviewed by The Washington Post.  D.C. police achieved the high closure rate last year by including about 40 cases from other years that were closed in 2011.

Police referred reporters to the FBI’sUniform Crime Reporting Web page. A separate FBI publication on law enforcement records says only that a clearance rate is calculated by dividing the number of offenses cleared by the number of offenses known. Each year, police departments across the country send their crime statistics to the FBI’s UCR Program, reporting the number of crimes that occurred in a year and the number that were closed — or solved — in that year. But the numbers are not necessarily connected to each other: Crimes cleared in one year might have occurred in another.

The manipulation of clearance rates is nothing new in D.C.  The Washington Post looked back at the clearance rate for the four years prior to 2011:

reported 79%
actual 55%

reported 76%
actual 46%

reported 75%
actual 49%

reported 70%
actual 49%

D.C. police are fudging the statistics to give citizens a false sense of security. The D.C. police are touting an enormously successful clearance rate of 94 percent which is more than nine out of ten murders solved.  In reality D.C. is solving six out of ten. 

Homicide has long been considered the most trust worthy crime statistic.  A police department had to report a homicide for what it was, a violent death.  A homicide could not be reported as an assault in the same manner a shooting without death could be changed to a disorderly conduct. 

However, D.C. has proven that police departments can even be creative with homicide statistics.

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Sunday, February 19, 2012

Two Time Killer Executed in Florida

The 4th Execution of 2012

Twice-convicted murderer Robert Brian Waterhouse was executed in Florida on February 15, 2012. Waterhouse was convicted in 1980 of murdering Deborah Kammerer of St. Petersburg, whose body was found in the Tampa Bay. She'd been beaten, raped and dragged into the bay, where she drowned. In 1966, Waterhouse had pleaded guilty to second-degree murder for killing a 77-year-old Long Island woman during a 1966 burglary. He was sentenced to life but was paroled after eight years.

Waterhouse visited for two hours with his wife Fran, whom he married behind bars about 27 years ago. He also ate a final meal of two pork chop cutlets, two eggs sunny side up, two pieces of white toast, a slice of cherry pie, a pint of butter pecan ice cream, a pint of orange juice and a pint of milk, reported the Wall Street Journal. He declined to meet with a minister or spiritual adviser.

Waterhouse remained defiant to the end.  He offered no contrition or remorse.  His final words reported by the Wall Street Journal, "You are about to witness the execution of a wrongly convicted and innocent man," Waterhouse said. He blamed his conviction on corrupt prosecutors, a prejudiced judge and a "rubber-stamp" appellate system. "The state broke its own law in destroying DNA evidence in my case so I could not prove my innocence."

Watehouse's statement is reminiscent of Roger Coleman's, the Virginia killer who denied he killed his sister-in-law.  He said "an innocent man is going to die in Virginia tonight."  His supporters pushed for DNA testing after his execution.  The DNA confirmed his guilt.

The curtain in the execution chamber at the Florida State Prison near Starke opened at 8:08 p.m., with Waterhouse already strapped to a gurney with a white sheet pulled up to his chin. According to the Wall Street Journal, the execution phase began at 8:11. He closed his eyes and took a series of deep breaths, exhaling deeply. He yawned once. Seven minutes later, a doctor entered the room, examined him briefly and pronounced him dead.

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Arizona must keep man alive to carry-out execution

Here is a bizarre death penalty scenario. Arizona prison policy requires death-row inmates facing execution be kept alive until the last minute before execution by lethal injection.

The execution protocol requires that a cardiac defibrillator "be readily available on site in the event that the inmate goes into cardiac arrest at any time prior to dispensing the chemicals; trained medical staff shall make every effort to revive the inmate should this occur."

That's right--in Arizona prison officials must do everything possible to keep a death row inmate alive so the state can kill him.

This week death-row inmate Robert Moormann, who is scheduled to be executed February 29, was transported to an unnamed hospital after falling ill at the state prison in Florence, according to the Arizona Republic . He has a history of health problems and was hospitalized twice last fall, first for an appendectomy and later for a quintuple heart bypass.

In 1984, Moormann was already imprisoned in Florence when he was granted a "compassionate furlough" to visit with his adoptive mother at a motel near the prison. During the visit, he killed her and dismembered her, dumping her body in garbage cans, reported Republic.

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Saturday, February 18, 2012

Prosecutors want greater role in NC Innocence Commission

Prosecutors want to play a bigger role in the state's Innocence Inquiry Commission, the 5-year-old panel that reviews convicted felons' claims that they didn't commit a crime, it was the first such entity in the United States, according to The News & Observer.

Prosecutors were not successful in their attempt to include in the bill a prohibition on anyone who has pleaded guilty filing a claim with the commission.

National data show that about one-quarter of all convictions overturned by DNA evidence were of people who had falsely confessed or admitted their crime, often to get a shorter sentence in a plea deal.

Johnston County District Attorney Susan Doyle and Rockingham County District Attorney Phil Berger Jr., both representing the state's prosecutors' association, outlined the changes they'd still like to see.

Prosecutors should be able to cross-examine witnesses and offer rebuttal testimony during the commission hearing, which takes place in front of the full commission, they said. Currently, prosecutors can submit written statements. "We'd like to be afforded the same opportunities the defendant has," Boyle told the The News & Observer.

Those on the other side say that phase of the process isn't adversarial but is a fact-finding hearing where it wouldn't be appropriate to present a prosecution and defense. That happens if the case goes to the three-judge panel.

District attorneys also would like to shift the burden of proof that is on defendants to the standard in criminal trials - "beyond a reasonable doubt" - instead of the current standard of "clear and convincing." Doyle said that would be especially appropriate when evidence that wasn't introduced at trial comes up. The other side opposes it, arguing that judges are in a better position than juries to know the law and don't need the higher burden of proof, reported The News & Observer.

Prosecutors also want to ensure someone who recants their trial testimony at an innocence commission hearing can be prosecuted if they perjured themselves. The commission can ask a judge to grant limited immunity in order to compel someone to testify, protecting them from prosecution for their earlier testimony. They can be prosecuted if they lie to the commission.

So far, the commission only has requested that immunity once and it was denied.

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Friday, February 17, 2012

The Cautionary Instruction: Absolute immunity insures the exercise of independent judgment

The Pittsburgh Post-Gazette/Ipso Facto
February 17, 2012

Claims of prosecutorial misconduct, although in the news, are rare and difficult to prove. Even if proven, prosecutors may remain insulated from liability.

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

In 2008, the late Alaska Senator Ted Stevens was convicted of corruption. A year later, Attorney General Eric Holder dismissed the charges. Last week, U.S. District Court Judge Emmet Sullivan ordered the release of a report that outlined "the systematic concealment of significant exculpatory evidence" and "widespread and at times intentional misconduct" by Justice Department prosecutors during Steven’s trial.

Last March, the U.S Supreme Court reviewed the conviction, exoneration and civil award to John Thompson, a Louisiana man wrongfully convicted who spent 18 years on death row. A civil jury found that New Orleans District Attorney Harry Connick, Sr. failed to train his prosecutors on their obligations to turn over documents and awarded Thompson $14 million.

In a 5-4 opinion written by Justice Clarence Thomas, the verdict was reversed, finding that a single violation did not establish a pattern of misconduct.

Last month, a Texas district judge recommended that the Texas Supreme Court convene a court of inquiry to investigate possible prosecutorial misconduct in a case prosecuted by Williamson County District Attorney Ken Anderson, now a district court judge.

Attorneys for Michael Morton, who spent 25 years in prison before being cleared by DNA, allege that Anderson failed to turn over evidence that could have helped show that Morton did not beat his wife to death.

Last week, a North Carolina judge ordered Durham County District Attorney Tracey Cline suspended pending the outcome of a hearing into allegations that Cline engaged in conduct prejudicial to the administration of justice. Cline allegedly engaged in attacks against a Superior Court judge who ruled prosecutors intentionally kept information from a defendant who wrongfully spent 12 years behind bars. Cline succeeded Mike Nifong who was removed from office following the failed prosecution of members of the Duke lacrosse team.

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

In 1976, the high court found that absolute immunity may "leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." Regardless, absolute immunity is vital, “harassment by unfounded litigation would cause a deflection of the prosecutor’s energies … (or) shade his decisions instead of exercising the independence of judgment.”

In 1949, Judge Learned Hand observed, “better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."

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Thursday, February 16, 2012

Film examines the lives of death row inmates

The Berlin Film Festival features a documentary directed by Werner Herzog, Into the Abyss. The documentary will be featured in an ID Discovery series On Death Row.  The documentary and series is based the end of the lives of several death row inmates—their crimes, their last thoughts, the way they, their families, and the families of victims cope.

Condemned murderers in Texas and Florida tell their lurid life stories as interviewer Herzog tries to fathom the reasons in four disquieting 47-minute documentaries. "They manage to be engrossing, at times even with a touch of black humor, thanks to their uncanny closeness to their subjects, nearly all of whom have committed repulsive, heinous crimes," wrote The Hollywood Reporter's Deborah Young from Berlin.

Wife-strangling, nurse-burning James Barnes seems voluble, intelligent, remorseful and unmonstrous, while Hank Skinner's "wonderfully theatrical face [and] hysterical laughter make it difficult to believe he murdered the woman he lived with and her two sons." Even when faced with the inhuman -- DEA informer Linda Carty, who had a mother killed and her newborn abducted -- Herzog shows a "relentless insistence that each person be viewed, first of all, as a human."

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Report: Massachusetts JLWOP Inconsistent and Arbitrary

Fifteen years ago, Massachusetts passed a tough juvenile sentencing law designed to punish the most depraved “super-predators” among teen killers.

An investigation by the New England Center for Investigative Reporting, published in the Worcester Telegram and Gazette reveals that that law is not being applied consistently to the most horrific juvenile murder cases, as it was intended.
Pennsylvania has more juveniles serving life without parole than any other state. Pennsylvania has more than 450 individuals now serve life-without-parole sentences for crimes committed under the age of 18. That number represents more than 20 percent of the nationwide total of juvenile lifers.
With Massachusetts and Pennsylvania as a backdrop the U.S. Supreme Court prepares this spring to tackle whether it is “cruel and unusual” punishment to sentence juveniles 14 and under to life without parole for murder.
In Massachusetts, there is no obvious pattern as to why some killers are sentenced to life without parole and others — who committed shocking, grisly crimes such as fatally beating a 2-year-old — escaped the harsh sentence. Juveniles whose crimes approach the cruelty of the teen whose case triggered the passage of the 1996 law have escaped the severe sentence, while spontaneous acts of violence by teenagers with little prior record are punished with life behind bars.
Before the change, juvenile killers could only be sentenced to serve until age 21 unless their case was transferred to adult court.
Since 1996, dozens of teens between the ages of 14 and 16 have been charged with murder in Massachusetts, but only seven have been sentenced to life without parole. In only two cases — the fatal beating with a hammer and the stabbing of a stranger in a school restroom — did their crimes approach the depravity of the murder that spawned the legislation, according to the New England Center for Investigative Reporting.
Four of the teenage lifers acted impulsively, settling petty disputes with lethal attacks, the review of murder cases shows. Only two of the seven lifers had a record of violent crime, the investigation found, and two had no criminal history at all.

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Wednesday, February 15, 2012

Company wants to buy-up prisons, solve states’ financial woes

Corrections Corporation of America, the nation's largest operator of for-profit prisons, has sent letters recently to 48 states offering to buy up their prisons as a remedy for "challenging corrections budgets." In exchange, the company is asking for a 20-year management contract, plus an assurance that the prison would remain at least 90 percent full, according to a copy of the letter obtained by The Huffington Post.

Ohio sold off one of its largest prisons to Corrections Corporation last year as a way to plug holes in its budget, and government officials estimate that outsourcing the prison could save the state $3 million annually. Louisiana Gov. Bobby Jindal (R) proposed putting three state prisons on the block last year to generate one-time revenue, but he failed to persuade state lawmakers to endorse the plan, reported The Huffington Post.

Some have raised serious doubts about the wisdom of selling off and privatizing state prisons, which could give private corporations substantially more bargaining power in long-term contracts with states. According to The Huffington Post, prison management contracts can be canceled or re-bid frequently, with the state still retaining ownership of the prison as an asset. But if a private company owns the prison, the state would have fewer options if it wanted to cut ties. Any alternatives for housing prisoners would likely cost more, such as building a new prison from scratch or finding another company to take in its inmates.

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Tuesday, February 14, 2012

Professor Epstein examines state of eyewitness identification law

Jules Epstein an associate professor of law at Widener University School of Law wrote in The Legal Intelligencer about the state of the law regarding eyewitness identification.

Nationally, legislative action, court decisions and some law enforcement initiatives have led police in many states to adopt "best practices" in eyewitness investigation. However, Pennsylvania seems to lag behind many states.

Next month, the Pennsylvania Supreme Court will hear Commonwealth v. Walker, where the principal issue is whether Pennsylvania will permit expert witness testimony in eyewitness cases. According to Epstein, "Since the 1990s, the high court has barred such evidence as unnecessary and as an improper comment on witness credibility; and the arguments being pressed now are that such evidence is necessary, as too many jurors are unaware of how mistaken identifications can occur and what factors support a conclusion that an identification is reliable, and that such expert evidence is no more a comment on credibility than an ophthalmologist who explains about a person's vision or a toxicologist discussing the impact of drinking alcohol on the ability to operate a car."

Epstein concludes, “In 1899 the Pennsylvania Supreme Court approved a jury instruction that "questions, concerning the identity of persons, animals and vehicles are liable to confusion, uncertainty and mistake." Those questions persist today, nationally and in this commonwealth; and it is in cases such as Walker that it will be determined how well trials can successfully answer them.” 

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Monday, February 13, 2012

Cross-Examination and Inaccurate Eyewitness Identification

The Pennsylvania Law Weekly
February 14, 2012

In the famous courtroom drama "12 Angry Men," rated by the American Bar Association as one of the 25 greatest legal movies of all time, juror No. 8, played by Henry Fonda, earnestly advocated for a not-guilty verdict.

Fonda started out as the only not-guilty vote. The turning point of the deliberations occurred when an older juror recalled that the state's prized eyewitness, who had observed the murder through her window as she laid in bed, had red marks on her nose left from wearing eyeglasses. The older juror asked a reserved bespectacled juror, "Do you wear your glasses when you go to bed?" The bespectacled juror responded, "No, I don't. No one wears eyeglasses to bed."

Ultimately, Fonda succeeded in convincing his fellow jurors to acquit the young defendant accused of stabbing his father. Justice prevailed not because of an effective cross-examination — apparently the eyeglasses-less observation at night through a window did not come up during trial — but rather a persistent juror in search of justice won the day.

The 1957 movie raised an issue that is only now beginning to gain traction, the reliability of eyewitness identification.

The U.S. Supreme Court recently decided Perry v. New Hampshire . The case involved the prosecution of Barion Perry, who was convicted of theft based on the testimony of a woman who said she saw the theft and described the suspect as tall and black. Then, without prompting from the police, she went to her window and identified Perry, who was standing outside next to a police officer. The identification was used to convict Perry, despite objections from his lawyers that seeing him next to the police officer could have unfairly influenced the woman's identification, the Washington Post reported.

Prior to Perry , judges were required to screen testimony for reliability when police were suspected of using suggestive tactics. Prescreening was to deter police from creating "suggestive circumstances" that point to a specific suspect, although some evidence obtained through suggestive practices was still admissible.

Perry's lawyer wanted the court to expand the prescreening practice to all identifications made under any suggestive circumstance, not just those created by the police.

"The potential unreliability of a type of evidence does not alone render its introduction at the defendant's trial fundamentally unfair," Justice Ruth Bader Ginsburg wrote on behalf of the majority in Perry . The sole reason to impose a judicial prescreening process is to deter police from creating suggestive circumstances that point to a specific suspect.

"When there is no improper police conduct there is nothing to deter," Ginsburg added. The Perry court maintained the status quo.

Ginsberg's opinion noted that the rules of evidence, jury instructions and most importantly, cross-examination are safeguards that protect an accused from the use of unreliable evidence like inaccurate eyewitness identification.

In "12 Angry Men," cross-examination failed to expose a witness' inability, due to impaired vision, to credibly identify the accused. In the movie, the failed cross-examination probably had more to do with ineffective assistance of counsel than a fissure in the mechanism of cross-examination.

In real life, things do not always work out like they do in the movies. Jules Epstein, in "The Great Engine that Couldn't: Science, Mistaken Identification, and the Limits of Cross-Examination," wrote that even effective cross-examination can be inadequate to protect an accused wrongfully convicted through the testimony of an eyewitness.

Epstein referred to a passage in James M. Doyle's book, "True Witness." Doyle wrote about the trial of Ronald Cotton. In 1984, a college student was assaulted in her apartment by an unknown intruder. Two days later, the victim picked Cotton's photograph out of a photo array. She said Cotton's photograph "looks most like her assailant." Later, the victim hesitatingly picked Cotton out of a lineup and ultimately identified him as her attacker at trial.

Cotton's defense counsel, through cross-examination, unlike in "12 Angry Men," was able to establish "the eyewitness victim, who wore eyeglasses, did not have them on during the assault." The witness later admitted the light source for the identification came from blinds, a bedroom window and lights from a stereo.

Cotton was nonetheless convicted. He was later exonerated through DNA evidence. Epstein argues that "judges and lawyers must disabuse themselves of the notion that cross-examination's great engine has the efficacy to redress and prevent the recurrence of mistaken identification." The Perry decision has essentially left, in part, cross-examination as the primary means to expose a suggestive eyewitness identification that did not directly involve the police. Thirty-five years ago, the U.S. Supreme Court established a test for determining when due process requires suppression of an out-of-court identification produced by suggestive police conduct. In Manson v. Braithwaite , instead of creating a rule of exclusion the court required judicial prescreening of the identification to determine if the suggestive procedure was reliable when judging the totality of the circumstances.

The Perry court reiterated the rule in Braithwaite . Once the conduct is determined not to be the product of the police, no matter how suggestive, the inquiry is over. It is not about a search for justice.

Some would suggest that the suppression of incriminating evidence due to police misconduct is also not in the interest of seeking justice. The search of a home without a warrant is the type of police conduct that must not be condoned regardless of what nefarious conduct is interrupted, even though, in essence, justice is denied the state.

Here, the absence of police misconduct seems to deny justice to the accused. Suggestive eyewitness identification should be subject to a judicial prescreening whether or not it was initiated by the police. To do otherwise seems to exclude a layer of protection easily accessible to an accused.

The Perry decision seems wholly inadequate in light of the growing body of scientific evidence supporting a closer look at eyewitness identification.

Since 1977, advances in the social sciences and technology have cast a new light on eyewitness identification. Since Braithwaite , hundreds of studies on eyewitness identification have been published in professional and academic journals. One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence.

The Supreme Court ignored the research and acknowledged no shortcomings in the system currently in place to challenge eyewitness identification. Only Justice Sonia Sotomayor acknowledged a potential problem with the status quo. In her dissent, Sotomayor acknowledged that the majority had turned a blind eye toward its own precedents and the abundance of scientific research, The New York Times reported. "This court has long recognized," she wrote, "that eyewitness identifications' unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial."

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Columnist demands witness protection program

Eye witnesses to violent crimes in Youngstown, Ohio see no evil because they are afraid — very afraid, according to Youngstown Vindicator columnist Bertram de Souza. Not only are the human predators brazen in their criminal activities, they have no qualms about threatening those who might cooperate with the authorities.

De Souza proposes that county prosecutors need a witness protection program similar to what the federal government operates. The major barrier to the development of such a system in Mahoning County is money. Local governments can’t afford the cost of not only providing witnesses with safe houses while they are waiting to testify, but relocating them when the trial is over.

Nonetheless, the situation demands action. The federal and state governments have a responsibility to help the county establish the program and then fund it.

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Sunday, February 12, 2012

Former TX prosecutor investigated for concealing exculpatory evidence

Former prosecutor is now a district judge

Former Williamson County (TX) District Attorney and current District Judge Ken Anderson is under investigation for the wrongful conviction of Michael Morton who spent 25 years in prison, according to the Austin American-Statesman. Morton was released last summer after DNA evidence cleared him of the murder of his wife. Recently, another suspect was arrested.

District Judge Sid Harle found probable cause to believe that Anderson violated state law in his prosecution of Morton. Morton's lawyers accused Anderson of violating two state laws: tampering with physical evidence, a felony that includes concealing "any record or document," and intentionally concealing a government record, a misdemeanor.

Harle emphasized his decision to convene a special review court as the best way to balance competing needs, giving Anderson a chance to clear his name and Morton the opportunity to seek a greater measure of justice.

According to the American-Statesman, if the Texas Supreme Court agrees with Harle the high court will name a state district judge to oversee the special court, which would have the power to issue subpoenas, take testimony and make a finding about whether Anderson violated state law. Designed as a fact-finding body, the court would not issue a punishment or criminal conviction.

"I personally cannot imagine, having been a former prosecutor, a worse stain or tarnish on a prosecutor's reputation, integrity or legacy," Harle told the American-Statesman.

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Saturday, February 11, 2012

U.S. Constitution no longer ‘go to’ nation building document

The U.S. Constitution is out of step with the rest of the world in failing to protect the right to travel, the presumption of innocence and entitlement to food, education and health care, according to Adam Liptak of the New York Times.  The U.S. Constitution is no longer the model for other burgeoning democracies around the world.

According to Liptak, other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.”

On September 6, 1789, Jefferson included the following passage in the letter to Madison, “Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right.”

In an interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the U.S. Supreme Court said, “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” She recommended, instead, the South African Constitution, the Canadian Charter or the European Convention on Human Rights, reported the Times.

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Friday, February 10, 2012

The Cautionary Instruction: No tweets, no blogs, no posts, oh my

The Pittsburgh Post-Gazette/Ipso Facto
February 10, 2012

This week the Pittsburgh Post-Gazette suggested that readers take action to protect their rights to real-time updates from Pennsylvania’s courtrooms.

The Pennsylvania Supreme Court’s Criminal Procedure Rules Committee has proposed prohibiting the use of electronic communication devices in courtrooms. Specifically, the proposed rule would prohibit “transmission by cellular phone, personal communications device, computer, or any other electronic device that has communications capabilities or internet connectivity.”

Pennsylvania has trailed far behind other states in terms of making courtrooms accessible to a wider audience. Although, the Supreme Court let cameras in for some of their arguments, Pennsylvania remains one of only nine states with an outright ban on recording criminal proceedings.

Chief Justice Ronald D. Castille has made it clear that the commonwealth does not intend to make a dramatic shift in terms of opening Pennsylvania’s courtrooms. The Chief Justice recently acknowledged that opening the Supreme Court to cameras would, in turn, raise the question of whether trial courts should also be opened.

While the Supreme Court has the power to change the rules that bar recording, broadcasting and photography, Castille told the Allentown Moring Call the court has little interest in taking that step. "It's probably not going to be in the near future," he said.

The federal government bans cameras in the courtroom. Rule 53 of the Federal Rules of Criminal Procedure bars the taking of photographs in the courtroom or the broadcasting of criminal proceedings. The national policy-making body for the federal courts, the Judicial Conference of the United States, provides that courtroom proceedings may not be broadcast, televised, recorded, or photographed for the purpose of public dissemination.

Judge Mark Bennet of the United States District Court for the Northern District of Iowa recently permitted real-time electronic communication from his courtroom during a trial. He told the ABA Journal, "I thought the public's right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant. . . . I allowed it because of my belief that we are the most mysterious branch of federal government and we need to find ways to be more transparent."

In New York, where cameras are also barred from the courtroom, a state court judge recently allowed a local newspaper to post live Twitter updates from inside the courtroom during a murder trial. Court administrator David Bookstaver noted that judges are often more distracted by reporters “coming and going” as they leave the courtroom to make phone calls, permitting the use of portable electronic devices keep reporters in their seats.

A ban on electronic communications is appropriate for jurors. In Pennsylvania, jury instructions have long admonished jurors to refrain from getting information from any outside sources including the internet.

Preventing the media from reporting on trials in real-time, essentially imposing a judicial “broadcast delay,” is an unnecessary suppression of public access.

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Thursday, February 9, 2012

Mississippi executes killer of two

The 3rd Execution of 2012

Edwin Hart Turner was executed in Mississippi for two 1995 killings after the U.S. Supreme Court rejected a last-minute stay.

Court records show that Turner and an accomplice who later received a life sentence were drinking beer and smoking marijuana in Carroll County in December 1995, when they decided to rob convenience stores. Two people were killed, reported Reuters.

After the murders, the two men shared $400 in stolen cash, ate cinnamon rolls and shrimp, and went to sleep at Turner's home.

After the 1995 killings, police investigators suspected Turner's involvement in the crimes after witnesses said one of the perpetrators wore a towel around his head. Turner regularly wore a towel on his head to hide a facial disfigurement that resulted from a suicide attempt.

After police discovered guns used in the crimes and a hockey mask, accomplice Paul M. Stewart confessed and received two consecutive life sentences. He testified against Turner in court.

Relatives of the two men killed in the robberies, Eddie Brooks and Everett Curry, witnessed the execution.

"This evening, after 16 years, we feel that justice, although delayed, has finally been served for the horrendous crime done to our family," Roy Curry, Everett Curry's brother, said in a statement on behalf of his family, according to Reuters.

"This awful person brutally murdered a beloved husband, father and brother. The hurt and pain are just as real to us now as on that day 16 years ago."

For his last meal, Turner requested a medium-rare porterhouse steak, fried shrimp with cocktail sauce, two slices of Texas toast, a side salad with Russian dressing, a pack of Twizzlers candy, and sweet tea, according to the Department of Corrections. Turner had no final words before his death, reported Reuters.

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Wednesday, February 8, 2012

How much is too much?

Has the FBI focused too much attention on the radical Muslim threat of domestic terrorism?

A study to be released on today found that 20 Muslim Americans were charged in violent plots or attacks in 2011, down from 26 in 2010 and a spike of 47 in 2009, reported the New York Times.

Charles Kurzman, the author of the report for the Triangle Center on Terrorism and Homeland Security called the threat from Muslim Americans “a minuscule threat to public safety.” Last year there were more than 14,000 murders in the United States, not a single one resulted from Islamic extremism, said Mr. Kurzman, a professor of sociology at the University of North Carolina.

Last year an ominous report, The Ticking Time Bomb, by the U.S. Senate Committee on Homeland Security and Governmental Affairs explore the threat of Muslim backed terrorism. The report document the transformation of the FBI of domestic law enforcement to counter-terrorism.

The 9/11 attacks led the FBI Director, Robert Mueller, to act to transform the FBI's institutional and operational architecture. He declared that the FBI's top priority would henceforth be preventing domestic terrorist attacks and that the FBI needed to become an intelligence-centric rather than purely law-enforcement-centric organization. The FBI is the lead federal investigative agency for counterterrorism criminal investigations and intelligence collection within the United States.

Kurzman’s research has documented that the U.S. has more to worry about in terms of domestic crime, than domestic terrorism. Yet, we have re-allocated an enormous amount of crime fighting resources to terrorism, case in point the FBI.

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Tuesday, February 7, 2012

Former Nixon Aide Talks Redemption

Watergate figure Charles W. Colson wrote in Sunday's Pittsburgh Post-Gazette that if society wants to make former felons productive members of society it starts with redemption Colson is founder of Prison Fellowship, the nation's largest outreach to prisoners, former prisoners and their families. A former special counsel to President Richard Nixon, he was convicted of an offense related to Watergate and served seven months in a federal prison.

In a heated presidential campaign, politicians have, like clockwork, started hitting each other over who is soft on crime. And here I thought we'd outgrown the Willie Horton era of playing political football with people's lives.

In Florida, a political action committee supporting Mitt Romney ran an ad criticizing Rick Santorum for voting to restore voting rights to ex-offenders who have finished their sentences. The issue popped up again during a heated Republican debate. I have never endorsed a candidate, but I feel compelled to speak up about this effort to demonize anyone who votes to return civil rights to criminals who have paid their debt to society.

What is the objection to allowing past offenders to vote? Voting does not put anyone in danger. Sound public policy would teach us that if we want to turn ex-offenders into responsible citizens, we must demand of them responsible behavior. And once they demonstrate responsible behavior, what possible justification is there, beyond scoring political points during an election, for stripping them of their civil rights for the rest of their lives?

Restoring voting rights is an important way society can welcome back those who strayed, sometimes seriously, but are now on the right path. It costs taxpayers nothing, but it means a great deal to an ex-offender.

I served time in a federal prison. And while I paid my debt to society in less than a year, it took me 30 years to have my voting rights restored. Maybe I'm not a good example, having been part of a national political scandal. But what about a young person, say, in his early 20s, who is convicted of three minor drug offenses? Once he serves his time, grows up and straightens out his life, should he be denied the right to vote again?

I know politics is a bare-knuckled game, but demonizing an entire class of Americans for electoral gain is wrong.

Consider recent events in Mississippi, where Attorney General Jim Hood, a Democrat, has made an effort to overturn the pardons issued by former Republican Gov. Haley Barbour. As Mr. Barbour wrote in The Washington Post, he recently pardoned 215 offenders, more than 90 percent of whom had been recommended for pardon by the state parole board.

The most controversial pardons were given to four murderers and one robber, all of whom had served an average of more than 20 years in prison, had acknowledged responsibility for their crimes and had proved themselves trustworthy.

The power to pardon criminals is inherent in the executive power and is explicit in the U.S. Constitution and in all 50 state constitutions. The sovereign power of clemency has existed from ancient times. It provides a last opportunity for injustice to be righted or for people who have been rehabilitated to be restored as free citizens. I realize that the pardon process can be very difficult for victims and their families, but that power exists not just to correct mistakes but also to forgive.

The political flaps over pardons and voting rights for ex-felons raise the larger issue of how long we will exact invisible punishments on offenders after they have paid their debt to the community. Many offenders are barred from employment in jobs that have nothing to do with their crime. Many more are barred from public housing, grants for tuition aid or even licenses for practicing a trade, such as being a barber.

If we want these ex-offenders to become contributing members of the community, we should not kick the bottom rungs off the ladder they have to climb. Those steps are already difficult.

Making a political controversy over traditional mercies extended to ex-offenders may reap a short-term political gain, but the politicians who do so also make it harder for offenders to get back on their feet. And that definitely does not serve the common good.

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Monday, February 6, 2012

NY Bar Proposes Redemption Legislation

The New York State Bar Association has proposed a way to remove, under certain conditions, some nonviolent felony convictions from a person’s public record, reported the New York Times. It would allow for the sealing of misdemeanor convictions and a single nonviolent felony conviction under certain circumstances and with the approval of a judge.

The question is, will the legislature move on such a proposal. Bar association members have little concern with the political consequences of being perceived as soft on crime or worse pro-crime. While there have been successful efforts with redemption legislation in some states, felony forgiveness is not often the focus of such efforts. Pennsylvania is looking at a redemption measure that would clean the slate for individuals convicted of a minor misdemeanor.

In New York, crimes against children and the elderly, sex crimes and public corruption would be excluded. The offender would have to wait five years after a misdemeanor conviction, or eight after a felony conviction, before the record could be sealed, and could not commit any crimes during the waiting period. Subsequent crimes would result in the sealed record’s becoming public again.

The idea is to help people who made a single mistake and have found themselves severely restricted in getting hired. Employers increasingly check criminal histories of applicants, and those with a criminal conviction are barred from many licensed trades in New York, including being a barber or a boxer, the association said in a report.

“This is really something that can benefit hundreds of thousands of people dating back many, many years,” Rick Collins co-chairman of the bar committee that wrote the proposal told the Times.

The state’s District Attorneys Association wrote a letter to the bar association expressing doubts about the new proposal and suggesting that current allowances for sealing conviction records — which focus largely on some drug charges and youthful offenses — may be sufficient, reported the Times.

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Sunday, February 5, 2012

Liberty rights are at risk

The Youngstown Vindicator
February 5, 2012

The presumption of innocence is one of the most overworked phrases in the criminal justice system. For all its fame and usage the presumption of innocence is not mentioned anywhere in the U.S Constitution.

Scrupulous prosecutors are careful to affix “alleged” when talking about a suspect. Defense attorneys are eager to point out that their clients are innocent until proven guilty. NBC legal analyst Dan Abrams wrote in The Wall Street Journal, “Demanding that all of us presume every defendant innocent outside of a courtroom is to demand that we stop evaluating facts, thereby suffocating independent thought and opinion.”

The presumption of innocence is more a rule of evidence than a rule of law. A jury, or judge, must presume an accused person innocent until proven guilty beyond a reasonable doubt. No one is entitled to the presumption of innocence before trial begins.

Fundamental rights

Although the presumption of innocence is an issue for trial, there are a growing number of situations that appear to encroach on fundamental liberty rights before an accused is adjudicated guilty.

For instance, in the state of Washington, lawmakers are considering collecting DNA from individuals after arrest, rather than after conviction. Opponents say it is unconstitutional and supporters say the measure would prevent violent crime.

The law would require law enforcement to collect DNA from those arrested for felonies and some misdemeanors, much in the same way that every suspect is fingerprinted at the time of arrest. The DNA would then be entered into a state database.

“I don’t think that any person should have their DNA taken before they are convicted,” State Representative Sherry Appleton told The Olympian. “In this country, you are innocent until proven guilty; it’s not the other way.”

In New Jersey, Gov. Chris Christie has proposed a bail reform measure. He proposes giving judges the discretion to deny bail based on the defendant’s history and potential for further violent behavior even though the defendant has not yet been convicted. In most states, a defendant can be denied bail only if facing a capital offense. Bail is to insure a defendant’s appearance for future court proceeding, it is not, nor should it be, punitive in nature.

Opponents argue that imprisoning individuals while awaiting trial, which could easily be months or years in the future, is an egregious civil rights violation and establishes a precedent that could be used to punish or coerce someone accused of a crime, according to the Times of Trenton.

South Dakota Sen. Mark Johnston is proposing a bill that would eliminate the statute of limitations for rape cases. He argues that rape is one of the vilest things a human being can do to another person and there should be no limit for prosecuting the crime, reported the Rapid City Journal.

Under Sen. Johnston’s proposal a defendant could face criminal prosecution based on allegations of rape that occurred 50, 60 even 70 years ago. The statute of limitation has been around since antiquity. As time passes memory fades, witnesses die and evidence disappears. The statute of limitations protects individuals from facing charges under those hopeless circumstances.

Finally, a fundamental principle of criminal law has long been that the government must prove that a defendant had the criminal intent to commit a crime.

Federal laws

This legal protection is now being eroded as Congress continues to churn out legislation in dramatic numbers. In the last quarter century, there has been onslaught of federal laws enacted that weaken the government’s responsibility to prove criminal intent. The increasing number of crimes and the absence of having to prove the willful nature of conduct is alarming.

Andrew Weissmann, a former federal prosecutor told The Wall Street Journal, requiring the government to prove a willful violation is “a big protection for all of us.”

No one would advocate for making it easier for a batterer, rapist or killer to get away with a grievous crime. However, lawmakers should not make it increasingly more difficult for an innocent person to protect his or her liberty interests and the right to mount a vigorous defense.

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Saturday, February 4, 2012

Budget Shortfalls Drive Prison Reform

Prisons are shrinking. The principle reason for the decline is the reduction in state revenues caused by the recession, according to a report by The Sentencing Project, The State of Sentencing in 2011. The statistics are impressive. Thirteen states closed prisons during the last year.

At least 40 states made cuts to correctional expenditures between 2009 and 2010 by reducing labor costs, eliminating prison programs and making food-service and medical care changes. 

Prison population declined in 25 states in 2010. A number of states have worked to reduce prison population to manage costs. Overall, state prison populations declined in admissions by more than 27,700 persons or 0.8 percent in recent years.

During 2011, state legislatures in at least 29 states adopted 55 criminal justice policies that may contribute to continued population reductions and address the collateral consequences associated with felony convictions, according to The Sentencing Project report.

Here is a summary from the report:

Key Criminal Justice Policy Reforms and Legislation Passed in 2011

Alabama-- Limited Incarceration for Probation Violators

Arkansas-- Revised Drug Statutes; Reformed Sentencing Practices to Reduce Recidivism; and Enacted Expungement Provision

California --Authorized County Jail Detention for Certain State Prisoners

Colorado--codified Sentencing Standards; Established Presumption of Parole Standard; and

Authorized Early Termination of Community Corrections Sentences

Connecticut--Expanded Risk Reduction Credits; Reduced Penalty for Certain Marijuana Offenses; Enacted Medical Response to Overdose Protection; and Restricted Incarceration of Certain Juveniles

Delaware--Restructured Drug Code; Authorized Use of Medical Marijuana; Opted out of Federal

Food Stamp Ban for Persons with Felony Drug Convictions; and Established

Expungement Policy for Specified Juvenile Offenses

Florida--Expanded Eligibility for Drug Court Participation; Eliminated Incarceration as a Sentencing Option for Certain Youth

Georgia-- Permitted Sentencing Modification for Youth with Certain Felony Offenses

Idaho-- Amended Alternative to Incarceration Options; and Authorized Courts to Expunge Certain Convictions

Illinois--Repealed Death Penalty; Codified Process of Prioritizing Alternatives to Incarceration into Statute

Indiana-- Authorized Expungement of Certain Arrests and Low-level Offenses

Kentucky-- Revised Penalties for Certain Drug Offenses; Established Alternative Sentencing Options for Certain Offenses

Louisiana --Authorized Early Release for Elderly Prisoners; Enabled Sentence Reductions through Safety Valve; and Modified Parole Policies

Maryland --Modified Parole Process for Persons Sentenced to Life in Prison; Repealed Certain Parole Revocation Provisions; and Established Pilot Program to Reduce Parole Revocations

Montana-- Expanded Medical Parole Eligibility

Nebraska-- Authorized Sentence Reductions for Certain Prisoners

Nevada-- Repealed Juvenile Life without Parole for Non-Homicide Offenses

North Carolina --Limited Use of Prison as a Sentencing Option for Certain Probationers; and Established Certificate for Restoration of Civil Rights

North Dakota--Authorized Sentence Modification for Certain Prisoners

Ohio--Established Certificates of Achievement and Employability

Oklahoma-- Streamlined Parole Process

Oregon-- Expanded Expungement Policy for Persons Convicted of Certain Offenses; Restricted

Mandatory Minimums for Certain Juveniles

Rhode Island-- Authorized Discretion for Certain Sentencing Options; Extended Medical Parole Policy to Severely Ill

South Dakota-- Established Partial Early Discharge from Parole

Texas --Created New Standard to Reduce Probation Revocations; Entitled Probationers to Exit

Community Supervision Early; Clarified Election Code for Persons; Limited Misdemeanor

Citations in School; and Expanded Determinate Probation

Utah-- Restored Voting Rights for Persons with Certain Prior Convictions

Vermont-- Allowed Alternative Sentencing Options for Certain Prisoners

Washington-- Established Process to Eliminate Interest for Criminal Justice Debt

West Virginia--Increased Sentencing Reduction Terms for Program Participation

Complied for The Sentencing Project, The State of Sentencing 2011

Friday, February 3, 2012

The Cautionary Instruction: PA Supreme Court to review controversial reversal of sex assault conviction

The Pittsburgh Post-Gazette/Ipso Facto
February 3, 2012

Tales of sexual violence have been plastered across front pages around the world. Last year, it was Dominique Strauss-Kahn the French politician cleared of an accusation of sexual assault. Now it’s the Penn State sex scandal and cover-up. A National Intimate Partner and Sexual Violence Survey found that 1 in 3 women and 4 in 1 men have experienced some form of sexual violence in their lifetime.

With this politically charged backdrop, the Pennsylvania Supreme Court has agreed to review a controversial Superior Court ruling overturning the convictions of three men accused of sexually assaulting a female student at West Chester University.

In 2009, the three men had come to visit a friend at West Chester and ended up staying the night in the dorm room of the victim. The victim said the men restrained her and "took turns" vaginally and orally raping her.

The attack began at about 4:30 a.m. and continued for over an hour. "I didn't know them, and I didn't ever want to have sex with them," the victim said during the preliminary hearing. "It was forced. I didn't have any option."

All three men were found guilty of sexual assault, indecent assault and false imprisonment. They were all acquitted on more serious charges of rape, involuntary deviate sexual intercourse and criminal conspiracy. Each received a sentence of two to four years in a state correctional facility and will be required to register as sex offenders when they are released.

On appeal, a three-judge panel of the Superior Court issued an unpublished memorandum opinion. An unpublished memorandum decision cannot be relied upon or cited by a Court or a party in any other proceeding. After reviewing the court record, the Superior Court found it was "manifestly unreasonable" to assume that the alleged female victim had not given her consent to the men's sexual advances. The court found the victim had neither protested sufficiently nor suffered serious enough injuries.

Former Chester County District Attorney Joseph W. Carroll called the decision "the worst legal reasoning I have ever seen in an appellate court opinion."

Len Sosnov, a Widener University law professor, told the Philadelphia Inquirer that the panel's ruling was "extremely rare." "Courts are generally extremely reluctant to disturb a verdict," he said, explaining that judging credibility is considered the domain of a jury.

The law in Pennsylvania permits appellate courts to overturn cases where a jury's decision appears "shockingly like an innocent person has been convicted," Sosnov told the Inquirer. If the Supreme Court agrees with the Superior Court decision, the three men will be entitled to a new trial.

A careful and deliberate review of this case is paramount. The Strauss-Kahn debacle; the media frenzy surrounding Penn State University; and now challenges to the very statistics that portray the pervasiveness of sexual violence demand it.

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