Saturday, June 30, 2012

Texas man convicted after failed 'stand-your-ground' defense

Raul Rodriguez a retired Texas firefighter was convicted of murder after a failed "stand-your-ground" legal defense.  He fatally shot a a 36-year-old unarmed neighbor following a dispute about the noise level at a birthday party, reported Reuters.

Prior to the shooting in Huffman, a rural Texas community northeast of Houston, Rodriguez videotaped himself calling police and telling a dispatcher that his life was in danger and that "I'm standing my ground here."

After a struggle in which it appeared that somebody at the party was grabbing for Rodriguez' camera, he shot and killed a female neighbor and wounded two other men.

Stand-your-ground gun laws exist in at least 20 U.S. states. Prior to 2007, Texas law allowed persons to defend themselves with deadly force in their homes, vehicles and workplaces if they felt their lives were in danger. But the law required that a person first seek an alternative to deadly force to escape danger, like fleeing.

A 2007 law rescinded the duty to retreat, provided those who invoked it could demonstrate they did not provoke their aggressor and were not committing a crime at the time of the shooting. That law and similar ones in other states have become known as stand-your-ground laws.

Rodriguez was sentenced to 40 years in prison.  He will be eligible for parole in 20 years.

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Friday, June 29, 2012

The Cautionary Instruction: PA Supreme Court authorizes secret grand juries

The Pittsburgh Post-Gazette/Ipso Facto
June 29, 2012

The Pennsylvania Supreme Court has adopted a new set of rules authorizing prosecutors to use grand juries to bring indictments in cases that may involve witness intimidation.

For nearly 25 years, Pennsylvania has allowed for investigative grand juries, which recommend whether a prosecutor should file charges. The rule changes will enable grand juries to issue indictments sending a criminal case to trial without a preliminary hearing.

The grand jury indictments can be used only in cases where prosecutors have requested permission from the court to empanel the grand jury. The petition requesting a grand jury must include an affidavit establishing, by probable cause, that “witness intimidation has occurred, is occurring or is likely to occur.”

Can circumstantial evidence be used to show witness intimidation? It is not yet clear what would constitute probable cause that witness intimidation “is likely to occur.”

Would the fact that no witnesses would come forward or that witnesses say they are frightened to conduct interviews with law enforcement be enough to establish probable cause of witness intimidation?

In some areas of the state, particularly urban areas, there is a culture of not cooperating with the police. Can a grand jury be helpful where “no snitching” is a “badge of honor” as well as a symbol of intimidation?

Under the new rules, the grand jury will, in specific cases, replace the preliminary hearing. Traditionally, a magisterial district judge at a preliminary hearing decides whether the prosecution has presented enough evidence to send a case to trial.

Under the new rules a grand jury will perform a similar review of the evidence and testimony, and issues an indictment. The witnesses will testify in secret before the grand jury instead of in public, although the witnesses will still have to testify in open court when the case goes to trial.

The Supreme Court made the rule changes in response to pervasive witness intimidation in the Philadelphia court system.

Intimidation can include physical violence or property damage, explicit threats of physical violence or property damage, economic threats, and indirect and implicit threats, such as anonymous phone calls, Internet postings, publicly announcing the fact of a witness' cooperation with law enforcement, or repeatedly driving past the residence of the witness or another location where the witness is present, according to the Pennsylvania bench book on witness intimidation.

The cost of empanelling a grand jury may limit its use to larger jurisdictions. The costs of assigning court and prosecutorial staff to grand juries, having judges on call and paying juror fees creates a financial burden for small counties that doesn’t otherwise exist with magisterial district judges presiding over preliminary hearings.

Although witness intimidation is not exclusive to large jurisdictions, the resources to empanel a secret grand jury may be out of reach for most counties.

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Thursday, June 28, 2012

Milwaukee's declining crime rate under review

Milwaukee's police department has misreported more than 5,300 violent assaults since 2006.  An internal department audit shows that 20% of aggravated assaults were underreported as lesser offenses that didn't get counted in the city's violent crime rate during that time.

The findings are consistent with a Milwaukee Journal Sentinel investigation last month of a more-limited pool of cases that identified in excess of 500 misreported serious assaults over a three-year period and another 800 cases that fit the same pattern.

Reported violent crime rates are more and more coming under scrutiny.  As homicide rates creep up in some cities--and medical trauma units continue to improve treatment for gun shot wounds--some practitioners are concerned that violent crime rates are being manipulated.

The department's review suggests the problem is much deeper than had been reported and has existed for a longer period, including before Police Chief Edward Flynn's tenure began in 2008.

Flynn said that despite thousands of crime coding errors, their review showed violent crime is still down by double digits - a 25% decrease since 2007, reported the Journal Sentinel.

According to the Journal Sentinel, the under-coding error rate was 23% in the two years before Flynn came to Milwaukee, compared with 19% since his arrival in 2008. When the FBI reviews crime data reported by states, the goal is to find less than a 2% error rate for all crimes, said Daniel Bibel, former president of the Association of State Uniform Crime Reporting Programs. An under-reporting error rate of 20% for aggravated assaults is 10 times higher than the accepted standard.

Journal Sentinel review found that Milwaukee police record clerks have routinely changed computer codes by hand in a way that removes serious assaults from the city's violent crime rate. Department officials acknowledged this was happening, blaming it on training issues.

The sample used in the periodic FBI audits typically covers hundreds of reports. The Journal Sentinel's investigation compared crime data to some 60,000 cases, which amounted to more than one-fifth of the 280,000 reported crimes in the period covered. Only the cases sent to prosecutors could be reviewed based on available data.

To read more:

Wednesday, June 27, 2012

Mangino on WFMJ-TV, talks about juvenile life without parole

Click here to watch my interview with WFMJ-TV

Michelle Nicks

NEW CASTLE, PA - In a landmark ruling, the United States Supreme Court has banned mandatory life sentences for children convicted of violent crimes.

On Monday, the United States Supreme Court ruled that a mandatory sentence of life in prison without the possibility of parole is unconstitutional when it comes to offenders who committed crimes as children.

Former Lawrence County District Attorney Matthew Mangino tells 21 News, "Both the majority and dissenting opinion agreed that there's a difference in brain development on young people that impacts their decision making."

The Supreme Court's decision makes it clear they do not want to lock the prison door and throw away the key for all children convicted of violent crimes, but they are leaving the door open for the strictest punishment of life in prison in some cases.

"The court has just left open the possibility that there are some juveniles that are not fit to be among other citizens, and they've left that open for local trial judges to decide," Mangino says.

Legal experts estimate that there are well over 2,200 offenders locked up for life with no chance for parole in connection with crimes they committed as children and that includes two cases in Ohio, and a whopping 480 cases in Pennsylvania.

That's because in Pennsylvania, judges by law have to impose a mandatory life sentence to anyone regardless of age convicted of first degree murder.

But this latest ruling now gives Pennsylvania judge's discretion to weigh other factors, rather than sentencing a child who commits a violent crime to a punishment as severe as an adult.

Mangino says the ruling means that every state like Pennsylvania that has mandatory life sentences for juveniles is going to have to change their laws, "So the legislature will have to take up this issue and mold a different type of sentence or sentencing structure for first degree murder for juveniles."

Then there's the issue of how to deal with 480 people in Pennsylvania who are already serving mandatory life sentences. The state will likely have to look to the Supreme Court to try to determine whether or not the ruling is going to be retroactive, and each case re-examined.

However, several high-profile cases of child killers in the Mahoning and Shenango Valleys will not be affected by the Supreme Court's ruling, that's because Jordan Brown who was just 11-years-old when he was charged with killing his father's pregnant fiancé was tried as a juvenile and will be released by age 21.

And in Youngstown, child killers 16-year-old Deandre McCrary and now 18-year-old Rayshawn Royal, sentenced just last week, will be eligible for parole after serving 28 years in prison.

New Pew Study Finds 36 Percent Increase in Prison Time Served

Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990, according to a recent report released by the Pew Center on the States' Public Safety Performance Project. The study found that for offenders released from their original sentence in 2009 alone, the additional time behind bars cost states $23,300 per offender, or a total of over $10 billion, more than half of which was for nonviolent offenders.

The report, Time Served: The High Cost, Low Return of Longer Prison Terms, also found that time served for drug offenses and violent offenses grew at nearly the same pace from 1990 to 2009. Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent.

Violent and career criminals belong behind bars, and for a long time," said Adam Gelb, director of the Public Safety Performance Project. "But building more prisons to house lower-risk nonviolent inmates for longer sentences simply is not the best way to reduce crime."

Though almost all states increased length of stay over the last two decades, the overall change varied widely between states. Among 35 reporting states representing nearly 90 percent of 2009 prison releases, time served rose most rapidly in Florida, where terms grew by 166 percent and cost an extra $1.4 billion in 2009. Prison terms increased in Virginia by 91 percent, North Carolina (86 percent), Oklahoma (83 percent), Michigan (79 percent), and Georgia (75 percent). Eight states reduced their overall time served, including Illinois (25 percent) and South Dakota (24 percent).

Among prisoners released in 2009 from the reporting states, Michigan had the longest overall average time served, at 4.3 years, followed by Pennsylvania (3.8 years). South Dakota had the shortest average time served at 1.3 years, followed by Tennessee (1.9 years). The national average time served was 2.9 years. Download the report and state fact sheets.

A companion analysis Pew conducted in partnership with external researchers identified the public safety impact of longer prison terms, using data about nonviolent offenders released in 2004 from Florida, Maryland, and Michigan.

The study revealed that many of those nonviolent offenders in each state could have served prison terms between three months and two years shorter with little or no public safety consequences: 14 percent of all offenders released in Florida, 18 percent in Maryland, and 24 percent in Michigan.

The report is based on National Corrections Reporting Program data from 35 states that was collected and verified by the U.S. Census Bureau and the Bureau of Justice Statistics. The reporting states covered 89 percent of the inmates released in 2009, the most recent year for which figures are available. States not included in the study had not reported sufficient data over the 1990-2009 study period.

Tuesday, June 26, 2012

North Carolina Justice Reinvestment Unfunded

Department of Public Safety says it needs 249 new positions

Last year North Carolina's governor and legislators from both parties came together for the Justice Reinvestment Act, the first sweeping revision of sentencing laws in the state in nearly two decades.

The theory behind the JRI was that more intensive supervision of offenders who had been released into the community would prevent them from returning to prison. Eventually, that approach was supposed to save the state the cost of building more prisons, and make everyone safer, according to The News and Observer.

But for all the fanfare about the cutting-edge crime-fighting plan, lawmakers left out one key ingredient: money. No funding has been set aside in either the initial House or Senate versions of the budget to pay for probation officers to supervise the newly released prisoners.

According to The News and Observer, improving probation officers’ caseloads was one of the reforms that followed the 2008 slaying of UNC-Chapel Hill student by two men who were on probation but poorly monitored. Yet improvement since has been slow, and the few gains in easing caseloads could suffer a serious setback if money isn’t found.

An estimated 15,000 offenders are expected to become the responsibility of state probation officers by next year. The state Department of Public Safety says it needs 249 new positions to handle that job, at a cost of about $13 million.

The Justice Reinvestment Act recommends each probation officer handle no more than 60 offenders. Currently, the average is 80 offenders for each officer. The statewide average caseload in 2008 was 68.

Probation officers are handling about 14 percent of the convicted felons released from prison. Under the new law, which took effect Dec. 1, they are responsible for all felons for at least nine months.

Without more probation officers, caseloads could soar.

The state Department of Public Safety says it made it clear to the Legislature last year that a substantial increase in resources for community supervision would be required. Its officials are working closely with legislative leaders in hopes of finding the money, a spokeswoman says.

“They’re going to need some more,” Rep. LeoDaughtry, chairman of the justice and public appropriations committee, said. “We’re trying to find a way to get them the money to make it work. … If I had the money I would give it to them.”

To read more here:

Monday, June 25, 2012

Supreme Court strikes down juvenile life without parole

The Supreme Court struck down as cruel and unusual punishment the laws in about 28 states that mandated a life term for murderers under age 18, reported the Washington Post. Pennsylvania has about 480 offenders serving life for offenses committed as juveniles, more than any other state.

The justices ruled in the cases of two 14-year-olds who were given life terms for their role in a homicide, but their decision goes further. It applies to all those under 18. It does not automatically free any prisoner, and it does not forbid life terms for young murderers.

The court’s opinion does not say whether its ruling applies only to future sentences, or whether it could give a new hearing to the more than 2,000 prisoners who are serving life terms for earlier murders.

According to the Post, Justice Elena Kagan referred to state laws that “mandated each juvenile (convicted of murder) die in prison even if the judge or jury would have thought that his youth and…the nature of his crime made a lesser sentence (for example, life with the possibility of parole) more appropriate.”

“We therefore hold that mandatory life without parole for those under age of 18 at the time of their crime violates the 8th Amendment’s prohibition on cruel and unusual punishments,” she said. Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor agreed, reported the Post.

Chief Justice John G. Roberts Jr. dissented. “Put simply, if a 17-year old is convicted of deliberately murdering an innocent victim, it is not unusual for the murderer to receive a mandatory sentence of life without parole.” Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined in dissent.

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Pennsylvania seeks to do away with SOL for child sex crimes

For more than six years Pennsylvania legislators had been pushing for a law that would give victims of childhood sexual abuse more time to file civil suits or criminal complaints against their alleged abusers.

Last week with the national spotlight on former Pennsylvania State University assistant coach Jerry Sandusky's child-abuse case the stalled legislation moved forward with other state initiatives to protect children.

House Judiciary Chairman, Ron Marsico consolidated the bills and put it to a vote. It passed unanimously, according to the Philadelphia Inquirer.

He said he was yielding to pressure from colleagues and would have preferred to wait until a task force he had formed on child-abuse legislation in the wake of the Sandusky scandal issued its final recommendations this fall. "However, a number of legislators have been insisting on our committee to act now, before the task force has completed its job," Marsico told the Inquirer.

The amended bill would do away with the statute of limitations on criminal prosecutions in child-sexual-assault cases. It also would extend the statute of limitations in civil suits until the accuser reaches age 50.

Under current law, victims have until age 50 to bring criminal charges and until age 30 to sue alleged abusers.  The current law took effect on January 28, 2007. That was a significant change within only the last ten years. Prior to 2002, the statute ran for only five years after the victims 18th birthday. In 2002, the statute of limitation was extended to 12 years.

The measure's fate remains in question, however, since it must still be approved by the Rules Committee before it can get to the full House. A spokesman for that committee's chairman, Majority Leader Mike Turzai, told the Inquirer that Turzai would review the bill.

To read more:

Sunday, June 24, 2012

Supreme Court may issue ruling on JLWOP this week

U.S. Supreme Court watchers are awaiting a decision this week on the controversial issue of mandatory sentencing of juveniles to life without parole.  Pennsylvania has mandatory life without parole for first and second degree murder.  A juvenile convicted of murder as an adult has no options.

The court must decide whether it is cruel and unusual punishment to put minors in prison for the rest of their lives without any possibility of release, even if they killed someone or were involved in a murder, without considering their age or circumstances.

The court’s ruling will be on two separate but related cases, Jackson v. Hobbs and Miller v. Alabama, involving two 14-year-old boys sentenced to life without parole under mandatory sentencing laws in their states, Alabama and Arkansas.

The Supreme Court has been chipping away at the most harsh sentences imposed on juveniles. On two previous occasions, the Supreme Court has affirmed that under the Eighth Amendment, juveniles could not be given death sentences or life sentences without parole for crimes other than murder because to do so would be excessive. Now, it must decide whether it is excessive for states to do so even in the case of murder or manslaughter.

According to the Juvenile Justice Information Exchange, in the last 40 years, about 7,000 children have been arrested for murder or manslaughter.  The United States leads the world in incarcerating juveniles for life without the possibility of parole. And Pennsylvania leads all states, by far, in the practice reported the Philadelphia Inquirer.  Pennsylvania has at least 450 inmates convicted of homicide committed when they were juveniles.

Saturday, June 23, 2012

Arkansas Supreme Court Strikes Down Death Penalty

The Arkansas Supreme Court struck down the state’s death penalty law on Friday, faulting a provision that permitted the Corrections Department to select the fatal drugs used in an execution, reported the New York Times.

The court ruled 5 to 2 that the Legislature must set the quantity and type of drugs in a lethal injection. The 2009 law left those decisions to the director of the Corrections Department. The court sided with 10 death row inmates who challenged the law’s constitutionality.

Aaron Sadler, a spokesman for Attorney General Dustin McDaniel of Arkansas, said the state was forming a plan to address the court decision.

Arkansas Justice Jim Gunter wrote that the case came down to a matter of separation of powers. “The Legislature has abdicated its responsibility and passed to the executive branch,” he wrote in the majority opinion, arguing that the law left “unfettered discretion” to corrections officials, reported the Times.

Two justices argued in a dissent that federal bans on “cruel and unusual punishment” are sufficient to ensure a humane execution procedure. “Arkansas is left no method of carrying out the death penalty in cases where it has been lawfully imposed,” Justice Karen Baker wrote, reported the Times.

This decision comes in the wake of a shortage of sodium thiopental one of three drugs used in lethal injection in most states.  The three drug cocktail includes an anesthetic to numb the pain, a muscle relaxant to prevent movement and a drug that stops the heart.

A few states, including Ohio, have moved to a single drug protocol and have carried out a number of executions using the single drug.

To read more:

Florida executes serial killer

The 13th Execution of 2012

A Florida death row inmate, David Alan Gore,  was put to death on April 12, 2012, nearly three decades after the murder of a 17-year-old, whose failed escape attempt ended a string of rapes and slayings that shook the quiet coastal town of Vero Beach.

Gore was pronounced dead at 6:19 p.m. after receiving an injection at the Florida State Prison, according to The Associated Press.

Asked if he had a final statement, Gore said as he lay strapped to a gurney: "Yes, I do."

Addressing the family of his 17-year-old victim Lynn Elliott, Gore said, "I want to say to the Elliott family, I am sorry for the death of your daughter. I am not the man I was back then, 28 years ago. I am a Christian. Christ lives within me. I hope you all can find peace today."

Making no eye contact with the family, he added that he hoped the family could "find it in their hearts to forgive me" and concluded: "I don't fear death."

Family members of the victim watched as the drugs began flowing but made no immediate statement as they left after the execution was carried out, according to the AP.

Outside, seven people waited in a section cordoned off for the victims' supporters. They knew the execution was finished when they spotted vans carrying witnesses from the prison.

George Byer, uncle of victim Barbara Ann Byer, turned away and sighed.

"I don't know how I feel, really," George Byer told the AP. "There's never any closure. You can't explain how it affects your life."

In all, Gore killed four teenage girls and two women, authorities say. Elliott's murder was the only one for which he was sentenced to death.

Elliott's parents had said as the execution time approached that this was the day they have been waiting for — a date many thought should have come years ago, considering there was no doubt he committed the crimes and he had shown no remorse for the killings.

"For us it's been a nightmare, because I just turned 81. I was beginning to think that I might die before he went," Carl Elliott, the girl's father, told the AP.

On July 26, 1983, Gore and his cousin Fred Waterfield picked up Lynn Elliott and her 14-year-old friend hitchhiking to Wabasso Beach north of Vero Beach. They took them at gunpoint to Gore's parents' house. Waterfield left and Gore raped the girls, who were bound in separate rooms.

Elliott freed her legs and ran naked from the house, hands still tied behind her back. Gore, also naked, chased her, dragged her back toward the house as she kicked and screamed and then shot her twice in the head. Police were called after a boy witnessed the murder. Gore was caught and the other girl rescued, according to the AP.

After his arrest, Gore admitted to killing three other girls and two women and led authorities to the bodies of four of the victims. He was sentenced to life in prison for the other murders.

According to the AP, Gore was arrested in July 1981 after being found in the back seat of a woman's car. He was shirtless and had a cocktail in one hand and a gun in the other. He also had handcuffs, rope and a police scanner. Gore was sentenced to five years in prison, though he was paroled and served only about a year-and-a-half. He soon began killing again.

In May 1983, Gore and Waterfield picked up two 14-year-old hitchhikers, Barbara Ann Byer and Angelica LaVallee. The girls were raped, killed and dismembered. While Gore says Waterfield was his partner throughout the killing spree, this was the only case that earned Waterfield a murder conviction. He is serving back-to-back life sentences.

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Condemned man consumes 29,000 calories before execution

The 22nd Execution of 2012

Mississippi executed its sixth death row inmate this year by lethal injection at the state penitentiary in Parchman.

Gary Carl Simmons was executed on June 19, 2012 after being convicted in 1996 of the murder of Jeffrey Wolfe as well as the kidnapping and rape of Wolfe's female friend, according to UPI.

Simmons last meal including two Pizza Hut pizzas (one a double portion), almost 6 pounds of cheese, 80 ounces of ranch dressing, a family-sized bag of Doritos, two strawberry milkshakes, 40 ounces of Cherry Coke, a supersized McDonald's fries and two pints of strawberry ice cream. The meal was estimated to be 29,000 calories — what an average man eats in a two-week period.

 Simmons was offered the opportunity to make a final statement.  The best he could do was, "Let's get it on so these people can go home."

After the execution, Wolfe's stepmother, Linda Wolfe, told UPI that Simmons never apologized for the murder.

"Did he tell us, 'I am sorry. I wish I could take it back'? No, He didn't take nothing back. Like he said, 'Let's get it over with. Let's get done so these people can go home'. Well that is where we are going. We are going back to Houston, Texas, and our hearts are proud. And we are proud of y'all. And thank y'all for every prayer, every thought and everything you have done the last 16 years," Linda Wolfe said.

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Friday, June 22, 2012

The Cautionary Instruction: Psychotropic medication and crime rates

The Pittsburgh Post-Gazette/Ipso Facto
June 22, 2012

Since the 1990s, crime rates have fallen considerably in cities large and small, across all regions of the country and all socioeconomic status. There are many theories about why crime rates have decreased so dramatically and so pervasively. Theories include a decline in the demand for crack cocaine, incarceration, an aging population even abortion.

Another reason suggested for the decline in crime was the consistent growth in the size of police forces and the modernizing of policing strategies. Policing resources are now on the decline. Last week, The Cautionary Instruction took an initial look at how a sour economy may yet have a negative impact on crime rates.

Today, we examine how a cut back in mental health treatment could impact crime rates.
Medication has vastly improved the treatment of mental illness. In the last 20 years, 10 million more adults began using pharmacotherapy. During that same time period violent crime has steadily declined.

A study entitled, A Cure for Crime? Psycho-Pharmaceuticals and Crime Trends found an association between an increased use of psychiatric drugs and a decrease in violent crime. The largest impact is associated with new antidepressants and stimulants used to treat ADHD. The report suggested that about 12 percent of the recent decrease in crime is due to expanded pharmacotherpy.

The new drugs introduced in the 1980s and 1990s were a substantial improvement over the methods of treatment dominating the mental health field at the time.

The symptoms of mental illness can contribute to violent criminal behavior. The manifestations of mental illness include various forms of behavior that generate problems for offenders on the street, or while institutionalized. Those symptoms include delusions, hallucinations, apathy, aggression, impulse control, deficits in social functioning and inappropriate interaction with others.

Violence may result when the symptoms of mental illness create a perception of threats, paranoia and the weakening of self control.

During the last 20 years, if violent crime rates had remained consistent with the violent crime rate in 1992, an additional 170,000 Americans would have been murdered.

How can we determine if mental health medication has had an impact on crime rates? In The Great American Crime Decline, University of California at Berkeley Professor Frank Zimring compared the decline in crime in the United States with that of Canada. Crime in Canada fell nearly as precipitously as in the U.S. In Canada there was no corresponding increase in police personnel, no increase in prison population, and no evidence of a violence fueled crack epidemic.

The common theme in the U.S. and Canada was that both countries were among the world’s leaders in treating mental illness with new psychiatric medications. No one can convincingly explain with certitude the astounding decline in violent crime, but the use of psychotropic medication cannot be discounted.

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Thursday, June 21, 2012

Study: Va. DNA Testing Finds History of False Convictions

A new study from Virginia examining DNA estimates that as many as 15 percent of people found guilty in sexual assault cases between 1973 and 1987 were wrongfully convicted, reported the Associated Press.

 Researchers from the Urban Institute DNA testing project found that in 5 percent of homicide and sexual assault cases, testing on archived DNA ruled out the convicted person. The wrongful conviction rate previously had been estimated at 3 percent or less.

The study released this week is the first to say how many exonerations are likely from Virginia's stash of biological samples from some cases dating back nearly 40 years.

Although all of these tests were done on Virginia cases, a lead researcher said the results likely could be applied elsewhere, reported the Associated Press.

Wednesday, June 20, 2012

Governor Corbett Highlights Goals of Justice Reinvestment Initiative

Governor Tom Corbett highlighted new efforts to make Pennsylvania's criminal justice system more effective and efficient during a gathering of corrections, probation and parole workers at a conference in Hershey.

"I have spent most of my life as a prosecutor. I know we are never going to totally eliminate crime,'' Corbett said. "But working together we can deal with crime in a way that will redeem more offenders, appropriately incarcerates violent offenders and sexual predators, lowers recidivism, and keeps us all from being held prisoner to the growing costs of locking up the bad guys.''

About 400 representatives of the Pennsylvania Association on Probation, Parole and Corrections, as well as The Middle Atlantic States Correctional Association's Joint Conference and Training Institute, are participating in the two-day event.

Corbett told the group about the Justice Reinvestment Initiative, which he established earlier this year to evaluate ways to make the state's criminal justice system more effective and efficient.

Through JRI, a bipartisan working group, including attorneys, judges, lawmakers and others who work in the criminal justice system, last month offered a number of recommendations. When implemented, those ideas can redirect the money saved on corrections for investment in law enforcement, probation, parole and victims' services, Corbett explained.

"We need to be as smart as we are tough on crime,'' Corbett said. "If we confront the problems of drug abuse and mental health issues early, if we employ specialized treatment courts and programs, we can save both revenue and lives.''

Also participating in this morning's session of the conference was Secretary of Corrections John Wetzel, Michael Potteiger, chairman of the PA Board of Probation and Parole, and Linda Rosenberg, executive director of the Pennsylvania Commission on Crime and Delinquency.

Tuesday, June 19, 2012

Supreme Court: DNA analyst not needed for trial

The U.S. Supreme Court recently ruled that the expert who examined DNA evidence does not necessarily need to testify at trial.  In Williams v. Illinois, 10-8505, the court upheld the conviction of Sandy Williams even thought the expert who testified at his trial played no role in the tests that extracted genetic evidence from the victim’s sample, reported the Washington Post.

No one from the company that performed the analysis testified at trial and therefore was not subject to cross-examination concerning the the handling of the evidence or the actual analysis.

According to the Post, the court has previously ruled that defendants have the right to cross-examine the forensic analysts who prepare laboratory reports used at trial.

In this case, the state of Illinois said that the DNA expert who matched the two samples played the critical role — even though she did not actually extract the DNA samples and conduct the tests — and that she testified and was subjected to a thorough cross-examination.

The court split into three factions in this case. Four justices — Chief Justice John Roberts and Justices Samuel Alito, Stephen Breyer and Anthony Kennedy — joined in a strong opinion that would give prosecutors more leeway in using lab reports without having to put the analysts who prepared them on the witness stand, reported the Post.

Four others — Justices Ruth Bader Ginsburg, Elena Kagan, Antonin Scalia and Sonia Sotomayor — said the Constitution does not permit the use of the lab analysis that helped convict Williams.

To read more:

Monday, June 18, 2012

Elderly prison population soaring

         The American Civil Liberties Union issued a recent report on the incarceration of the elderly.  There are nearly 125,000 inmates aged 55 or older now behind bars. This represents an increase of over 1,300 percent since the early 1980s costing states and the federal government more then $16 billion annually.

        Here are excerpts from the report:

From 1980 to 2010, the United States prison population grew over 11 times faster than the general population. During this time, the general population increased by 36%, while the state and federal prison population increased by over 400%. The number of elderly people in our prisons is growing even faster. The graying prison population has become a national epidemic afflicting states around the country—from California to Missouri to Florida—further burdening already strained state budgets. According to the National Institute of Corrections, prisoners age 50 and older are considered “elderly” or “aging” due to unhealthy conditions prior to and during incarceration. This report uses that definition and finds that that there are 246,600 elderly prisoners behind bars across the country. To the extent possible, this report provides data for prisoners age 50 and older; in a few cases when data for this age group is not readily available, this report provides data on the next closest age range.

In 1981, there were 8,853 state and federal prisoners age 55 and older. Today, that number stands at 124,900, and experts project that by 2030 this number will be over 400,000, amounting to over one-third of prisoners in the United States. In other words, the elderly prison population is expected to increase by 4,400% over this fifty-year time span. This astronomical projection does not even include prisoners ages 50-54, for which data over
time is harder to access. 
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Sunday, June 17, 2012

California judges rally to stop funding cuts

Recently in California about 20 Superor Court judges chanted the old Cesar Chavez slogan, loosely translated to mean "Yes, we can," in a noontime rally where they joined defense, prosecution and civil lawyers, as well as courthouse employees, to voice opposition to state omposedthe court budget cuts, reported the Sacramento Bee.

Speaker after speaker envisioned legal doomsday if the cuts go through. They said divorces will not be filed, small claims matters will go unheard, battered spouses seeking restraining orders will not get them, and children in need of foster care services will be left at risk.

Already in Sacramento, court officials have sent layoff notices to 48 employees, mostly low-seniority workers in the interior reaches of the clerks' offices. Local officials have prepared to shut down small claims court four days a week, reported the Bee. New court filings are likely to be dumped in a drop box and stamped only when a clerk is available, posing a risk of delay in the processing of the legal documents.

"The crisis in court funding threatens our justice system to a degree that none of us has ever seen before in our lives, to such an extent that the very rule of law is imperiled," State Bar President Jon Streeter told the Bee.

Streeter said the crisis is "escalating by the hour." With a glance over his shoulder, Streeter announced, "We are looking at these doors being shut." It appears, he said, "We are abandoning our dedication to justice."

According to the Bee, the proposed court-funding reductions had adversaries sitting side by side at Wednesday's rally at the top of the steps overlooking the courthouse fountain on Ninth Street. The District Attorney and Public Defender shared space, as did the president of the Consumer Attorneys of California and the president of the California Defense Counsel, which takes up the cause of business and corporate interests in civil litigation.

To read more here:

Saturday, June 16, 2012

Pennsylvania House passes wiretap changes

The Pennsylvania House of Representatives recently passed a package of changes to the state wiretap law that would allow victims to record offenses against them and allow police to secretly respond to texts if they suspect the communications are crime-related.

With a wiretap law that has not been updated since 1998, state police have been outpaced by criminals who can slow an investigation simply by switching cell phones, Rep. Ron Marsico, chairman of the House Judiciary Committee, told the Pittsburgh Post-Gazette.

"Our statute is stuck in the days of Princess rotary phones," he said on the House floor. "It is time to move to the day of the iPhone."

The problem of disposable phone numbers would be addressed under the bill by allowing courts to authorize wiretaps for a person, rather than a particular phone number. Mr. Marsico also described situations where recordings that showed evidence of crimes could not be used in court because of the current wiretapping restrictions, reported the Post-Gazette.

The legislation has won a long list of supporters, according to Marisco's office, including the attorney general, the state police, the Pennsylvania Innocence Project, the state victim advocate, the Pennsylvania Coalition Against Rape and the state associations of police chiefs, district attorneys and school boards.

To read more:

Friday, June 15, 2012

The Cautionary Instruction: The economy’s impact on crime has yet to play out

The Pittsburgh Post-Gazette/Ipso Facto
June 15, 2012

Many experts predicted that a sour economy would usher in an increase in crime. Yet the recession did not result in out-of-work, law abiding citizens desperately resorting to crime to make ends meet. Crime continued to fall.

However, the economy’s impact on crime has not yet played itself out. State and local governments are still in decline -- government budgets have been adjusted with policing, corrections and the courts taking a hit.

The effect of the economic downturn on law enforcement agencies may be felt for years to come, or worse, permanently. The permanence of this change will be driven not just by the economy, but by the realization that it is no longer feasible for local government officials to allocate a significant portion of the general fund budgets for public safety.

More than 50 percent of police departments nationwide have reported personnel layoffs. Communities across the country are beginning to feel it. No more so than in New Jersey.

Police layoffs in Newark, which took effect December 1, 2010, seemed to have had an immediate effect on arrests. Between January and June of 2011, police recorded nearly 4,000 fewer arrests than they did during the same period in 2010. 

The Economic Policy Institute reported there is more to cost-cutting than meets the eye. Cuts to the police force of five high-crime cities in New Jersey, including Newark, actually cost 12.9 times more than the budgetary savings of eliminating the officers, when the cost of rising crime was factored into the equation. Public safety cuts are not only dangerous, they’re bad business.

The reality of fewer policing resources has caused police departments to re-evaluate priorities. Although, cash strapped departments have pledged that emergency response will not be diminished -- there will inevitably be a change in the way police departments handle non-emergencies. The response time, if there is a response, for crimes like burglary, theft and vandalism -- quality of life crimes -- will be impacted. 

That might not seem like a big deal, but New York City, the shining example of crime control, began their crusade against crime in the early 1990s by following James Q. Wilson’s Broken Windows theory. Wilson suggested vigorously cracking down on nuisance crimes and violent crime rates will drop. In 1990 there were 2,245 murders in NYC -- in 2011 there were 515.

The new economic reality may limit resource-driven crime control efforts like NYC’s, and that portends disaster. Professor James Alan Fox recently sounded the alarm. From July through December 2011 several crime categories showed an increase, including a 1.9 percent increase in murder.

Fox wrote in the Boston Globe, "Whatever the final data show, it would seem that the long-term downturn in crime has slowed, and may even have bottomed out … If we fail to invest sufficiently in crime prevention and crime control -- both personnel and programs, we may someday look back at 2011 and consider them the 'good old days.' "

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Thursday, June 14, 2012

Mississippi executes man for 2001 killings

The 21st execution of 2012

Mississippi executed Jan Michael Brawner for fatally shooting his 3-year-old daughter, his ex-wife and her parents. Brawner, 34, was pronounced dead at 6:18 p.m. on June 12, 2012 after receiving a chemical injection at the Mississippi State Penitentiary at Parchman.

Brawner had admitted to the killings and said he didn't deserve to live after shooting his daughter, Paige, his ex-wife, Barbara Craft, and her parents, Carl and Jane Craft, at their house on April 25, 2001, reported the Associated Press.

In his final statement, Brawner said he wished to apologize to the victims' family, adding he could not change what he had done. "Maybe this will bring you a little peace. Thank you," he said as he lay strapped to a gurney, reported the AP.

When the drugs were administered, he appeared to take a deep breath. His mouth opened wide for a moment and then his head tilted to the side.

Before the execution, Brawner appeared talkative and said he deserved to die for what he'd done, Corrections Commissioner Chris Epps told the AP.
Court records based on Brawner's testimony and statements to police, as reported by the AP, describe the killings and the series of events leading up to them like this:

 He shot his ex-wife's mother first, then shot his ex-wife. She had wounds to her hands from trying to protect herself.

He walked across the room to his former mother-in-law and "put her out of her misery." Then he shot his ex-wife again.

The child had blood splatter on her from the shootings and said, "Daddy, you hurt me."

He took his daughter to a bedroom and told her to watch television, but decided she could identify him as the killer. He shot her in the chin and head. He killed Carl Craft when he arrived from work.

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Idaho carries out fully open execution

The 20th execution of 2012

Media groups had argued that Idaho's practice of hiding this first half of lethal injection executions from view violated the First Amendment rights of the public.

A week ago, no one aside from the prison officials would have seen the state's lethal injection process in its entirety. But a federal judge ordered it open, siding with more than a dozen Idaho news groups, including The Associated Press, who sued in federal court for access.

Richard Leavitt's execution this week marked the first time that the public would have access to the execution procedure from beginning to end.

The six correctional officers, wearing surgical masks and stationed three to a side like pallbearers, lifted the inmate off the gurney and strapped him to the execution table inside the Idaho state prison.

Others attached intravenous lines to Leavitt's arms and electrodes to the convicted killer's chest and stomach to measure his breathing and heart rate.

Four media witnesses watched as the 53-year-old Leavitt was wheeled, strapped to a backboard on a gurney, into the death chamber. They watched as Leavitt was moved to the table and as three members of a medical team inserted IVs into his arms.

The inmate spoke with them, though witnesses could not hear the exchanges.

They used a blood pressure cuff to enlarge the veins in his elbows, starting with the right, then the left. They cleaned his arms repeatedly with alcohol wipes to prevent infection — in case the execution was called off at the last minute.

A member of the team prodded the inside of Leavitt's arm, feeling for veins. After a moment, he slipped in the needle, sliding the thin plastic catheter that would deliver the lethal chemicals. The process was repeated on the other side.

The team leader placed a hand over the inside of his own elbow, and bent his arm back and forth, to let the executioners watching from another room that Leavitt was ready for the fatal dose of pentobarbital.

Leavitt declined to make a final statement and did not ask to see a spiritual adviser before his execution. He was pronounced dead at 10:25 a.m.

Leavitt was convicted in 1985 for stabbing and mutilating 31-year-old Danette Elg. Prosecutors said Leavitt stabbed her repeatedly with exceptional force, and then cut out her sexual organs.

The U.S. Supreme Court rejected his last-minute request to stay the execution, which cleared the way for Idaho to put to death its second inmate in 17 years. In November, Paul Ezra Rhoades died by lethal injection for his role in the slaying of three people in eastern Idaho.

Leavitt had maintained his innocence, but former U.S. Attorney Tom Moss noted that several judges examined Leavitt's case during multiple appeals and none found a reason to justify overturning his death sentence.

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Wednesday, June 13, 2012

Fox: 'Crime could easily rebound'

The FBI recently released its preliminary tabulations of crime statistics for 2011, and the short-term trend seems rather encouraging. However, Professor James Alan Fox of Northeastern University wrote in the Boston Globe that the data are much more of a mixed bag in terms of what these trends really indicate.

It would appear from these estimates, from July through December 2011, that several crime categories showed an increase in the second half of the year, including a 1.9% uptick in murder.

The data shouldn't be used to overstate the significance of the trends for the second half of the year; they are volatile. The late-year increases may be more about low crime levels near the end of 2010 than anything about 2011. Further analysis and more complete data is needed.

Fox wrote, "Whatever the final data show, it would seem that the long-term downturn in crime has slowed, and may even have bottomed out. Crime can’t go down forever, of course. At this juncture, we need to focus on making sure that any increase that does occur is relatively modest."

Professor Fox appropriately points out that now is not the time to start cutting back on crime fighting resources. "With rates relatively low, this is not the time to diminish crime fighting efforts. If we naively presume that the crime problem has been solved (as opposed to just controlled for the time being), the crime rate could easily rebound. If we fail to invest sufficiently in crime prevention and crime control—both personnel and programs, we may someday look back at 2011 and consider them the 'good old days.'"

As state and local governments struggle with diminishing budgets and the resulting cuts to law enforcement, prisons, the courts and social services we may be on the cusp of a dramatic increase in crime, violence and victimization.

To read more:

Tuesday, June 12, 2012

Study: Castle Doctrine increases homicides

Laws do not deter crime

Two Professors from Texas A&M University, Mark Hoekstra and Cheng Cheng, studied whether the Castle Doctrine laws deter crime.

The answer, according to the Wall Street Journal, is no. In fact, the evidence suggests the laws have led to an increase in homicides.

From the study:

Results indicate that the prospect of facing additional self-defense does not deter crime. Specifically, we find no evidence of deterrence effects on burglary, robbery, or aggravated assault. Moreover, our estimates are sufficiently precise as to rule out meaningful deterrence effects.

In contrast, we find significant evidence that the laws increase homicides. Suggestive but inconclusive evidence indicates that castle doctrine laws increase the narrowly defined category of justifiable homicides by private citizens by 17 to 50 percent, which translates into as many as 50 additional justifiable homicides per year nationally due to castle doctrine. More significantly, we find the laws increase murder and manslaughter by a statistically significant 7 to 9 percent, which translates into an additional 500 to 700 homicides per year nationally across the states that adopted castle doctrine.

Thus, by lowering the expected costs associated with using lethal force, castle doctrine laws induce more of it. This increase in homicides could be due either to the increased use of lethal force in self-defense situations, or to the escalation of violence in otherwise non-lethal conflicts. We suspect that self-defense situations are unlikely to explain all of the increase, as we also find that murder alone is increased by a statistically significant 6 to 11 percent.

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Monday, June 11, 2012

Thirty states seek to expand mandatory reporting laws

Penn State sex abuse scandal behind rapid increase in laws

In the wake of the Penn State sex abuse scandal, about 105 bills on the reporting of suspected child abuse and neglect have been introduced in 2012 legislative sessions in 30 states and the District of Columbia. Legislation has since been enacted in 10 of those states, according to the National Conference of State Legislatures.

According to the Christian Science Monitor (CSM) Oregon, West Virginia, Virginia, and South Dakota are among states that expanded their list of professions that are mandatory reporters, while Indiana and Iowa are requiring schools to develop new policies and reporting procedures for responding to suspected child abuse.

Indiana, also in response to the Penn State sex abuse scandal, passed legislation that requires the state to work with child sexual abuse experts to develop education materials, response policies, and reporting procedures on child sexual abuse, reported CSM. A new Iowa law requires schools to implement policy for employees in contact with children to report suspected physical or sexual abuse.

Also as a direct result of the Penn State sex abuse scandal, Florida has passed what is now the toughest mandatory reporting legislation in the country: Failure to report suspected child abuse is a felony, and universities would be fined $1 million and stripped of state funding for two years if officials don't report child abuse. According to CSM, the law applies to everyone — from university coaching staff to elementary school teachers to students.

Forty-eight states require at least some professionals to immediately report knowledge or suspicion of child sexual abuse to some authority, according to the NCSL. The list of professionals varies by state and can include teachers, school nurses, doctors, social workers, police, day care workers, coaches and camp counselors, reported the CSM.

Eighteen states have laws that require mandatory reporting of suspected child abuse by all adults. Many of those states have no specific sanctions for those who fail to comply with such laws, while others have penalties but they are not enforced unless a case is particularly heinous or deadly.

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Sunday, June 10, 2012

Prisoners released in 2009 served 36% longer than prisoners in 1990

Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990, according to a report released by the Pew Center on the States' Public Safety Performance Project. The study found that for offenders released from their original sentence in 2009 alone, the additional time behind bars cost states $23,300 per offender, or a total of over $10 billion, more than half of which was for nonviolent offenders.

The report, Time Served: The High Cost, Low Return of Longer Prison Terms, also found that time served for drug offenses and violent offenses grew at nearly the same pace from 1990 to 2009. Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent.

"Violent and career criminals belong behind bars, and for a long time," said Adam Gelb, director of the Public Safety Performance Project. "But building more prisons to house lower-risk nonviolent inmates for longer sentences simply is not the best way to reduce crime."

Though almost all states increased length of stay over the last two decades, the overall change varied widely between states. Among 35 reporting states representing nearly 90 percent of 2009 prison releases, time served rose most rapidly in Florida, where terms grew by 166 percent and cost an extra $1.4 billion in 2009. Prison terms increased in Virginia by 91 percent, North Carolina (86 percent), Oklahoma (83 percent), Michigan (79 percent), and Georgia (75 percent). Eight states reduced their overall time served, including Illinois (25 percent) and South Dakota (24 percent).

Among prisoners released in 2009 from the reporting states, Michigan had the longest overall average time served, at 4.3 years, followed by Pennsylvania (3.8 years). South Dakota had the shortest average time served at 1.3 years, followed by Tennessee (1.9 years). The national average time served was 2.9 years. Download the report and state fact sheets.

The report is based on National Corrections Reporting Program data from 35 states that was collected and verified by the U.S. Census Bureau and the Bureau of Justice Statistics. The reporting states covered 89 percent of the inmates released in 2009, the most recent year for which figures are available. States not included in the study had not reported sufficient data over the 1990-2009 study period.

Saturday, June 9, 2012

NIJ: Drug courts reduce recidivism

A study funded by the National Institute of Justice (NIJ) found that alternatives to handling drug cases, such as specialized courts that usher more people into rehab, can sharply drop recidivism rates, scale back on overall crime and produce deep cost cuts in an overwhelmed criminal justice system, according to Youth Today.

The report comes as the nation is in somewhat of a split over how best to handle many criminal cases, including drug offenses.

As Massachusetts considers a crackdown on repeat violent offenders, the position by many lawmakers has been to ease drug penalties.

In Missouri, legislators passed a bill to create more parity in sentencing for powdered and crack cocaine offenses. In the push to cap violent and drug crime in the 1980s and 1990s, many states passed tough laws that skewed penalties for different types of cocaine, with the result being more minorities – and especially blacks − were locked up for longer periods of time, reported Youth Today.

Many states, and even Congress late last year, have revisited those laws, pulling back in hopes of reducing prison populations and the high costs of policing, the courts and incarceration.

According to Youth Today, the upside of drug courts include a decrease in drug relapse, a drop in reoffending and lower overall criminal justice costs as offenders were eased back into society, something that is expected to help steady state budgets that were so wrecked by the down economy.

Among other findings, the research released by the NIJ found:

• About 40 percent of drug court participants reported less criminal activity, compared with 53 percent of offenders who went through traditional courts.

• Fewer rearrests were reported for drug-court participants than offenders of similar crimes who were processed through criminal court. The difference was 52 percent to 62 percent.

To read more:

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Friday, June 8, 2012

The Cautionary Instruction: A tale of two rulings In Sandusky trial

The Pittsburgh Post-Gazette/Ipso Facto
June 8, 2012

Two rulings this week by the judge presiding over the trial of former Penn State assistant football coach Jerry Sandusky reveal a system amenable to openness but burdened with an antiquated view toward achieving accessibility.

The two rulings appear to be in conflict. Initially, Judge John M. Cleland ruled that the victims must use their names when testifying. The victims had asked the court to use pseudonyms to protect their identity.
Judge Cleland then revoked permission for journalists to tweet and email dispatches from inside the courtroom after the media sought clarification on the judge’s decorum order -- a set of ground rules for trial.

When the judge addressed the pseudonym request he wrote, “Courts are not customarily in the business of withholding information. Secrecy is thought to be inconsistent with the openness required to assure the public that the law is being administered fairly and applied faithfully." 

While Judge Cleland sought to provide openness on the one hand—he clamped down on a novel method of access provided through modern technological advances. Twitter opens Pennsylvania’s courtrooms in much the same way television opened courtrooms in Ohio, Florida and numerous other states.

Judge Cleland recognized this through his decorum order which initially permitted the use of electronic devices for courtroom-based communications. There were limitations. “The devices may not be used to take or transmit photographs in [the courtroom]; or to record or broadcast any verbatim account of the proceedings” in real time from the courtroom.

A number of media outlets, including The Associated Press and ESPN, filed a motion seeking clarification of the judge’s order.

The media’s motion argued that restricting the use of direct quotes was unconstitutional and the use of direct quotes should not be prohibited because doing so would, according to court documents, “risk diminishing the accuracy of reports on the trial.”

As a result the judge said he was "compelled to rescind" the portion of the order granting electronic-based communications because, based on the media’s motion, he finds his interpretation of the law “confusing to reporters, unworkable, and therefore, likely unenforceable.”

Juxtapose the electronic communication ruling with the witness identification ruling. Rejecting the use of pseudonyms for victims Judge Cleland wrote, "Arguably any victim of any crime would prefer not to appear in court, not to be subjected to cross-examination, not to have his or her credibility evaluated by a jury -- not to put his name and reputation at stake." Judge Cleland continued, "But we ask citizens to do that every day in courts across the nation." Yet, citizens interested in the Sandusky case will have to read about those witnesses in the next day’s newspaper.

Judge Cleland, with a couple strokes of a pen, made evidence in a high profile case both more open and less accessible -- at least by today’s modern means of access.

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Thursday, June 7, 2012

Cuomo: Possession of marijuana not a crime

New York Governor Andrew Cuomo and the speaker of the Assembly came out in support of a change in the law so that publicly possessing small quantities of pot would no longer be a misdemeanor, reported the New York Times. “This is primarily a young-person problem, about 60 percent,” said Gov. Cuomo. “And primarily, overwhelmingly, a problem for the black and brown community, 94 percent of the convictions.”

In New York City, Mayor Bloomberg and Police Commissioner Raymond Kelly, have overseen a vigorous marijuana enforcement effort. About 400,000 people have been arrested over the last 10 years for breaking New York State Penal Law 221.10, which makes it a misdemeanor to openly possess or burn less than an ounce of pot, reported the Times.

In a startling turnaround, both Mayor Bloomberg and Police Commissioner Kelly said that they supported the change in the law.

According to the Times, Cuomo also privately promised to fix a few lines in the laws governing marijuana possession, the changes he proposed this week. Currently, having a small quantity of pot is not a crime if it is not visible; it is merely a violation, like a traffic summons. However, if the pot is openly displayed, it is a misdemeanor. So, people ordered to turn out their pockets by a police officer are displaying marijuana, a misdemeanor.

Those misdemeanor charges, Mr. Cuomo said, were an “aggravated complication” of searches conducted in New York City. Last year, about 700,000 people were stopped, questioned, and in many cases, searched; most of those people were black and Latino.

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Wednesday, June 6, 2012

Kasich stays execution of mentally ill inmate

Ohio Gov. John Kasich granted a two-week stay of execution for a man convicted of shooting his wife and brother-in-law in a courthouse 20 years ago. The execution is rescheduled for June 20.

The Cleveland Plain Dealer reported that Abdul Awkal was scheduled to face execution by lethal injection at a prison in Lucasville today. He arrived at the prison Tuesday evening, however, the reprieve was granted before he could be served his last meal.

According to UPI, Awkal's lawyers argued their client is mentally ill and unaware of his punishment, and thus cannot be executed. In the motion filed to stay the execution, they said Awkal believes himself to be working with the CIA in the war on terror, and the agency is executing him because it is unhappy with him.

Prosecutors counter Awkal is a known liar, who has acknowledged his death sentence to mental health professionals in the past, proving he is aware of his punishment.

To read more:

Mississippi executes killer of four children

The 19th Execution of 2012

Henry Curtis Jackson Jr. was executed by lethal injection at the Mississippi State Penitentiary in Parchman.  He fatally stabbed two nieces and two nephews - aged 2 to 5 years - while he searched for money to steal from a safe kept in his mother's home.

During the attack on November 1, 1990, Regina Jackson, a sister of Jackson's, and two other nieces were also stabbed but survived. One of them, an infant at the time, was critically injured and remained paralyzed until her death in 2009, according to Reuters.

Regina Jackson-also the mother of two of his victims-said she and other family members including the mother of the other children killed had asked Mississippi's Republican Governor Phil Bryant on Monday to halt the execution.

"There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency," the governor told Reuters.

In Mississippi, the governor has the sole authority to grant clemency and can also commute death sentences to life in prison. Jackson was the fourth person executed this year in Mississippi.

He did not request a last meal and ate none of the standard dinner offered to him, corrections officials said. He also declined a sedative ahead of the execution, reported Reuters.

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Tuesday, June 5, 2012

Supreme Court Reins in Double Jeopardy Clause

In 2009, Alex Blueford sat before an Arkansas jury and listened as the jury foreperson told the judge that she and her fellow jurors were unanimous in finding that Blueford was not guilty of capital murder or first-degree murder. Yet, less than an hour later, a mistrial was declared and Blueford would once again face a jury on both charges.

The Pennsylvania Law Weekly
June 5, 2012
In 2009, Alex Blueford sat before an Arkansas jury and listened as the jury foreperson told the judge that she and her fellow jurors were unanimous in finding that Blueford was not guilty of capital murder or first-degree murder. Yet, less than an hour later, a mistrial was declared and Blueford would once again face a jury on both charges.

On Nov. 28, 2007, Blueford was babysitting his girlfriend's 20-month-old son while she took a relative to an appointment. Shortly after leaving, the toddler stopped breathing. Another adult in the home called for help. The child later died in the hospital. The cause of death — a traumatic closed head injury.

According to court documents, Blueford was charged with murder. The prosecutors pursuing Blueford called a pediatrician and the state medical examiner. Both compared the child's injuries to those from a serious car accident. Prosecutors contended the injuries were intentional.

At trial, Blueford took responsibility for the child's injuries, but suggested the injury was the result of a tragic accident. Blueford said he was startled when the toddler waved a lit cigarette near his face, causing him to accidentally hit him in the head and knock him to the floor.

The court's instructions to the jury required the panel to consider the offenses of capital murder, first-degree murder, manslaughter and negligent homicide. The state of Arkansas' jury instructions specifically direct jurors not to consider the lesser charges until they make a unanimous decision on the more serious charge.

There are two basic approaches to jury deliberations regarding lesser offenses. A majority of jurisdictions use an "acquittal-first" instruction, requiring juries to unanimously convict or acquit the defendant of an offense before considering less serious charges.

Twenty-three other jurisdictions, including Pennsylvania, allow courts to give an "unable to agree" instruction. In these jurisdictions, the jury will consider a less serious charge after making reasonable efforts to reach a verdict on a more serious charge and finding itself unable to agree (Daniels v. Washington, 130 S.Ct. 85, 2009, Petition for Writ of Certiorari).

After deliberating for several hours, the Blueford jurors notified the court that they were hopelessly deadlocked. In explaining the deadlock to the judge, the foreperson stated that the jury was unanimously against charges of capital murder and first-degree murder, and nine of the 12 jurors were in favor of manslaughter. The following colloquy was entered on the record in open court:

The court: "All right. If you have your numbers together, and I don't want names, but if you have your numbers I would like to know what your count was on capital murder."

Juror Number One: "That was unanimous against that. No."

The court: "Okay, on murder in the first degree?"

Juror Number One: "That was unanimous against that."

Blueford asked for a partial verdict on the two most serious charges. The judge declined and instructed the jurors to continue deliberations. After the jury again reported a deadlock, the judge declared a mistrial.

The prosecution indicated the state's intention to retry Blueford. He moved to dismiss the capital and first-degree murder charges, citing the double jeopardy clause embodied in the Fifth Amendment to the U.S. Constitution. The trial court denied the motion, and the Supreme Court of Arkansas affirmed.

Blueford's case ultimately made its way to the U.S. Supreme Court. During oral argument in Blueford v. Arkansas, No. 10-1320, the petitioner's counsel zeroed in on the jury foreperson's statement that the jury had unanimously voted not guilty on the two most serious offenses. In responding to a question by Justice Stephen Breyer, Clifford M. Sloan, Blueford's attorney, said, "With respect, your honor, I disagree that it's a minor matter when a foreperson stands up, with the jury present, and says we have voted not guilty."

However, Justice Samuel Alito provided some insight into where the court was heading. Alito told Sloan, "The one characteristic of a verdict that seems perfectly clear to me is that it is final."

The double jeopardy clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Fifth Amendment provides that the state should not be allowed to use its power and resources to repeatedly attempt to convict a defendant and thereby subject him to embarrassment, expense and anxiety and increasing the possibility that he be found guilty despite his innocence (Green v. United States, 355 U.S. 184 (1957)).

The Supreme Court found that the jury foreperson's statement of the jury's position was not final. The double jeopardy clause does not prevent the reprosecution of a greater offense if a jury deadlocks on a lesser offense.

"The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either," Chief Justice John G. Roberts Jr. wrote on behalf of the majority.

The court provided a hypothetical to bolster its position. The court theorized this: A jury begins its deliberations with a vote on first-degree murder. Everyone votes not guilty. The foreperson calls for a vote on manslaughter and the vote is split. The jurors then begin to discuss the case. At that point one of the jurors begins to rethink his vote on first-degree murder and changes to guilty.

Roberts concluded, "It was therefore possible for Blueford's jury to revisit the offenses of capital and first-degree murder, notwithstanding its earlier votes." He added, "And because of that possibility, the foreperson's report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses."

Although plausible, Roberts' hypothetical did not reconcile with the facts in Blueford. Nor did the hypothetical resonate with all members of the court.

Justice Sonia Sotomayor dissented, joined by Justices Ruth Bader Ginsburg and Elena Kagan. She wrote, "Blueford's jury had the option to convict him of capital and first-degree murder, but expressly declined to do so."

The theory behind the "acquittal-first" jury instruction was to avoid double jeopardy problems by requiring the jury to render a verdict on the most serious charge or to hang without reaching any other charges, thereby allowing a new trial on all charges.

Blueford provided a different scenario — unanimity on the most serious charges and deadlock on the less serious charges. Sotomayor pointed to such a scenario when she wrote, "It would be anomalous if the double jeopardy clause offered less protection to a defendant whose jury has dead locked on the lesser and thus convicted of nothing at all."

The trial judge in Blueford should have honored Blueford's request for a partial verdict before declaring a mistrial on the deadlocked manslaughter offense — double jeopardy would have attached and justice would have been served. In light of Blueford, trial courts would do well to consider partial verdicts under similar circumstances.

Monday, June 4, 2012

Part VIII: The Crime Report examines youth violence

This is the eighth, and final, in a series of posts derived from Ted Gest's article Crime and Justice Trends in America: How We Got Here; Where We Go Next on cutting edge evidence-based crime fighting practices posted at The Crime Report.

Youth Violence--Franklin E. Zimring, University of California at Berkeley.

Zimring offered a "cautionary tale" about projecting juvenile crime rates. Based on rises in reported youth crime in the late 1980s and early 1990s, scholars like John DiIulio and James Alan Fox projected that if current trends continued, the number of arrests for juvenile homicide might reach 5,000 or more--creating by 2005 what DiIulio termed a generation of "superpredators."

This proved to be a "catastrophic error." Zimring said.

The actual number of juvenile homicide arrests turned out to be 1,073. The drop in juvenile crime numbers in the 1990s prompted John Donohue and Steven Levitt to propose what Zimring termed a misguided theory that the growth in abortions after the Supreme Court's 1973 Roe v. Wade ruling contributed to a decrease in juvenile offending later.

The mistaken projections about juvenile crime growth encouraged ineffective policy changes such as states' enacting laws providing for trying more juvenile defendants as adults, Zimring said.

What did not happen was a building boom in juvenile detention facilities because policymakers learned that crime was actually decreasing before they could vote for new institutions.

Zimring expects juvenile homicide rates between now and 2025 to track adult homicide rates.

Sunday, June 3, 2012

Inmate fights to avoid death

The Youngstown Vindicator
June 3, 2012

Mark Wayne Wiles paid the ultimate price on April 18. Wiles was executed at the Southern Ohio Correctional Facility near Lucasville. It was Ohio’s first execution in five months because of legal wrangling about lethal-injection.

Wiles was convicted in the fatal stabbing of a 15-year-old boy in 1985. He was out of prison on an aggravated-robbery conviction when he committed the Portage County murder.

Six weeks have passed since Wiles’ execution. Four more men have been executed nationwide and Ohio has another execution scheduled for this week.

Abdul Awkal is scheduled to die by lethal injection on Wednesday. Awkal shot and killed his wife and brother-in-law at the Cuyahoga County Courthouse during a divorce proceeding.

Clemency denied

Awkal was recently denied clemency by the Ohio Parole Board. Last week, his challenge to lethal injection was rejected by U.S. District Court Judge Gregory Frost, whose prior court order was behind the five month lull in executions.

Frost ruled that Awkal misunderstood Ohio’s long-running lethal injection lawsuit, which focused on the process of administering lethal drugs, and didn’t address Awkal’s concern that Ohio might execute a mentally ill inmate.

That’s not to say that Ohio’s death penalty procedure has been problem free.

Twice Ohio officials had to halt executions because something “went wrong.” In the case of Romell Broom, prison staff labored for two hours to establish an IV for administering the lethal injection. Finally, Ohio Gov. Ted Strickland intervened and stopped the execution.

The concern with Awkal’s execution has nothing to do with procedure; it has to do with Awkal’s mental health.

A court initially found him not competent to stand trial because of his mental health. He was sent to a psychiatric hospital and placed on medication before the court found him competent for trial.

WOIO-TV in Cleveland reported that Awkal was recently evaluated by an expert who found that he does not have a rational understanding of the reasons for this punishment and did not meet the legal standard necessary for execution.

Awkal was diagnosed with schizoaffective disorder. He is reported to have had delusions that included his belief that he managed the U.S. military efforts in Iraq and Afghanistan, and that he has been in direct communication with the CIA and Presidents George W. Bush and Barack Obama.


Four states have dropped the death penalty in recent years. California has put the issue on the ballot for this fall and Oregon’s governor has imposed a moratorium on carrying out executions.

The number of Americans who support the death penalty has fallen to 61 percent—down from 80 percent less than 20 years ago.

The U.S. Supreme Court has barred the execution of those who, because of insanity, have no rational understanding that death is imminent and why.

Last week, Texas, the most prolific state in terms of executions, stayed the execution of a paranoid-schizophrenic prone to delusions. He was being forced to take medication to remain competent for execution.

Although, in recent years, Ohio has been a leader in executions nationwide, capital punishment is on the decline.

The number of death sentences and the number of executions has tumbled. Public support for the death penalty has waned. Ohio would do well to closely examine the planned execution of Awkal. A cruel and merciless execution of a seriously mentally ill inmate may influence already declining public support for the ultimate penalty.

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Saturday, June 2, 2012

Incompetent inmates languish in California jails

Inmates with serious mental illnesses deemed incompetent to stand trial are languishing in California jail cells for months as they wait for state hospital beds to open up, according to advocates, jail officials and family members, according to The Sacramento Bee.

State and county budget cuts to mental health programs are combining with prison realignment and a shrinking number of state hospital beds to exacerbate the problem, they say.

In many counties, seriously mentally ill inmates routinely wait three to six months in jail before a state hospital bed opens up, Randall Hagar, director of government affairs for the California Psychiatric Association told The Bee. He calls the situation, which he says has gotten worse in recent years, "tragic."

In recent years, counties around California have been severely hit by budget cuts to mental health services. From 2009 to 2012, California has reduced mental health funding by $765 million, more than a fifth of its mental health budget, according to a report by the nonprofit National Alliance on Mental Illness, or NAMI, which advocates for services and treatment. As funds and services have disappeared, the number of people with mental illness landing behind bars has surged, reported The Bee.

State prison inmates with mental illnesses increased from 19 percent in 2007 to 25 percent in 2012, according to the California Department of Corrections and Rehabilitation.

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Friday, June 1, 2012

The Cautionary Instruction: The Double Jeopardy squeeze -- justice denied

The Pittsburgh Post-Gazette/Ipso Facto
June 1, 2012

When the U.S. Supreme Court ruled last week that a criminal defendant may be retried even though the jury in his first trial had unanimously rejected the most serious charges against him, Justice Sonia Sotomayor wrote that the court had given prosecutors “the proverbial second bite at the apple.” 

Indeed, the court had done just that. Imagine facing a jury as the foreperson tells the judge that she and her fellow jurors were unanimous in finding you not guilty of capital murder and first degree murder. Yet, less than an hour later a mistrial is declared and you will face a second jury on both charges.

In Blueford v. Arkansas, No. 10-1320, the U.S. Supreme Court held that a jury's unanimous but “not final” vote to acquit a defendant on some charges does not count as a verdict.

In 2009, Alex Blueford was tried for murder and manslaughter in the death of his girlfriend's 20-month-old toddler. The jury voted unanimously against the murder charges, but the foreperson said they were "hopelessly deadlocked" on whether he was guilty of manslaughter. The defense asked for a partial verdict on the more serious charges. The judge refused and declared a mistrial.

Was the foreperson’s disclosure of jury votes prior to the judge declaring a mistrial a verdict?

Chief Justice John Roberts said that at the time of the disclosure the jury was still deliberating and had the ability to reconsider capital murder charges. Roberts wrote, “The foreperson’s report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on these offenses, quite apart from any requirement that a formal verdict be returned or judgment entered.”

The Founding Fathers included the Double Jeopardy Clause in the Constitution in response to prosecutorial abuses by the British monarchy. Sotomayor wrote in her dissent, "This case demonstrates that the threat to individual freedom from reprosecutions that favor States and unfairly rescue them from weak cases has not waned with time. Only this Court's vigilance has."

At the core of the controversy are the trial court’s jury instructions. The instructions required the panel to consider four separate grades of homicide. Arkan sas’ jury instructions specifically direct jurors not to consider the lesser charges until they make a unanimous decision on the more serious charge.

A majority of jurisdictions use Arkansas’ “acquittal-first” instruction, requiring juries to unanimously convict or acquit on each offense before considering less serious charges. The remaining jurisdictions, including Pennsylvania, allow courts to give an “unable to agree” instruction. The jury can consider less serious charges after making reasonable efforts to reach a verdict on the more serious charges.

Sotomayor’s criticism is pointed, "The Double Jeopardy Clause requires a trial judge, in an acquittal-first jurisdiction, to honor a defendant's request for a partial verdict before declaring a mistrial on the ground of jury deadlock."

For Alex Blueford the trial judge’s failure was justice denied.