Friday, August 31, 2012

The Cautionary Instruction: Investigators use Facebook to fight crime

The Pittsburgh Post-Gazette/Ipso Facto
August 31, 2012

As summer comes to a close a string of business headlines chronicle the hit taken by Facebook investors. Facebook began trading publicly in May at $38 a share. This week the stock was trading at $19.

It is not only Facebook investors who are taking a hit, some Facebook users are finding themselves on the wrong side of the law, due in part to interactions on Facebook.

Facebook is a free social networking website that allows users to create profiles, upload photos and video, send messages and keep in touch with friends. There are more than 900 million users worldwide.

Law enforcement officials are among those 900 million users. Facebook has been used in investigations, as evidence and for purposes of arrest.

Augustin Gonzalez, a suspect in a 2010 murder, posted on the Dallas police Facebook page that he wanted to turn himself in but was in Mexico. Detectives responded, via Facebook, advising him to surrender to authorities at the nearest U.S. border check point.

A Utah woman being held hostage by a former boyfriend sent the following Christmas Eve message via Facebook. "Hello," it said. "Is anyone out there? I am having a serious problem and me and (my son) will be dead by morning."

Quick work by her Facebook friends located an address and alerted police. She was rescued and her ex-boyfriend was arrested.

Twenty-year-old Michael Baker posted a photograph of himself on Facebook stealing gas from a police cruiser. Baker's girlfriend said it was meant to be a joke. He was arrested, charged with theft by unlawful taking, and spent a night in jail.

Anthony Wilson was accused of robbing several Detroit-area banks last year. Investigators from the FBI scoured Wilson's Facebook page to compare uploaded photographs he had posted with surveillance footage taken from the scene of the robberies.

Investigators matched up articles of clothing from the surveillance photos to clothing worn by Wilson in Facebook photos to help build the case against him, resulting in Wilson’s indictment.

Orange County, California Sheriff Sgt. Chad Hogan monitors Facebook and other networking sites to aid him in his investigations. “Sometimes they’ll air out their dirty laundry in posts, and it’s stuff I have no idea why they would ever make public. I never cease to be amazed.”

Things have not improved for criminals who use Facebook.

In an important ruling issued last week, New York U.S. District Court Judge William Pauley III ruled that an accused criminal cannot rely on the Fourth Amendment to hide evidence on his Facebook profile. Federal investigators gained access to a suspect’s profile using an informant who was “friends” with him on Facebook.

According to Pauley, if a criminal shares posts with his friends, those posts are public and can be used however the recipient wants to use them -- including giving them to the government as evidence.

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Thursday, August 30, 2012

Officials object to Arizona private prison plan

At the end of this week, the Arizona Department of Corrections is slated to award contract to a private prison company. The contract calls for up to 2,000 medium-security beds if the prison population increases, reported the Arizona Republic. The first 500 beds would come online in 2014, while 500 more would be added the following year. There's no timetable for the potential 1,000 remaining beds.

The contract comes even though the state's overall prison population is expected to remain flat the next two years and increase only slightly thereafter. State records also show it's more costly for taxpayers to have private businesses run prisons.

State Corrections Director Charles Ryan has acknowledged that the state has an overall surplus of roughly 2,000 beds. But he also has said that Arizona has a shortage of permanent medium-security beds and that the problem is expected to get worse in 2016.

A letter sent to Governor Jan Brewer with more than 50 signatures, including current and former state legislators as well as a Pima County supervisor, Tucson's mayor and a few Tucson City Council members is opposed to the private prison contract, according to the Republic.

"There is ample evidence to suggest that for-profit corporations are not accountable to the citizens and taxpayers of Arizona," the letter states. "As private companies, they are not subject to the same transparency requirements or checks and balances as the Department of Corrections, despite the fact that they are performing the same functions and are paid with taxpayer dollars."

To read more:

Wednesday, August 29, 2012

Deadline Passes for PA Juveniles Lifers

“Pennsylvania has the largest number of juvenile lifers in the United States and in the world,” Marsha Levick, Deputy Director and Chief Counsel at the Juvenile Law Center in Philadelphia, told CBS Philly.

She says there are more than 400 juvenile lifers in Pennsylvania, that’s roughly one-fifth of 2500 juvenile lifers nationwide.

“The reason why we have such a high number is because we have only one sentence available in Pennsylvania currently for juveniles convicted of first or second degree murder,” Levick told CBS Philly. “And that’s a mandatory sentence of life without parole.”

That’s because juveniles charged with murder are tried as adults.

“Now that the sentence has been ruled unconstitutional, obviously the courts in Pennsylvania will need to figure out what the new sentencing scheme will look like and the legislature will have a role in this,” Levick told CBS Philly.

Levick believed that about 300 juvenile-lifers filed their appeal by the of August 24. She says those who miss the deadline may be able to get help.

Tuesday, August 28, 2012

No national data on bystanders struck by police bullets

The Empire State Building shooting was the second time in two weeks that NYC police officers fired fusillades on the crowded streets of Midtown — 28 shots fired between the two episodes, reported the New York Times. 

The nanosecond speed at which a shooting plays out is followed by hours of analysis, second-guessing and study.

There is no national data on how often bystanders are struck by police bullets; Geoffrey P. Alpert, a criminologist at the University of South Carolina and an expert on the police use of force, told the Times that hitting innocent civilians “doesn’t happen very often, but it happens.”

In many police shootings, stray shots are almost inevitable; a study based on New York’s annual firearms discharge reports indicated that officers hit their targets 34 percent of the time.

“It’s a tense situation, people are scared and moving,” Professor Alpert told the Times. “It’s not like the movies, where you can shoot the gun out of his hand.”

The NYC Police Department does include such episodes in its firearms discharge report. In 2010, for example, the police hit three bystanders in a shootout with a gunman; the year before, one bystander was struck when an officer struggled with a suspect who was trying to take his gun, and the gun fired.

To read more:

Monday, August 27, 2012

Race may be issue in Louisiana Supreme Court controversy

Justice Bernette Johnson was elected to the Louisiana Supreme Court in 1994 on the heels of a U.S. Supreme Court decision that forced the state court to redraw a district to allow black justices to be elected, reported the USA Today.  Her elevation to chief justice is being challenged and some suggest it's because of her race.

Under an agreement stemming from that ruling, Johnson was elected to the 4th Circuit Court of Appeals, so as not to oust the sitting justice she would ultimately replace, but she took part in state Supreme Court duties, from penning opinions to earning an equal salary as other associate justices. She was re-elected directly to the court in 2000.

When current Chief Justice Catherine Kimball announced her retirement this summer, Johnson assumed she would be the next chief, having served the longest on the court. The state constitution recognizes the judge "oldest in point of service" as the next chief justice.

But Justices Jeffrey Victory and Jeannette Knoll, who joined the court in 1995 and 1997, respectively, objected, claiming they have been on the court longer, reported USA Today.

The objection to Johnson has racial overtones.  The two judges argue that at its core the debate is about whether Johnson's years from 1994 to 2000 should count as tenure on the high court. The current chief justice called for a panel of state appellate and Supreme Court justices to make a decision on the case. Johnson sued blocking that procedure.

"This is one of the most blatant and obvious racially motivated fights we've seen since David Duke made the runoff for governor," said state Sen. J.P. Morrell, a Johnson supporter, referencing the former Ku Klux Klan grand wizard who narrowly lost a bid for Louisiana governor in 1991.

To read more:

Sunday, August 26, 2012

NYC police shoot nine while subduing alleged killer

New York City Police shoot nine people in the process of bringing down an alleged killer armed with a .45 caliber hand gun. The two officers shot sixteen times on a busy Manhattan street, reported the Washington Post.

In the initial chaos Friday, it wasn’t clear whether the gunman or the officers were responsible for the trail of the wounded. But based on ballistic and other evidence, “it appears that all nine of the victims were struck either by fragments or by bullets fired by police,” Police Commissioner Raymond Kelly told the Washington Post.

Police officials have said the officers appeared to have no choice but to shoot Johnson, whose body had 10 bullet wounds in the chest, arms and legs.

Police determined that three people were struck by whole bullets — two of which were removed from victims at the hospital — and the rest were grazed “by fragments of some sort,” Kelly said.

Two women with leg wounds and a man with a wound to his buttocks required surgery and remained hospitalized Saturday. They were listed in stable condition.

To read more:

Saturday, August 25, 2012

Oklahoma executes man who killed woman and children

The 27th Execution of 2012

Michael Hooper, an Oklahoma death-row inmate who tried to delay his execution by challenging the state's lethal-injection method was executed August 14, 2012, just hours after the U.S. Supreme Court refused to step in, reported the Associated Press.

Hooper, convicted of the December 1993 shooting deaths of his former girlfriend and her two young children, received a lethal dose of drugs at the Oklahoma State Penitentiary in McAlester. He was pronounced dead at 6:14 p.m., according to the Department of Corrections.

Hooper was sentenced to death for killing Cynthia Lynn Jarman, 23, and her two children, Tonya, 5, and Timmy, 3.

Prosecutors said the victims were with Hooper in a pickup in a mowed field when he placed a 9 mm pistol under Cynthia Jarman's chin and shot her, then shot the children to prevent them from being witnesses, reported the Associated Press.

Strapped to a hospital gurney with intravenous tubes inserted into each of his arms Tuesday, Hooper spoke as his and his victims' relatives prepared to watch his execution through a window from separate rooms.

"I just want to thank God for such an exuberant send-off," he said as other death-row inmates banged their cell doors in a tribute to the condemned man. "Also, my family for standing by me throughout all this. I appreciate them being there for me through the hardships."

Hooper did not directly speak to the victims' family members but indicated that he sought their forgiveness.

"I ask that my spirit be released directly into the hands of Jesus. I'm ready to go," he said, then turned to family members, including his mother, brother and grandfather, and smiled as the drugs began to flow at 6:08 p.m.

"I love you all," he said, then deeply exhaled and closed his eyes. Minutes later, he lay motionless.

The victims' family later issued a statement offering "our sincerest condolences" to Hooper's relatives.

"This has been a long and arduous journey for all of the families," the statement said. "We hope to close this chapter in our lives."

Hooper had sued the state last month in an effort to halt his execution, claiming that Oklahoma's three-drug lethal injection protocol was unconstitutional, reported the Associated Press.

Hooper was the fourth death-row inmate executed in Oklahoma this year.

To read more:

Arizona executed man who represented himself at trial

The 26th Execution of 2012

Arizona executed Daniel Wayne Cook on Auust 8, 2012.  He was convicted of first-degree murder and sentenced to death for the 1987 strangulation murders in Lake Havasu City of 26-year-old Carlos Cruz-Ramos and 16-year-old Kevin Swaney, according to ABC15.

His execution by injection was Arizona's fifth so far this year, and more could be scheduled. The most Arizona has conducted in a year was seven in 1999.

The execution started at 10:26 a.m. and Cook was pronounced dead at 11:03 a.m.

Cook's last meal consisted of eggplant lasagna and vegetables, root beer and ice cream.

Cook's last words were an apology to the victims' families.

"I'd like to say sorry to the victim's family. I know that's not enough... (significant pause)... Where am I? To my lawyers, thank you. Red Robin, yum. I'm done. I love you".

Swaney's brother, Shean Stewart, apologized to his siblings before saying with choked tears, "I felt sorry for him."

Cook, 51, spent nearly half of his life on death row. He avoided being executed in April 2011 when the U.S. Supreme Court just one day before a scheduled execution date ordered a stay to allow consideration of an appeal, reported ABC15.

That appeal, based on a claim of ineffective legal representation early in Cook's appeals process, was later denied.

Court documents say Cook and Matzke were drunk and high on methamphetamine when they stole about $90 from Cruz-Ramos, a Guatemalan immigrant. After Cruz-Ramos confronted the two, they overpowered him, gagged him and tied him to a chair. Cruz-Ramos was then tortured, raped and murdered.

Swaney arrived at the apartment hours later. He was raped and murdered after he was shown Cruz-Ramos' body stuffed in a closet.

Cook represented himself during his trial and sentencing after concluding that his defense lawyer wasn't competent, and the 9th U.S. Circuit Court of Appeals said it was Cook's decision to not present sentencing evidence.

To read more:

Friday, August 24, 2012

The Cautionary Instruction: Immigration detainees drive private prison growth

The Pittsburgh Post-Gazette/Ipso Facto
August 24, 2012

At the end of 2010, state and federal correctional authorities housed over 1.6 million prisoners, a decrease of over 5,000 inmates from 2009. The prison population nationwide declined for the first time since 1972.

Logic would dictate that a decrease in incarceration would have an impact on the private prison industry. Not so, the federal government has picked up the slack for private prison entities.

In 2010, private prisons held about 128,000 or eight percent of the total prison population. From 1999 to 2010, the number of individuals held in private prisons grew by 80 percent, compared to 18 percent for the overall prison population.

Private prison growth was fairly predictable through 2008. However, when the economy soured some states began to look to prisons to cut costs and reduce government budgets. With that came scrutiny of private prison contracts.

The resulting losses for private prison companies were more than offset by the rapid expansion of federal detention pursuant to federal Immigration and Customs Enforcement (ICE) and the U.S. Marshals Service.

According to a recently released report by The Sentencing Project, between 2008 and 2010, the number of privately-held inmates decreased by 1,281, while the number of privately-held detainees increased by 3,327. This growth was part of a larger trend to step-up efforts to find, incarcerate, and deport people who violate immigration laws.

The horrible attacks of 9/11 had an impact on immigration enforcement. The number of federal prisoners held in private prisons rose by 784 percent since shortly before 2001.
There are two basic concerns with prison privatization -- first, unsubstantiated claims of cost savings; and second, problems with oversight.

Last fall, Ohio became the first state to sell an existing state prison to a private prison company. A study by Policy Matters Ohio found that Ohio officials were not accurate with regard to their prison privatization savings projections.

A close look at the sale of the facility to Corrections Corporation of America (CCA) suggested that that deal, rather than saving up to $3 million a year as the state projected, could instead wind up costing taxpayers millions of dollars.

Municipal Corrections LLC, a privately owned detention center housing illegal immigrants in Ocilla, Georgia is in bankruptcy after getting local leaders authorize bond financing to expand the local jail from 512 beds to 1,201. Ocilla, a town of 10,000 people, is left hanging without revenue to pay on the bonds and delinquent taxes.

A recent prison riot at the Adams County Correctional Center in southwest Mississippi resulted in the death of a guard and the taking of hostages. The 2,567-bed prison, owned and operated by CCA, holds ICE detainees for the Federal Bureau of Prisons.

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Tennessee: Getting shot in the leg no big deal

In Tennessee getting shot doesn't seem to hurt as much as it does in other states.  So says the state's supreme courrt.  The Tennessee Supreme Court has ruled that a gunshot wound isn’t necessarily the same as a serious bodily injury.

The court’s opinion was published this week in the case of two men found guilty of especially aggravated robbery for shooting a man in the leg during a 2008 Memphis holdup.

The opinion written by Justice Sharon G. Lee said the prosecution failed to show that the victim, was at risk of dying, lost consciousness or suffered extreme pain, disfigurement or substantial impairment. Those are the standards spelled out in the state statutes that define serious bodily injury.

The court threw out the especially aggravated robbery convictions against the two men. A lower court was ordered to sentence them on the less serious charge of aggravated robbery.

In Tennessee, thugs can expect a slap on the wrist for shooting somoeone as long as they keep it below the waste.

To read more:

Thursday, August 23, 2012

A 13-year-old North Carolina boy faces 1st degree murder charge

A 13-year-old and 15-year-old boy are being detained by police in North Carolina in connection with the shooting death of 16-year-old Fernando Garibay-Benitez.

A Wake County judge will decide next week if prosecutors have probable cause to try the boys as adults for first-degree murder.  If the state proceeds with adult charges the two will be placed in an adult court system that gives little lenience for their youthful offenders, reported the News-Observer.

If the boys cases are transferred to adult court — as state law requires for anyone 13 or older charged with first-degree murder — they could be treated similarly to grown men.

State law has not always allowed for juveniles accused of felonies to be tried in the adult court system. The law was changed in the early 1990s after a widespread hue and cry over the sentence given a seventh-grader who used a hammer to fatally bludgeon a 92-year-old widow while stealing her car, reported the News-Observer.

“It’s just so classic that we change our laws after a single heinous crime, when the public is up in arms,” Tamar Birckhead, an associate professor of law at the University of North Carolina at Chapel Hill who specializes in juvenile justice issues, told the News-Observer. “So many people are affected by this.”

Eleven percent of the violent crime in the country is committed by offenders younger than 18, Birckhead said.

The boys accused last week of first-degree murder are being held in a youth detention center as they await hearings in their case. They must take classes and can seek counseling while detained.

Though they will be kept separate from adult prisoners for a while, they could spend the rest of their lives in prison if convicted.

According to the News-Observer,  a U.S. Supreme Court ruling this summer gives judges more leeway in deciding a sentence. They can now consider sentences of less than life in prison without parole. Adults convicted of first degree murder in North Carolina are sentenced to either life in prison without the possibility of parole or death.

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Wednesday, August 22, 2012

Sentencing juvenile beyond natural life cruel and unusual

The California Supreme Court recently ruled that sentencing a juvenile to imprisonment – a term of years – with a parole eligibility date that falls past his natural life expectancy violates the Eighth Amendment’s ban against cruel and unusual punishment.

Following the U.S. Supreme Court’s 2010 decision in Graham v. Florida, which prohibited sentencing juveniles to life without parole for non-homicide convictions, the California court unanimously agreed that Rodrigo Caballero’s sentence of 110 years to life for three attempted murders with bodily injury deprived him of “a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

Caballero was 16 when he fired a handgun at three rival gang members, injuring one of them. According to the court, he would not become eligible for parole until 2112. The court interpreted Graham’s “flat ban” on life without parole sentences “applies to all nonhomicide cases involving juvenile offenders, including the term-of-years sentence that amounts to the functional equivalent of a life without parole sentence” such as Caballero’s.

This is an important ruling.  Although applicable only to California it addresses an issue that is going to up more frequently in light of the U.S. Supreme Court's ruling banning mandatory sentence of life without parole for juveniles.

Consistent with Graham, the court said, “we conclude that sentencing a juvenile offender for a nonhomicide offense to a term of years without a parole eligibility date that falls outside the juvenile’s natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.”

The remedy for defendants who were sentenced for crimes they committed as juveniles who seek to modify their de facto life sentences file petitions for habeas corpus seeking resentencing.

To read more:

Tuesday, August 21, 2012

FBI rarely audits police reporting practices

In Milwaukee where thousands of violent assaults were not included in the crime rate since 2006, the Milwaukee Journal Sentinel discover that the FBI rarely audits data reported by police.

The FBI's crime reporting program is considered the final word on crime trends in the United States.  However, the agency does little to insure the data is accurate. When the FBI does an audit, the reviews are too cursory to identify deep flaws.

In each of the past five years, FBI auditors have reviewed crime statistics at less than 1% of the roughly 17,000 departments that report data, a Journal Sentinel examination of FBI records has found. In all, they've audited as many as 652 police agencies during that time, or less than 4% of the total.

And a Journal Sentinel survey of police departments in the 30 largest U.S. cities found that nearly two-thirds have not been audited in the past five years.

Inaccurate crime data gives the public a false sense of the true level of crime.  False data can also be used by policymakers to give people the impression that crime fighting policies are working when in fact they are not.  Simply, false data gives the allusion that crime is done when it is actually increasing.

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Monday, August 20, 2012

Texas prison population continues to fall

Tony Fabelo served under two Texas Gov. Ann Richards and Gov. George W. Bush as director of the now defunct Criminal Justice Policy Council.  He is best remembered for his staunch advocacy of prison diversion programs for nonviolent offenders.

According to the Austin American-Statesman, Fabelo is the reason Texas policymakers began to question the cost-effectiveness of locking 'em up and throwing away the key. Fabelo offered facts, figures and cogent analysis to drive a message that incarceration isn't the universal answer.

The Texas prison census has dropped by 2,500. Last year, the state's 111 prison units held 156,500 prisoners; this year the count is 154,000. Texas has always had the dubious distinction of having the highest incarceration rates per capita of all 50 states. Texas now ranks fourth, reported the American-Statesman.

Experts cite a variety of factors, including an aging population, for the drop in crime, but there is little doubt that judges are sending more defendants to rehabilitation programs aimed at curbing drug and alcohol addictions that fuel criminal behavior. The programs are cheaper than prisons, and though the success rate will not be 100 percent, alternatives to incarceration have proven to be effective crime-fighting tools.

"The challenge is to sustain the outcomes to see how far you can go in downsizing prisons. I have my doubts, but it's an interesting time for criminal justice," Fabelo told the American-Statesman's Mike Ward.

To read more:

Sunday, August 19, 2012

Mangino appointed to committee to study death penalty

The Pennsylvania Joint State Government Commission has appointed Matthew T. Mangino to its Advisory Committee on Capital Punishment.

The committee, established in 2011 by Senate Resolution No. 6, is comprised of four state senators and approximately 30 members from various backgrounds. The committee is tasked with investigating, among other things, the cost-effectiveness of the system, alternatives to capital punishment and whether the current methods of selection of defendants for capital trials are unfair or discriminatory.

Mangino is a member of the Pennsylvania Board of Probation and Parole and is the former two-term district attorney of Lawrence County.

The committee’s first meeting is scheduled for Thursday, August 23 at the state capitol in Harrisburg.

Committee Members

Saturday, August 18, 2012

Top ten crime myths

This was an interesting post from Metrotrends Blog from the Urban Institute, the top ten crime myths.

According to a recent Gallup poll, crime ranks as the 33rd most important issue facing America today. Yet, majorities of Americans report being fearful of criminal victimization. Here are the ten most popular crime myths, according to Metrotrends, and the true story behind them:

o Myth: crime is getting worse, if not in your neighborhood then certainly in the “bad parts” of town, which are much more dangerous than when you were a kid. Fact: if you are under 40, on average you are safer now than you have ever been.

o Myth: suburbs are safer than cities. Fact: true, on average, but the trend is better for cities than suburbs. At the peak of the crime wave in 1991 there were 138 homicides in Prince George's County and 479 in Washington, DC. Last year, there were 82 homicides in PG (down 40%) and 132 in DC (down almost 75%).

o Myth: criminal investigators have enormous data systems at their fingertips that track virtually everything about all of us. Fact: police do have access to lots of data, but typically use it to find a known suspect rather than identify an unknown suspect.

o Myth: forensic examiners (CSIs) investigate crimes, carry weapons, and can process complex crimes in minutes. Fact: the typical piece of DNA collected from a crime scene takes months to process (if it is at all) and the civilian processing it is different from the evidence collector.

o Myth: most crimes are solved by fingerprints and DNA. Fact: less than one percent of all serious crimes are solved by DNA and fingerprints do only slightly better.

o Myth: fingerprints can definitively match a person to a crime scene. Fact: fingerprint matches are entirely subjective and we have no idea whether the cliché that all fingerprints are unique is actually true.

o Myth: there is an epidemic of children being kidnapped from their homes in the dead of night. Fact: the FBI estimates that in 2008 a total of 155 children were kidnapped by strangers, thus a child is about 5 times more likely to drown than be kidnapped.

o Myth: there are two typical types of offenders:

o one is the brilliant loner psychopath who commits serial crimes and can’t be caught without the aid of large task forces, luck, and equally brilliant loner detectives. Fact: most criminals are far less educated, poorer, and sicker than the average American.

o type two is the ruthless, soulless gang-banger who can only be contained (but never defeated) by armies of police. Fact: gang members are typically teenagers, generally in a gang for about a year before voluntarily leaving, and commit as many crimes against their fellow gang members as others.

o Myth: serial killers account for many murder victims. Fact: out of almost 15,000 homicides in 2010, perhaps one percent were victims of a serial killer, while 4 times as many were victims of infanticide.

o Myth: there are a lot of adolescent predators on the loose. Fact: at any given time there are very few juveniles whose behavior has warranted a placement in secure confinement. In New York City, on any given day there are only about 250 youth in secure confinement.

Friday, August 17, 2012

The Cautionary Instruction: The media circus

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

Drew Peterson is the media trial du jour. Peterson, a former police officer, is on trial in Illinois for the murder of this third wife. His fourth wife also disappeared.

The trial is not being televised but cable television is abuzz. The Chicago Tribune recently bemoaned Peterson’s attorneys for “over” accessibility. Peterson’s attorneys “typically will stop for the assembled camera crews and field questions each day on their way” in, out and during the lunch break.

A reporter complaining about accessibility in the midst of a media circus is like a lion trainer complaining about his lion’s ferocious roar.

The media circus is not new. In 1921, silent film star Fatty Arbuckle went through three high profile trials before he was acquitted of murder. In 1925, Clarence Darrow and William Jennings Bryan squared off in Tennessee for the Scopes Monkey Trial. The trial drew intense national publicity as reporters flocked to the small town of Dayton.

The media circus was thrust into the public consciousness in the prescient movie “Dog Day Afternoon.” The 1975 movie depicted two inept bank robbers who get trapped in the bank by the police as a crowd outside, and viewers at home, watched things spin out of control.

O.J. Simpson’s nine month trial in 1995 may have set the media circus standard. The “trial of the century” riveted a national audience with memorable quips like, “if it doesn’t fit, you must acquit.”
Simpson was acquitted. The attorneys on both sides became media personalities. The reporters covering the trial became celebrities.

Last year, Casey Anthony ratcheted-up the media circus. People waiting in line to get into court each day had as much interest in seeing their favorite TV news stars -- touching them, shaking their hands and taking photos with them -- as they did in the actual trial.

Judge Belvin Perry exiled the TV personalities—Nancy Grace, Geraldo Rivera, Greta Van Susteren— to the courtroom’s balcony to control distractions. Still the judge admonished the media for “creating a circus like atmosphere around the trial.”,,20513241,00.html

Pennsylvania just finished a sensational trial with a high profile defendant. The trial of former Penn State football coach Jerry Sandusky generated an enormous amount of attention.

Although the satellite trucks were planted on the PSU lawn and were outside the Centre County Court House, the Simpson-Anthony-Petersonesque media circus was absent, why?

Unlike Florida and California, TV cameras are not permitted in Pennsylvania courtrooms. Judge John Cleland prohibited live emails, texts and tweets from the courtroom during trial. A gag order prohibited lawyers from talking with the media.

Most importantly Sandusky’s trial had no suspense. His guilt was a foregone conclusion. He went to trial, not because he had a defense, but because he had no other options.

The prosecution didn’t offer a plea, the case was too strong. An open plea would probably have resulted in a life sentence due to Sandusky’s age. Sandusky rolled the dice at trial because he had no other option. That is not the stuff of enduring notoriety.

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Thursday, August 16, 2012

Jails and prisons the new 'psychiatric hospitals'

Rogette Nicole Harris wrote an interesting op-ed on mental illness and crime for the Harrisburg Patriot-News.  Here are some excerpts:

Unfortunately, the safety net for the mentally ill is vanishing.

Last year, two-thirds of the nation’s states cut mental health care appropriations. If this continues, the chance of catching future gunmen before they act declines.

A survey of mental health agencies in Philadelphia found that children have to wait an average of 37 days to start treatment. That is 37 days too many.

States such as Pennsylvania are transferring mental health funds to local county officials as block grants, combining the money with other programs.

When social service programs are forced to compete with other local needs, mental health often suffers. As a result, society suffers and is in danger.

In 2008, 67,560 uninsured people in Pennsylvania did not get mental health care because they could not afford the services...

In Pennsylvania, more than a half-million adults and children live with serious mental illness, the second-leading cause of disability after heart disease and the second-leading cause of workplace absenteeism.

And the consequences of nontreatment are devastating.

People with untreated psychiatric illnesses comprise one-third of the homeless population, are more likely to commit suicide, and comprise about 16 percent of the total jail and prison inmate population.

These statistics are a direct reflection of the failure of public mental health systems to provide appropriate care and treatment to individuals with severe mental illnesses.

The key word here is untreated. When treated, individuals with a mental disorder can lead productive, fulfilling lives and make positive contributions to society...

Without proper treatment, jails and prisons have emerged as the new “psychiatric hospitals.” This is unacceptable and only puts a temporary bandage on the problem.

To read more:

Wednesday, August 15, 2012

The Cautionary Instruction: Three states, three approaches and three very different results

The Pittsburgh Post-Gazette/Ipso Facto
July 27, 2012

In 2007, the U.S. Supreme Court decided Panetti vs. Quarterman.   The court was asked to decide whether a condemned prisoner had a "rational understanding" of his crime and punishment for purposes of execution.

The court also addressed the retributive purpose of capital punishment, "it might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole [to] affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed."

Cases pending before courts in Texas, Oregon and Georgia point to the absurdity of death penalty litigation. In Georgia, the court stayed the execution of a man with an IQ of 69, not because he is mentally retarded, but because a state court wants to examine a newly implemented execution protocol. In Texas, the court said a schizophrenic killer is competent and his execution should proceed. In Oregon, where the governor granted a reprieve to all condemned killers, one man is demanding to be executed.

The Georgia Supreme Court on Monday stayed the execution of condemned killer Warren Hill two hours before his scheduled execution. The high court unanimously granted the stay to determine whether a recent change to Georgia’s lethal injection protocol violates state law.

Separately the court declined to hear Hill’s appeal challenging the state’s standard to determine whether Hill is mentally retarded and thus ineligible for execution.

In Texas, a county judge on Tuesday refused to order a psychiatric evaluation for Marcus Druery to determine whether the inmate is competent to be put to death. All parties agreed that Druery is schizophrenic.

Druery hears voices and believes he is being poisoned with feces-spiked food. His speech is illogical, and although he has been on death row almost six years, he insists that he is serving only a 10-month sentence.

Texas plans to proceed with Druery’s execution even though he refuses to take his medication and does not acknowledge his mental illness.

In Oregon, Governor John Kitzhaber is morally opposed to the death penalty. He granted everyone on death row a reprieve, at least while he is governor. However, not everyone agrees with Kitzhaber, including a recipient of his repreive.

Gary Haugen waived his appeal and volunteered to be executed. His attorney is arguing that in past cases the Oregon Supreme Court has adopted an 1833 U.S. Supreme Court decision authored by Chief Justice John Marshall that suggests inmates must agree to a pardon for it to take effect.

The trial court seems receptive to Haugen’s argument.

Three states, three different approaches and three very different results. The news this week points to the absurdity of a 33 state approach to capital punishment.

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Chicago parents concerned about rise in violence

Chicago parents concerned about this year's rise in homicides and shootings has led increased measures to protect their children from becoming innocent victims of violence, reported the Chicago Tribune. That often means setting rigid curfews, limiting where their children can play. or keeping their days filled with indoor activities. Children are chafing at the limits on their movements on hot summer days and long for the freedom that older siblings or friends in safer neighborhoods enjoy. "I want to be able to walk around in a neighborhood and not think about getting shot," said Samaiya Butler told the Tribune.

The fear of violence "gets really blown up in a parent's mind," Tali Raviv, a psychologist told the Tribune. The damage from even witnessing violence can be severe, though. James Garbarino, a professor at Loyola University Chicago who specializes in the psychological impact of violence on children, said youngsters who experience traumatic events can typically take a year to fully recover. For children raised in neighborhoods where violence is commonplace, he told the Tribune, "it's hard to say everything's back to normal because normal is the problem."

Tuesday, August 14, 2012

Washington state seeks to legalize marijuana

Not so fast says AG Holder, the Feds may intervene

Washington state is considering an initiative to legalize, tax and regulate marijuana.  The measure would raise up to $1.9 billion in new tax revenue over five years, reported the Seattle Times. It was not so long ago that legalized gambling was shunned as a viable revenue producer.

In these lean economic times, legalizing marijuana may be an attractive options for states trying to maintain social programs without raising taxes.

The time may be right for a legalization effort.  According to the New York Times, a recent Gallup poll found only 31 percent of Americans said they thought the government was making much progress dealing with illegal drugs, the lowest share since 1997. But fewer people say they worry about drug abuse than 10 years ago. Only 29 percent of Americans think it is an extremely or very serious problem where they live, the lowest share in the last decade.

People will use legalized marijuana. Washington's revenue estimate is based on an assumption that 363,000 customers would consume 187,000 pounds of marijuana in new state-license retail shops, reported the Times. Initiative 502 will be on the ballot this fall. However, success on the ballot will not insure legal marijuana.

A 2010 letter from U.S. Attorney General Eric Holder, sent as California voters were considering legalizing marijuana, indicated the federal will "vigorously enforce the CSA (Controlled Substances Act) against those individuals and organizations that possess, manufacture and distribute marijuana for recreational use, even if such activities are permitted under state law."

Not all leaders share Holder's position. New Jersey Gov. Chris Christie said, "The war on drugs, while well-intentioned, has been a failure."

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Monday, August 13, 2012

Corbett signs death warrant, 13 years since last execution

Pennsylvania Governor Tom Corbett signed a death warrant for Terrance Williams, convicted in a 1984 robbery-murder when he was an 18-year-old college freshman.  Williams is scheduled for execution on October 3.

It has been 13 years since Gary Heidnik was executed in Pennsylvania.  Heidnik was the last person executed in SCI Rockview. He volunteered, waiving his appeal rights. He was convicted of the kidnapping, torture, rape and murder of six women in Philadelphia.

According to the Philadelphia Inquirer, Williams' execution is likely to happen. He has exhausted three appellate avenues through state and federal courts, and the U.S. Supreme Court rejected his last appeal on June 29.

Williams' only legal hope is an emergency petition asking a Philadelphia judge to stay execution based on newly disclosed evidence that Williams had been sexually molested throughout his life - including for five years by the man he murdered.

The murder was committed in 1984, 28 years ago, yet this new information was only recently disclosed.

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Sunday, August 12, 2012

PA Supreme Court expedites two JLWOP cases

The Pennsylvania Supreme Court has agreed to hear arguments in two expedited cases that relate to juvenile life without parole. The U.S. Supreme Court’s recent decided in Miller v. Alabama that mandatory life sentences without parole for juveniles violated the Eighth Amendment ban against cruel and unusual punishment.

According to the Legal Intelligencer, the court has agreed to hear the case of Commonwealth v. Cunningham, involving the 1999 arrest for murder and robbery of Ian Cunningham, who was 17 years old at the time. He was convicted of those crimes in 2003 and sentenced to life in prison.

Cunningham’s allocatur request has been pending for some time. According to the docket in the case, the court reserved judgment on the petition for appeal in October 2009 until it ruled in Commonwealth v. Batts. The Batts case was also on hold, however, while the court awaited the decision in Miller, which came down in June, reported the Intelligencer.

Last month, nearly three years after granting allocatur in the case, the Pennsylvania Supreme Court scheduled Batts for oral argument. The court will hear arguments in both Batts and Cunningham in Philadelphia in September.

The Supreme Court directed the parties to address whether the U.S. Supreme Court’s June ruling in Miller retroactively applies to an inmate serving such a sentence when he has exhausted his direct appeal rights and is proceeding under the Post Conviction Relief Act.

The court further ordered the parties in Cunningham to address what, if Miller does have retroactive effect, the appropriate remedy under the PCRA is for a defendant sentenced to life in prison without the possibility of parole for a murder committed when the defendant was under the age of 18.

In the September 17, 2009, order granting allocatur in Batts, the Supreme Court asked the parties to address whether sentencing a 14-year-old to die in prison was unconstitutional in light of the U.S. Supreme Court’s 2005 decision in Roper v. Simmons. Roper barred capital punishment for those who committed crimes when they were under the age of 18. The Batts allocatur grant also asked the parties to address whether the mandatory nature of the sentence violated Qu’Eed Batts’ rights under the Eighth and 14th amendments, reported the Intelligencer.

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Saturday, August 11, 2012

Mass murder not increasing in spite of summer of massacres

Professor James Alan Fox wrote in the Boston Globe that the summer of 2012 has seemed especially horrific in terms of gun violence. First, five people shot dead in a Seattle cafe, then the massacre of 12 moviegoers in Colorado and six innocent people shot to dead at a Sikh temple in Wisconsin.

Many Americans are alarmed at the "rise" in mass murder and many are scrambling to find an answer. However, Fox points out "There is one not-so-tiny flaw in all of these theories for the increase in mass shootings. And that is that mass shootings have not increased in number or in overall body count, at least not over the past several decades."

Fox continued:

Based on data extracted from official police reports to the FBI, the figure below shows annual incident, offender and victim tallies for gun homicides in which at least four people were murdered. Over the thirty-year time frame, an average of about 20 mass murders have occurred annually in the United States with an average death toll of about 100 per year.

Without minimizing the pain and suffering of the hundreds of who have been victimized in seneless attacks, the facts say clearly that there has been no increase in mass killings, and certainly no epidemic. Occasionally, we have witnessed short-term spikes with several shootings clustering close together in time.

In the 1980s, we had a flurry of postal shootings, and the 1990s included a half dozen schoolyard massacres. Other than the copycatting reflected in these cases, the clustering of mass murders is nothing more than random timing and sheer coincidence.

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Friday, August 10, 2012

The Cautionary Instruction: PA Supreme Court to take on issue of silence

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

The Pennsylvania Supreme Court will take up an important criminal law question that has befuddled practitioners across the commonwealth and across the country. The case involves whether prosecutors may refer to a defendant's pre-arrest silence at trial.

The Fifth Amendment to the United States Constitution and Article I, section 9 of the Pennsylvania Constitution protect all persons from being compelled to be a witness against themselves, commonly known at the right to remain silent.

However, the right is not as straightforward as it appears. Silence can, and has, been used against criminal defendants. The First, Sixth, Seventh and Tenth Federal Circuit Courts of Appeal have held that pre-arrest, pre-Miranda v. Arizona silence is not admissible as substantive evidence of guilt. The Fifth, Ninth, and Eleventh Circuits have gone the other way.

Six state appellate courts have ruled that prosecutors may not use silence to infer guilt and at least three state appellate courts have ruled the opposite.

In February, the U.S. Supreme Court imposed its own silence when it declined to take up the appeal of a Florida man who contended that prosecutors used his pre-arrest silence during police questioning as evidence against him at trial.

The confusion in Pennsylvania stems from a couple of recent Superior Court decisions. In November of 2009 the court decided Commonwealth v. Molina, an Allegheny County case. Molina refused to come to the police station to be interviewed about a missing person. Prosecutors brought up Molina’s refusal talk as evidence of guilt. The court held, “[T]he commonwealth cannot use a non-testifying defendant's pre-arrest silence to support its contention that the defendant is guilty of the crime charged.”

The case heading to the Pennsylvania Supreme Court is Commonwealth v. Adams. Adams challenged the trial court's admission of testimony from a police officer concerning his pre-arrest refusal to speak. He argued it violated his right to remain silent. Although the Superior Court agreed with Molina, the government may not use silence as substantive evidence of guilt, they distinguished Adams from Molina and held that Adams’ constitutional rights were not violated.

In yet another wrinkle, this summer the Superior Court ruled that prosecutors can bring up evidence of a defendant's pre-arrest silence under the “fair response doctrine” even if the defendant did not testify. In Commonwealth v. Fischere, the appellant was questioned about the death of a child in his care. At first he spoke with police and then later refused to talk without a lawyer.

During cross-examination, defense counsel asked a police officer why he didn't ask more probative questions during the initial interview of Fischere. The commonwealth then asked the court for permission to cross-examine Fischere about his pre-arrest silence if he took the witness stand. The trial court permitted the request and the Superior Court agreed.

Commonwealth v. Adams will be scheduled for oral argument.

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Thursday, August 9, 2012

Judge: Condemned inmate can reject governor's reprieve

Death row inmate Gary Haugen won a strange legal battle last week against Oregon Gov. John Kitzhaber. A judge ruled Haugen could reject the governor's reprieve of his execution and move forward in his efforts to die by lethal injection.

In November of last year, Kitzhaber announced he would not allow Haugen's December 2011 execution to go forward nor would he permit any death row inmate to be put to death while he was in office. The governor described the death penalty as morally wrong and unjustly administered, and said he hoped voters would repeal the law. "In my mind," he told the Oregonain, "it is a perversion of justice."

Haugen, a execution volunteer refused to accept Kitzhaber's mercy.  He sued the governor seeking to proceed with his execution. Senior Judge Timothy P. Alexander found, "Because (Haugen) has unequivocally rejected the reprieve, it is therefore ineffective," reported the Oregonion.

Haugen was sentenced to life in prison for murdering the mother of his former girlfriend in 1981. He later murdered a fellow prisoner at Oregon State Penitentiary. A jury sentenced him to death in 2007.

In this odd death penalty challenge, the governor intends to appeal the trial court's ruling.

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Wednesday, August 8, 2012

PA prosecutors want NCAA to share Penn State fine

Prosecutors in Pennsylvania hope to steer some of the $60 million in fines Penn State must pay the NCAA over the Penn State sex-abuse scandal to children's advocacy centers across the state, reported the Associated Press.

The Pennsylvania District Attorneys Association is not seeking a specific amount of money to expand the 21 current advocacy centers that exist across Pennsylvania's 67 counties.

The centers offer a single place for children to tell their stories of abuse to a trained interviewer, while police, therapists and others watch remotely. This prevents children from having to tell their stories repeatedly to various experts. The centers also offer various services or referrals to the victim and family members.

The $60 million fine is part of the NCAA sanctions facing Penn State in the wake of the sex-abuse scandal involving Jerry Sandusky, a former assistant football coach, reported the AP. Sandusky was convicted in June of abusing 10 boys, sometimes on Penn State's campus, from 1994 to 2008.

As Lawrence County District Attorney in 1998 my office expanded and helped fund one of Pennsylvania first Children's Advocacy Centers.  In cooperation with other community stakeholders like Jamison Health System, our office was able to effectively prosecute hundreds of sex offenses with minimal anguish for victims and their families.

Centre County, the home of Penn State University, does not have a center, reported the AP.

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Texas executes man with IQ of 61

The 25th Execution of 2012

Marvin Wilson was executed yesterday in Texas. He was pronounced dead at 6:27 p.m., 14 minutes after his lethal injection began at the state prison in Huntsville.

Wilson's case had garnered a lot of attention because his attorneys had argued that he should have been ineligible for capital punishment because of his low IQ.

In Wilson's appeal to the U.S. Supreme court, his attorneys pointed to a psychological test conducted in 2004 that pegged Wilson's IQ at 61, below the generally accepted minimum competency standard of 70. In Texas, the benchmark for mental retardation is an IQ of about 70 or below. Other states use a threshold IQ of 75 or lower.

In 2002, the U.S. Supreme Court in Atkins v. Virginia banned the execution of the mentally retarded.

According to the Associated Press, the Supreme Court denied his request for a stay of execution less than two hours before his lethal injection began. Lead defense attorney Lee Kovarsky said he was "gravely disappointed and saddened" by the ruling, calling it "outrageous that the state of Texas continues to utilize unscientific guidelines ... to determine which citizens with intellectual disability are exempt from execution."

Wilson was convicted of murdering 21-year-old Jerry Williams in November 1992, several days after police seized 24 grams of cocaine from Wilson's apartment and arrested him. Witnesses testified that Wilson and another man, Andrew Lewis, beat Williams outside of a convenience store in Beaumont, about 80 miles east of Houston. Wilson, who was free on bond, accused Williams of snitching on him about the drugs, they said.

State attorneys say the court left it to states to develop appropriate standards for enforcing the ban and that Texas chose to incorporate a number of factors besides an inmate's IQ, including the inmate's adaptive behavior and functioning.

Wilson was the seventh person executed by lethal injection in Texas this year. At least nine other prisoners in the nation's most active death penalty state have execution dates in the coming months, including one later this month.

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Tuesday, August 7, 2012

The Statute of Limitations: Justice for All

The Pennsylvania Law Weekly
August 7, 2012

For more than 16 months, Pennsylvania legislators have been pushing for a law that would provide victims of childhood sexual abuse more time to file civil suits or criminal complaints against their alleged abusers. The proposal would actually eliminate the statute of limitations for criminal prosecutions and extend the statute of limitations for civil lawsuits an additional 20 years.

Recently, with the national spotlight on Pennsylvania — between Jerry Sandusky and the Penn State sex-abuse scandal and Monsignor William J. Lynn and the Catholic Archdiocese of Philadelphia child sex-abuse cover-up — the stalled legislation moved forward.

The new legislation is sure to pass. The cloud of sexual exploitation of children hovering over the commonwealth recently ushered in the use of expert witnesses for the prosecution of sexual assault. House Bill 1264 passed 197-0 in the House and 48-0 in the Senate. Pennsylvania was the last state to permit the use of experts in sex-abuse cases.

Under the proposed statute of limitations legislation, a defendant could face criminal prosecution based on allegations of rape that occurred 50, 60 or even 70 years ago.

Young victims of sex abuse are often reluctant to come forward. No one would advocate that a sexual predator should escape responsibility by way of a fortuitous passage of time. A victim's conduct after an assault often conflicts with what one would expect. Jerome Elam, a victim of child sexual abuse, wrote in The Washington Times, "As victims of childhood molestation boys face significant and unique barriers in reporting what they intuitively know is inappropriate behavior." (See "An end to silence: Child sex abuse victims speaking out," Nov. 27, 2011.)

Statistically, one in eight males is a victim of abuse and a child has to tell seven adults of suspected abuse before he or she is taken seriously. Elam suggested that rates of suicide among male victims of childhood sexual abuse are 14 times higher than the norm and child victims are 38 times more likely to die from a drug overdose.

With that as a backdrop, it is important to acknowledge that the statute of limitations plays an important and long-standing role in criminal and civil jurisprudence. The statute of limitations 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.

The long-delayed legislation was consolidated by House Judiciary Chairman Ron Marsico and finally put to a vote. It passed unanimously.

House Bill 2488 abolishes the age limit for reporting child sexual abuse. Amended versions of HB 832 (to eliminate the statute of limitations for criminal and civil sex-abuse cases) and HB 878 (creates a special two-year window for filing civil actions for child sex abuse where the ability to seek redress has expired) also recently made it out of the House Judiciary Committee. As amended, the three bills would eliminate the criminal statute of limitations for child sex-abuse cases and increase the time frame for pursuing a civil claim from age 30 to age 50.

Marsico 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 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 Philadelphia Inquirer.

Under current law, victims have until age 30 to sue alleged abusers and until age 50 to pursue criminal charges. The current law took effect on Jan. 28, 2007. That was a significant change within only the last 10 years. Prior to 2002, the statute ran for only five years after the victim's 18th birthday. In 2002, the statute of limitation was extended to 12 years.

What are the concerns with amending the statute of limitations?

Daniel M. Filler, a professor at Drexel University's Earle Mack School of Law, told the Allentown Morning Call, "Increasing or eliminating the statute of limitations might lead to more justice, but it also might increase more injustice. The question is how much injustice are we willing to tolerate to get more justice."

Filler believes that a line must be drawn. "The Pennsylvania legislature made a tough call and said, for the purposes of reporting child sex abuse, you can report it up until age 30. This recognizes that it's tough to report — but by 30 many people are out from under the thumb of an authority figure."

Cumberland County District Attorney David Freed, the Republican candidate for attorney general, said in a widely published op-ed in support of abolishing the statute of limitations for criminal prosecutions, "While the legal procedure for substantiating a crime that happened 10, 20 or even 30 years prior can be difficult, this should not preclude or deny a victim from coming forward to seek justice."

Filler suggested that "a statute of limitations is needed. It's the only way a defendant has a chance to disprove such allegations. It's impossible to find an alibi so long after the event is said to have occurred. The older the memories are, the fear is that it's more brittle and more likely a person is to create misremembrances."

Former Lackawanna County prosecutor and Democratic candidate for attorney general Kathleen Kane also supports abolishing the statute of limitations for criminal prosecutions: "There should be no statute of limitations against prosecuting sexual predators. I believe law enforcement must be provided the legal means to arrest and prosecute sexual offenders, regardless if the crime occurred a week ago or decades ago," Kane said in a statement.

Prosecuting sexual assault is a worthy goal. Holding those who harm others, particularly children, liable for their heinous conduct should be the goal of every society. However, as Filler suggested, how much injustice are we willing to tolerate to get more justice?

Accusations are not always sincere. How does a person accused of abusing a child in 2012 defend against that allegation in 2052? Can an accused be reasonably afforded justice in defending alleged abuse so long ago? These questions seem worthy of examination while the legislature debates amending or abolishing the statute of limitations.

Monday, August 6, 2012

Loughner plea not a sure thing

Jared Loughner intends to enter a guilty plea on Tuesday. Loughner killed six people and injured 13 others last year during shooting rampage in Tucson, Arizona. His victims included a nine-year-old girl, a former federal judge and Congresswoman Gabriella Giffords who was holding a constituent event in a supermarket parking lot.

The plea is intended to permit Loughner to avoid the death penalty and is far from a sure thing. The guilty plea must be approved by Judge Larry A. Burns, who is presiding over the case in Federal District Court in Tucson.

Under federal court rules, the judge must be satisfied that a guilty plea is "knowing and voluntary." That will require the judge to ask Loughner a series of questions in open court to make certain that he has the capacity to understand what a guilty plea means, including the fact that he gives up all his appeal rights, reported NBC News.

Loughner was at one time deemed incompetent to stand trial. Psychiatrists who had interviewed Loughner at the time said he had random and disorganized thoughts, offered nonsensical answers to questions and appeared to suffer from schizophrenia.

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Sunday, August 5, 2012

What about juvenile lifers?

The Youngstown Vindicator
August 5, 2012

In late June, the U.S. Supreme Court ruled that a mandatory sentence of life in prison without the possibility of parole imposed upon a juvenile violated the Eighth Amendment ban against “cruel and unusual punishment.”

The decision was overshadowed by the court’s controversial ruling to uphold the Affordable Care Act. In Miller v. Alabama the Supreme Court did not outlaw life sentences for juveniles. Prosecutors in Ohio, Pennsylvania and across the country can still pursue life sentences for juvenile killers. The court ruled that state lawmakers cannot force judges to impose life sentences on juveniles.

Pennsylvania, where there are about 480 inmates serving life without parole for killings committed as juveniles, is trying to figure out how to proceed. Ohio has just two juvenile lifers. “Obviously there’s some urgency to us to resolve this issue,” Sen. Stewart Greenleaf, chairman of the Senate Judiciary Committee, told the Pittsburgh Post-Gazette.


Two recent appellate court cases — one before the state Supreme Court and the other a state Superior Court decision—promise to provide guidance at some point.

Both cases had been held in abeyance as the Pennsylvania courts waited on the U.S. Supreme Court’s decision in Miller.

The state Supreme Court now has asked the prosecution and defense in Commonwealth vs. Batts to file supplemental briefs recommending “the appropriate remedy” and “what relief, if any” the court should consider for juvenile lifers.

In a separate decision, the Superior Court vacated two life without parole sentences in Commonwealth vs. Knox and remanded the cases to the trial court “for the limited purpose of re-sentencing.”

This week, attorneys in York County, Pennsylvania asked a judge to vacate the life without parole sentence of a 15-year-old convicted of second degree murder and schedule a new sentencing hearing.

“It’s a mess,” Assistant district attorney Lishani Sunday told the York Daily Record. She said the U.S. Supreme Court, the Pennsylvania appellate courts and the state legislature have failed to provide district attorneys with any guidance on what sentence former juvenile lifers should receive.

While leaving the possibility of life in prison without parole on the table, the high court mandated that judges consider a number of factors, including the defendant’s background, blameworthiness, amenability to rehabilitation and maturity, before imposing sentence.

With more “juvenile” lifers than any other state, the Pennsylvania legislature recently conducted a hearing to examine the options for juvenile lifers. Those testifying offered a number of options.

Bifurcated hearing

Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing, suggested that the legislature create a bifurcated sentencing hearing. “A judge or jury could consider all relevant factors before deciding a sentence from choices defined in the statute.” He also suggested excluding life without parole for offenders under a certain age.

Lourdes Rosado, an attorney from the Juvenile Law Center, suggested the legislature craft a sentencing statute that would cap juvenile sentences for first degree murder at 40 years and make an offender eligible for parole after 20 years. For second degree murder she supports a cap at 20 years and parole eligibility at 10 years. Currently second degree murder is punishable by life in prison without parole.

Parole eligibility

The Pennsylvania District Attorneys Association, supported by the Pennsylvania Office of Attorney General, suggested that juveniles convicted of first or second degree murder not be eligible for parole until age 60. Anything less would be untenable.

“Any mandatory minimum for first or second degree murder ... set at 20 years or lower could lead to [an] absurd result,” testified Lancaster County District Attorney Craig Stedman. He was alluding to a murder conviction for a juvenile resulting in less time than a conviction for possessing child pornography or shooting at, but not killing, a police officer.

Finally, the Pennsylvania Association of Criminal Defense Lawyers suggested that no juvenile under the age of 15 should be subject to life in prison without parole. For those 15-years-old or older, “A term of years such as that imposed for third degree murder ... should be included in the statutory scheme.”

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Saturday, August 4, 2012

Louisiana churns out more than 500 new laws

Louisiana has added more than 500 new laws to the books during the most recent legislative session, according to The Advocate.  Some of the legislation seems out-of-step with other states, others seem like overkill and others down right ridiculous.

On piece of criminal legislation is the product of a sensational criminal prosecution that played out on television.  The new law subjects parents or guardians to up to 50 years in prison for failing to report the disappearance of a child who later is found dead. The new law stems from Florida prosecutors’ failure to convict Casey Anthony of murder in her daughter’s death.

Like other states Louisiana enacted a law for those rare instances where a parent kills a child, hides the body and is later acquitted of murder.  I'm sure that comes up a lot in Baton Rouge.

The legislature also makes the killing of a taxicab driver punishable by the death penalty, regardless of whether robbery can be tied to the crime.  Cab drivers in Louisiana are right up there with police officers, pregnant woman and public officials.

One new law bans abortions 20 weeks after fertilization, except in limited medical cases where the mother’s life is in danger.  Certainly out-of-step a significant majority of other states.  Louisiana didn't stop with crime and abortion.

The legislature took on the heady issue of outlawing the sale of dogs and cats along highways and at public playgrounds, flea markets and retail parking lots.  Then there is the new law that allows school systems to punish parents who refuse to participate in a parent-teacher conference deemed necessary by a teacher, that is going to be a game changer in Louisiana.

The Louisiana legislature should had taken the summers off.

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Friday, August 3, 2012

The Cautionary Instruction: One in 43 children has a parent incarcerated

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

Last week, lawmakers on the House Democratic Policy Committee conducted a public hearing at the University of Pittsburgh to examine the plight of children with incarcerated parents.

In 2009, the House of Representatives passed Resolution 203 which required the Joint State Government Commission to complete a study on the effects of parental incarceration on children. The final report was issued in December 2011.

An estimated 810,000 inmates of the more than 1.5 million held in the nation's prisons in 2007 were parents of minor children, according to a report by the Justice Department's Bureau of Justice Statistics. One in 43 American children has a parent in prison.

The number of inmates who are parents has increased by 79 percent since 1991. The population of parents is following a trend similar to that of all incarcerated individuals. In 2007, 1.7 million minor children had a parent in prison, an 82 percent increase since 1991.  

Black and Hispanic children are more likely than white children to have a parent in prison. Among minor children in the United States, 6.7 percent of black children, 2.4 percent of Hispanic children, and 0.9 percent of white children have a parent in prison.

The percentage of women in prison is still significantly lower than men; however, the rate of growth of female inmates is much higher than men. Many of these women are mothers, and two-thirds of those women had been their children’s primary caregiver prior to being incarcerated.

Among fathers in state and federal prisons, more than 4 in 10 are black, about 3 in 10 are white, and about 2 in 10 are Hispanic. Among mothers, 48 percent are white, 28 percent are black, and 17 percent are Hispanic.

Parental incarceration can create a wide range of problems for children. Those problems include economic distress, anger, depression, shame and guilt. Children of incarcerated parents often suffer in the classroom as well.

The most profound effect, according to the Joint State Government Commission Report, may be the loss of a child’s sense of stability and safety. “The parent is usually a staple of those for the child, so when that pillar of stability is removed, the child may feel his or her whole world has fallen apart; the trauma of abandonment and insecurity may last for a very long time.”

The report makes a number of recommendations that address the arrest of parents, the judicial proceedings, corrections, re-entry and community supervision. The report also addressed the need to “Develop and expand community-based resources to help parents and other caregivers address children’s needs when their parents are arrested and incarcerated.” These resources would include keeping the children informed, providing emergency assistance, counseling and screening of caregivers.

Rep. Jake Wheatley (D-Allegheny) who co-chaired the hearing said in a press release, "Children of incarcerated parents are innocent victims of the situation, and we must do all we can to help them survive and ultimately thrive."

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Thursday, August 2, 2012

Murder and the nation's income inequality

Tara Culp-Ressler of Think Progress recently wrote about an interesting article examining the cause of Homicide in Scientific American.  The article suggests that homicides in the U.S. stem from the nation’s high rates of income inequality.

The article's author Eric Michael Johnson cites a study conducted by Harvard’s Ichiro Kawachi that analyzed the homicide rates in each state and the District of Columbia. Kawachi found that as the gap between the rich and the poor rose, the rate of homicide rose along with it:

The results were unambiguous: when income inequality was higher, so was the rate of homicide. Income inequality alone explained 74% of the variance in murder rates and half of the aggravated assaults. However, social capital had an even stronger association and, by itself, accounted for 82% of homicides and 61% of assaults. Other factors such as unemployment, poverty, or number of high school graduates were only weakly associated and alcohol consumption had no connection to violent crime at all. A World Bank sponsored study subsequently confirmed these results on income inequality concluding that, worldwide, homicide and the unequal distribution of resources are inextricably tied.

Income inequality in the U.S. has been rapidly rising since 1979. And an uptick in violent crimes certainly isn’t the only documented negative effect of the widening gulf between the rich and the poor. Studies have already shown that economic disparity has caused a problematic education gap, put an outsized burden on the Social Security program, and stifled the political power of a downtrodden middle class.

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Wednesday, August 1, 2012

Mass shootings and the "culture of honor"

Jeff Kaas a former reporter for the Rocky Mountain News and author of Columbine: A True Crime Story wrote a recent op-ed for the Washington Post exploring, "Five Myths about mass shootings."

Kaas dispels the idea that shooters are insane.  Only about 17 percent of mass shooters had mental health problems, but interestingly 78 percent were suicidal.  Also dispelled is the myth that parents or family should see it coming.  No necessarily.  Eighty-one percent of shooters tell someone of their plans but more than 9 times out of 10 its a friend or peer.

The issue, "It can happen anywhere," is most compelling.  Kaas wrote:

"[M]ass shootings at schools tend to occur in suburbs and small towns, where high school is the main driver of social status. Students who feel like outsiders have few, if any, other places to turn for friends and self-esteem.

School shootings also tend to occur in the South and the West, where researchers have identified a “culture of honor,” in which people place a high value on their reputation and, in some cases, are willing to fiercely defend it to the point of violence. This culture comes from long-standing regional traditions that combine chivalry with the need to defend one’s property in places where law enforcement was sparse.

It has been translated to the schoolyard by shooters who retaliate with violence when they feel they have lost their status. A 2009 study by researchers at the University of Oklahoma found that states with a culture of honor had more than twice as many school shootings per capita as other states. Mapping just some locales shows the pattern: Bethel, Alaska; Springfield, Ore.; Littleton, Colo.; Pearl, Miss.; and West Paducah.

Similar issues of vengeance for a wrong, or a perceived wrong, committed by individuals or society are also typical with adult shooters."

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