Punishment of former district attorney opens the door for misconduct investigations

The dramatic, high-profile guilty plea and incarceration of former Williamson County, Texas district attorney and district judge Ken Anderson has raised the possibility of more prosecutorial misconduct investigations in Texas and around the country.

Anderson was penalized after a court of inquiry, a unique Texas proceeding that allows a judge to determine whether prosecutors broke the law and, if so, to charge them, reported the Los Angeles Times.

Although it has been on the books in Texas since 1965, the court of inquiry was typically used to hold elected officials accountable. But the Morton case may change that.

"I am guardedly optimistic that we'll see more courts of inquiry," said Jeff Blackburn, founder of the Innocence Project of Texas, which helped free Morton.

The stakes are high in Texas. The state has executed 508 prisoners since lethal injection began in 1982, including 16 this year, according to the Texas Department of Criminal Justice. That's more than twice as many executions as the next two states in the national ranking, according to the Death Penalty Information Center.

Prosecutorial misconduct has become a concern to advocates for wrongfully convicted people nationwide. Only about a third of the nation's 1,269 exonerations have been linked to DNA, according to the National Registry of Exonerations, which advocates consider to be the most complete figures.

The remainder were attributed to a variety of factors, including ineffective assistance of counsel, faulty eyewitness identification, coerced confessions — and prosecutorial misconduct.

An Innocence Project study last year found 91 cases of prosecutorial errors in Texas from 2004 to 2008; in 19 cases, courts found the errors "harmful" and reversed the convictions.

In response, the Texas District and County Attorneys Assn. issued a report stating that all but six of the 91 cases involved "minor trial error" that "appellate courts deemed harmless" — not prosecutorial misconduct.

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Drug testing for welfare recipients costly and ineffective

Missouri became the most recent state this year to install drug testing for welfare recipients, reported the Kansas City Star. After eight months and 636 drug tests, the program turned up 20 people who tested positive and about 200 who refused to comply. Roughly 32,000 people in the state applied for assistance since testing began.

The program’s price: Nearly $500,000.

“I think it’s just astronomical,” said Rep. Stacey Newman, D-St. Louis County, Mo. “It’s a horrible waste of state resources.”

From March 1, when the program started, through October, the state received 32,511 welfare applications. Of those, 636 were referred for drug testing. Twenty tested positive, 194 refused to comply and 208 tested negative. Results were still not known for 214 people.

Other states that have been testing welfare recipients have seen results similar to Missouri’s program.

•  Out of 4,086 drugs tests in Florida from July through October 2011, 108 tested positive. Court rulings stopped the program on the grounds it violated welfare recipients’ constitutional rights by requiring them to undergo testing regardless of whether they were suspected of using drugs.
Florida spent $115,000 on the testing and was forced to reimburse welfare recipients who had lost their benefits $600,000.

•  Eighty-three out of 1,890 people screened for drugs in Oklahoma tested positive from November 2012 through May 2013, the most recent data available from the state. The state spent about $83,000 on testing.

•  Only 14 people have tested positive in Utah out of 6,007 who have been screened for drugs from August 2012 through the end of October. The state has spent roughly $32,000 on the program.

Read more here: http://www.kansas.com/2013/12/27/3198135/kansas-follows-missouris-path.html#storylink=cpy

Two states this year – North Dakota and Virginia – rejected bills that would have mandated drug testing for welfare recipients. Those measures would have cost between $400,000 and $500,000.

Last August, Republican North Carolina Gov. Pat McCrory vetoed a drug testing bill, saying it was too costly and ineffective. Lawmakers overrode his decision, but McCrory vowed not to implement the law until legislators appropriated enough money to pay for the program.

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Pennsylvania man who shoots robber in the back half-hour after robbery charged with murder

A Franklin County man, Mickle Joe Shaffer, was charged with homicide after pursuing and shooting a stranger who entered Shaffer's home on Christmas morning to commit a robbery with an assault rifle, reported The York Daily Record.

The shooting comes more than two years after Pennsylvania adopted the "stand-your-ground" or "Castle Doctrine" law. Act 10 of 2011 allows a person to use deadly force in self-defense against an intruder or attacker. It states that people have "a right to remain unmolested within their homes or vehicles" and should not be required "to needlessly retreat in the face of intrusion or attack outside" their homes or vehicles.

The law is specific in its protection of a person who stands his or her ground in a building or vehicle and outside a building or vehicle.

According to the state police account, Shaffer went after the armed robber Janorris Hughes once Hughes ran away from the house. Shaffer caught up with Hughes and shot him when Hughes turned to run.

The elements are present for a stand-your-ground defense, but the timing is off. Shaffer's reported actions conflict with the legal standard:

 

• Hughes either had to be "in the process" of unlawfully and forcefully entering the house or inside the house after unlawfully and forcefully entering it. According to the police account, a stranger (Hughes) entered Shaffer's home with an assault rifle and ordered the people to a bedroom. Terry "Dread" L. Fulton, 36, fought with Hughes. Both Hughes and Fulton ran from the house.

• Outside the house, Shaffer had the right to use deadly force under Act 10 if he believed that it was "immediately necessary" to protect himself against death or serious bodily injury from an attacker. According to authorities, Shaffer shot Hughes in the back about a half-hour after the attempted robbery.

• Act 10 also requires that a person using deadly force outside a building or vehicle actually see an attacker displaying or using a firearm or a replica of a firearm. Police did not say whether Hughes was armed when he was shot, but mentioned only an assault rifle in their court document.

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GateHouse: Pennsylvania demands results from prison vendor

Matthew T. Mangino

GateHouse News Service

December 27, 2013

 

The Pennsylvania Department of Corrections has entered into a first-of-its-kind incentive-based contract with a private vendor for providing mental health services in the state’s 26 correctional institutions.

 

The contract comes in the wake of an alarming federal investigation and the ever increasing demands on correctional facilities to treat inmates with mental illness.

 

Last summer, the U.S. Department of Justice (DOJ) announced the results of an investigation into the use of solitary confinement on prisoners with serious mental illness at a state correctional facility in Cresson, Pennsylvania. 

 

The DOJ found that Cresson’s use of long-term and extreme forms of solitary confinement on prisoners with serious mental illness, many of whom also had intellectual disabilities, violated the Eighth Amendment ban against cruel and unusual punishment and the Americans with Disabilities Act.

 

A report by the Treatment Advocacy Center and the National Sheriffs’ Association, More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States, found that about 16 percent of inmates in jails and prisons nationwide have a serious mental illness. In Pennsylvania, 21 percent of state prison inmates receive mental health services, which equates to more than 10,000 individuals.

 

According to National Public Radio, more than 350,000 offenders with mental illness are confined in America’s prisons and jails. More Americans receive mental health treatment behind bars than in hospitals or treatment centers.

 

Once in prison, mentally ill inmates have a difficult time getting out. Prison rules are often violated by offenders who believe cellmates, guards and even family at home are out to harm them.

 

The mentally ill are often targeted by fellow inmates who are aggravated by the strange manifestations brought on by their illness. Mentally diseased inmates may have a problem concentrating in programming and therefore fail to complete required treatment programs.

 

Prison medical systems were not designed, nor equipped, to provide quality mental health services to prisoners in need. Seriously mentally ill inmates often face overworked or undermanned staff overwhelmed with the need to evaluate and implement treatment plans for an ever growing population of ill inmates. Often the result is a failure to reintegrate inmates back into the community.

 

Pennsylvania has an ambitious plan to deal with mental health treatment behind prison walls.  Instead of just paying for services, Pennsylvania is demanding services that work.

 

"No longer are we issuing contracts for just a service,'' Corrections Secretary John Wetzel said. “From this point on, our contracts will focus on results.  The new contract includes performance measures that will ensure taxpayers are getting what they pay for, including inmates who leave our system better than when they entered it.''

 

Pennsylvania has contracted with MHM Services of Virginia who will receive financial incentives to reduce the number of misconducts for mentally ill offenders; reduce the number of inmates recommitted to prison mental health units; and lower the number of recommitments to prison residential treatment units. MHM Services will also face sanctions for failure to achieve designated objectives.

 

In 2011, the Association of State Correctional Administrators surveyed corrections departments about their use of performance incentives.  Out of 35 departments that responded to the survey, just three reported offering "incentives for positive contract performance" in any of their contracts.

 

"Performance-based contracting is an innovative and potentially powerful strategy to improve results in states and counties across the country," said Adam Gelb, director of the Public Safety Performance Project at The Pew Charitable Trusts, which helped develop the performance incentives.

 

Success will be determined by the bottom line.  Corrections administrators across the country will be keeping an eye on Pennsylvania’s plan.  If the contract boosts public safety and saves taxpayer dollars, incentive-based mental health treatment will be on every governor’s wish list.

 

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Cautionary Instruction: Investment in education saves money and victims

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
December 27, 2013

America could save as much as $18.5 billion in annual crime costs if the high school male graduation rate increased by only five percentage points, according to a new report from the Alliance for Excellent Education.

“The nation needs to focus dollars and efforts on reforming school climates to keep students engaged in ways that will lead them toward college and a career and away from crime and prison,” said Bob Wise, president of the Alliance for Excellent Education and former governor of West Virginia. “The school-to-prison pipeline starts and ends with schools.”

There is an indirect correlation between educational attainment and arrest and incarceration rates, particularly among males, the report found. According to the most recent data from the U.S. Department of Justice, Bureau of Justice Statistics, 56 percent of federal inmates, 67 percent of inmates in state prisons, and 69 percent of inmates in local jails did not complete high school. Additionally, the number of incarcerated individuals without a high school diploma is increasing over time.

The report found that increasing the male graduation rate would decrease crime nationwide. According to the report, annual incidences of assault would decrease by nearly 60,000, larceny by more than 37,000, motor vehicle theft by more than 31,000 and burglaries by more than 17,000.

The increased graduation rate would also prevent nearly 1,300 murders, more than 3,800 occurrences of rape and more than 1,500 robberies, according to the report.

In Pennsylvania, the potential savings from a five percent increase in the male high school graduation rate is enormous. The report estimates $737 million in savings in crime related costs and an additional $48 million is earnings and tax revenue from individuals who are employed and not incarcerated.

There is more to the crime and education connection than just course work and passing grades. The combination of largely unnoticed actions undertaken by individual schools affects education climates for millions of students in thousands of schools across the country. These school climates, in turn, often profoundly affect student performance.

Nationwide, many high schools are using zero-tolerance policies that often suspend, criminalize, and incarcerate youth. A recent study by The Civil Rights Project estimated that one in every nine secondary school students had been suspended in the 2009–10 academic year. Students who are suspended once in the ninth grade are found to be twice as likely to drop out as those students not suspended.

An investment in education is an investment in crime prevention. The potential to save money, generate revenue and minimize the anguish that comes with victimization is too important to ignore.

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George Will: Sledgehammer Justice

Thousands of prisoners are serving life without parole for nonviolent crimes. Judge John Gleeson, of the United States District Court for the Eastern District of New York, who is neither naive nor sentimental (as a prosecutor, he sent mobster John Gotti to die in a supermax prison), knows that most defendants who plead guilty are guilty. He is, however, dismayed at the use of the threat of mandatory minimums as "sledgehammers" to extort guilty pleas, effectively vitiating the right to a trial.

Ninety-seven percent of federal convictions are without trials, sparing the government the burden of proving guilt beyond a reasonable doubt. Mere probable cause, and the meager presentation required for a grand jury indictment, suffices. "Judging is removed," Gleeson says, "prosecutors become sentencers." And when threats of draconian sentences compel guilty pleas, "some innocent people will plead guilty."

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President Kennedy's Christmas Message of Peace

Every year, the President of the United States delivers a Christmas message. I selected an excerpt from one of my favorite Christmas messages--Merry Christmas.

President John F. Kennedy, 1962

With the Cuban Missile Crisis fresh in everyone's mind, President Kennedy reminds Americans of the gift of peace:

“It is the day when we remind ourselves that man can and must live in peace with his neighbors and that it is the peacemakers who are truly blessed. In this year of 1962 we greet each other at Christmas with some special sense of the blessings of peace. This has been a year of peril when the peace has been sorely threatened. But it has been a year when peril was faced and when reason ruled. As a result, we may talk, at this Christmas, just a little bit more confidently of peace on earth, good will to men. As a result, the hopes of the American people are perhaps a little higher. We have much yet to do. We still need to ask that God bless everyone.”

Massachusetts' governor considers blanket commutations to ease prison overcrowding

Massachusetts' Governor Deval Patrick said he would be "very interested" in commuting the sentences of a segment of the inmate population if it would relieve overcrowding in prisons, reported the Lowell Sun. "I have a lot of concerns about the impact on our criminal-justice system, and on the prisons in particular, of non-violent drug offenders and the mandatory minimum around that. We've moved some legislation, tried to make some changes there, and if there was a way to relieve the crowding in the prisons by commuting a class of those cases, I'd be very interested in doing it," Patrick said.

The prison system is almost uniformly crowded beyond the design capacity of the facilities. The two maximum-security prisons are overcrowded with an average occupancy rate of 121 percent, as of Dec. 16, according to the Department of Correction.

The 12 medium security prisons are an average 145 percent occupied, well above the design capacity, with only two -- the medium-security portion of Cedar Junction in Walpole and the Shattuck Hospital Correctional Unit in Jamaica Plain -- under capacity. Houses of correction and jails are occupied at an average of 128 percent of capacity, with Essex County experiencing the greatest overcrowding.

Patrick's proposal comes as a surprise.  He has neither commuted nor pardoned any offenders in his seven years in office.

The last commutation in Massachusetts was granted to Joseph Salvati, at the recommendation of Gov. Bill Weld. In February 1997, the eight-member Governor's Council voted unanimously to commute the first-degree-murder life sentence of Salvati, whose conviction was later overturned when a judge concluded the FBI hid exculpatory evidence.

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The Crime Report selects 'Person of the Year'

Ed Davis, who led the Boston Police Department during the April 15 Boston Marathon bombings and steered one of the biggest manhunts ever mounted on U.S. soil, has been selected by The Crime Report readers as the criminal justice “Person of the Year.”

Attorney General Eric Holder earned the next largest number of votes from our readers, who noted his leadership of justice reforms ranging from alternatives to incarceration and the reduction of stiff penalties for low-level federal drug offenses—and his forthright opposition to “Stand Your Ground” state legislation.

TCR columnist Matthew Mangino praised Holder’s “strong stance against stand-your-ground laws,” noting that his leadership on the issue has added more force to criticism by civil liberties and gun control advocates of state legislative actions that “senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods.”

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The state of the death penalty 2013

Only nine of 32 state with the death penalty carried out execution in 2013, according to a report by the Death Penalty Information Center. 

The number of execution also declined in 2013.  There were 39 execution this year compared with 43 in 2012.  However, the number of scheduled executions that were stayed in 2013 almost matched the number carried out.  Thirty-three executions were scheduled and never carried out.

The death penalty is rarely imposed in this country and executions are even more rare.  If it were not for a few states death sentences and executions would be nearly cut in half.

Texas and Florida accounted for 23 of 39 execution and California and Florida accounted for 39 of 80 death sentences imposed nationwide.  In fact, traditional law and order states like South Carolina, Virginia, Tennessee and Louisiana did not have a single death sentence in 2013.

Still six in ten Americans support the death penalty according to Gallup.

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Oklahoma carries-out last execution of 2013

The 39th Execution of 2013

Johnny Dale Black was executed on December 17, 2013 in Oklahoma.  He was pronounced dead at 6:08 p.m. at the Oklahoma State Penitentiary in McAlester. He was the second inmate executed by the state in the past two weeks and the sixth put to death in Oklahoma this year.

Black was convicted of first-degree murder for fatally stabbing Bill Pogue, 54, during a roadside attack near the southern Oklahoma town that left Pogue with 11 stab wounds, broken ribs and punctured lungs. Pogue's son-in-law, Rick Lewis, was also attacked. Lewis suffered more than a dozen wounds but later recovered.

At a hearing before the state Pardon and Parole Board last month, Black begged forgiveness for his actions. But he insisted that he was merely trying to defend his brother, Jimmy Black, from Pogue. The brothers had approached Pogue and Lewis after mistaking their car for that of someone else they had been searching for.

"I deserve to be punished for what I did, but not for defending my family," Johnny Black told the board in November.

About 15 minutes before the execution, fellow death row inmates began banging the doors of their cells in a tribute to the condemned man.

Witnesses to the execution included Black's mother, his attorney and a spiritual adviser. Four members of the victim's family also attended.

Before the lethal drugs were administered, Black, who was lying on a gurney with needles attached to both arms, made eye contact with his mother, and both shook their heads affirmatively.

"This isn't accomplishing anything," Black said. "It's just another death, another family destroyed." Black did not apologize to the victim's family or acknowledge the crime he was convicted of.

Looking at his mother, Black said, "I love everybody. I love you. You can count on that, Momma."
As the lethal drugs were administered, Black took several deep breaths as his mother wept.

The victim's family did not make a statement after the execution. But Oklahoma Attorney General Scott Pruitt said Black was sentenced to death by a jury of his peers "for the murder of an innocent grandfather and upstanding member of the community."

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GateHouse: From classrooms to courtrooms, the school-to-prison pipeline

Matthew T. Mangino

GateHouse News Service

December 19, 2013

 

There was a time when disruptive students were sent to see the principal. Today in some school districts, the disruptive student is handcuffed and ushered off to court. The school-to-prison pipeline is overflowing with students.

 

Melodee Hanes, of the U.S. Justice Department’s Office of Juvenile Justice and Delinquency Prevention, describes the school-to-prison pipeline as “the pervasive use of court referrals as a means of discipling kids in school."

 

According to the Washington Post, more than 3 million students each year are suspended or expelled from school across the United States. Federal data, though limited, show that more than 240,000 students were referred to law enforcement.

 

The school-to-prison pipeline is being fueled by “zero-tolerance” policies that accelerate the involvement of the criminal justice system in routine school disciplinary practices. The involvement of law enforcement in traditional matters of school discipline has soared as school districts across the country expanded the use of armed police officers in schools.

 

The results, at times, have been ridiculous. Recently, the parents of a 10-year-old Pennsylvania boy, who was suspended after pretending to shoot an imaginary bow and arrow, are mulling legal action against the school district to erase the incident from his school record. The fifth-grader was disciplined under the school district’s weapons policy.

 

Last year, federal civil rights lawyers filed suit against a Meridian County School District in Mississippi for operating what the government described as a school-to-prison pipeline in which students were denied basic constitutional rights, sent to court and incarcerated for minor school infractions, reported CNN.

 

Children were handcuffed and arrested in school; often detained without a hearing for 48 hours; made admissions without being advised of their rights; and were not provided with legal counsel for hearings.

 

The problem goes beyond Mississippi. Wansley Walters, secretary of the Florida Department of Juvenile Justice told the Orlando Sentinel earlier this year, "The vast majority of children being arrested in schools are not committing criminal acts."

 

Sixty-seven percent of the arrests last year in Florida were for misdemeanors such as disorderly conduct — a catch-all that has been used when children are unruly or disruptive. Fewer than 5 percent of students faced weapons charges.

 

Some Florida school districts are beginning to question the efficacy of zero-tolerance policies. Under a new program adopted by the Broward County School District, non-violent misdemeanors — even those that involve alcohol, marijuana or drug paraphernalia — will now be handled by the schools instead of the police.

 

Broward County is far from the only school district re-evaluating its zero-tolerance policies. According to National Public Radio, officials in Clayton County, Ga., Wichita, Kan., Columbus, Ohio, and Birmingham, Ala., are just a few of the school districts reviewing zero-tolerance policies.

 

Policymakers have also taken notice. Last December, the U.S. Senate Judiciary Committee, Subcommittee on Constitution, Civil Rights and Human Rights conducted the first ever hearing on the school-to-prison pipeline.

 

“For many young people schools are increasingly a gateway to the criminal justice system,” Illinois Sen. Dick Durbin, who chairs the Judiciary Committee, said in a statement before the committee.

 

“[T]his school-to-prison pipeline has moved scores of young people from classrooms to courtrooms.”

Michael Nash, the presiding judge of juvenile court in Los Angeles and the immediate past president of the National Council of Juvenile and Family Court Judges, told the New York Times, “You have to differentiate the security issue and the discipline issue … once the kids get involved in the court system, it’s a slippery slope downhill.”

 

Unfortunately, more and more young people are sliding down that slippery slope, and the consequences are dire for the student and costly for society as well.

 

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Mangino on WKBN-TV

The Pennsylvania Supreme Court struck down portion of Act 13 that allowed drilling companies to override local zoning ordinances.  Watch my interview on the decision on WKBN-TV in Youngstown, Ohio.

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The Cautionary Instruction: School rampages, looking for answers

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
December 20, 20103

Recently, I had an opportunity to address a group of school superintendents. These men and women have an awesome responsibility. They are leaders charged with educating and protecting our children. The latter responsibility has been complicated by the random, senseless, violent rampages that have plagued school districts across the country. Educators, law enforcement and parents are looking for answers.

For school children educated in a post-Columbine America, the idea that they must prepare for bad people who open fire in classrooms, school libraries and playgrounds has become routine.
As the tragedies of Columbine are repeated at Red Lake; and Chardon; and Sandy Hook the response to these catastrophic events by police and educators has evolved.

The U.S. Department of Education has proposed a new plan for teachers and students to deal with an active shooter—“Run, Hide or Fight.”

Studies of past school shootings show that students and staff who took action survived more than those who went into traditional lockdown and did nothing.

In the 1999 Columbine High School shootings, most of the victims were shot in the library, where a teacher told students to get under desks and keep silent. Another dozen people were injured there.

In the 2007 shootings at Virginia Tech, 30 people died in classrooms on one floor. Of those, 28 were in classrooms where students and instructors did not actively resist or try to escape the gunman. Other students and instructors saved lives by barricading doors or jumping out of windows.

In the December 2012 shootings at Sandy Hook Elementary School, survivors included students whose teachers barricaded doors, including the use of a filing cabinet, and kids who ran from classrooms, though some students were shot as they fled.

Run, hide or fight provides three options for dealing with an active shooter—run away from the shooter, seek a secure place where you can hide or "as a last resort when confronted by the shooter, adults in immediate danger should consider trying to disrupt or incapacitate the shooter by using aggressive force and items in their environment, such as fire extinguishers and chairs."

Local school district and law enforcement officials say fighting back empowers faculty, who fear they will be helpless if a shooter attacks their classroom.

“Why would you just lie there, and just wait to – and I hate to use these words, because it’s not sensitive – and wait to be killed when there are so many other options out there?” said Sgt. Nancy Wilkey of the Orange County Sheriff’s Department’s juvenile services bureau. “If someone is trying to hurt you, why wouldn’t you fight for your life?”

But not everyone agrees. A security expert hired by Modesto City Schools in California Rex Osborn of Californiasafeschools.com said, “That’s actually been used in professional settings. Hospitals use it. Run, hide, fight — that’s what adults do, not what kids should do.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino.

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Guest Blog: PA seeks to expand DNA collection

Matthew T. Mangino
Pennsylvania Coalition Against Rape
December 17, 2013

DNA is having an impact on solving cold sexual assault cases. A quick google search reveals a litany of cases supporting the expanded collection of DNA evidence.

A couple of months ago, a former Pittsburgh man serving a 90-year sentence on separate sex offenses was convicted, through DNA, of sexual assault in a 24-year-old Allegheny County case. In Georgia, a man was recently arrested for a rape that occurred 15 years ago based on a DNA match. A North Carolina man already serving a prison sentence on a separate crime was arrested for a 17-year-old rape after a DNA match. In Denver, a man was arrested for an 18-year-old kidnapping and rape of a 14-year-old girl based on a DNA database match.

All 50 states collect DNA from people who have been convicted of crimes. Twenty-eight states and the federal government routinely collect DNA samples from arrestees. Pennsylvania may soon become the 29th state to authorize DNA collection after an arrest. Pennsylvania Senate Majority Leader Dominic Pileggi’s Senate Bill 150 would expand Pennsylvania’s DNA collection law by requiring individuals arrested for serious crimes to submit DNA samples.

Senate Bill 150 is supported by the Pennsylvania Coalition Against Rape, the Pennsylvania District Attorneys Association, the Pennsylvania Chiefs of Police Association, the Pennsylvania State Troopers Association, the Pennsylvania State Lodge of the Fraternal Order of Police and the national organization DNA Saves.

In June, the U.S. Supreme Court opened the door to DNA collection after arrest in Maryland v. King. The Court held, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justice Anthony M. Kennedy wrote in the majority opinion that the “quick and painless” swabbing procedure was a search under the Fourth Amendment. As a result the search had to be reasonable under the circumstances. Kennedy determined the search was reasonable given “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”

According to Watchdog.com, “The state police estimate expanding DNA collections could cost up to $7 million annually as labs are swamped with new requests.” However, in 2012 rape alone cost the Commonwealth over $503 million, and stopping repeat offenders could allow SB150 to pay for itself.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. He is the former district attorney for Lawrence County and former member of the Pennsylvania Board of Probation and Parole. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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The 'Knockout Game' is it reality or myth?

Reports of "Knockout Game" attacks — in which someone sneaks up to a random person and tries to knock them unconscious with one blow to the head — have proliferated across the U.S. in recent months, reported the Star-Ledger. Is it reality or myth?

The New Jersey Legislature thinks the knockout game is real and intends to do something out it. "'Knockout' is not a game. It is a violent and dangerous act," said New Jersey Assembly Minority Leader Jon Bramnick, who co-sponsored the legislation  with Assemblyman Ron Dancer. "As legislators, we must ensure that our laws address the newest inceptions of violence with the harshest possible penalties."

Still, some police officials have questioned recently whether the "Knockout Game" is actually real. They say the attacks may be nothing more than random assaults that have always occurred and that the "game" may simply be an urban myth.

"We're trying to determine whether or not this is a real phenomenon," New York City Police Commissioner Raymond Kelly told The New York Times last month. "I mean, yes, something like this can happen. But we would like to have people come forward and give us any information they have."

In New Jersey, an aggravated assault is a third-degree crime punishable by a three- to five-year prison term and a fine of $15,000. But Bramnick and Dancer said third-degree aggravated assault crimes do not usually lead to imprisonment.

The proposed measure, however, would specify that anyone found guilty of a "Knockout Game" aggravated assault must serve a minimum prison term of one-third to one-half of the three- to five-year sentence and would not be eligible for parole.

"Randomly punching someone with the intent to render them unconscious is anything but a game," Dancer said. "It's becoming a public safety issue and that's why we need to address it immediately."

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Homicides may hit 46 year low in Philadelphia

Fewer people have been slain in Philadelphia this year than at any time in almost a half-century, reported the Philadelphia Inquirer.

With an extraordinary decline in homicide already posted so far this year, the city appears poised to end 2013 with about 250 slayings, the fewest since 1967.

Barring a burst of violence in the last days of the year, the final tally should see 80 fewer deaths compared with 2012 - an unprecedented 24 percent fall.

Mayor Nutter, Police Commissioner Charles H. Ramsey, and District Attorney Seth Williams say the reduction reflects a sustained commitment to a crime-fighting plan that combined data-driven law enforcement and old-school, shoe-leather police work. The plan targets gun criminals and the most violent neighborhood "hot spots."

Williams and other officials say the fall in deadly violence also reflects reforms in the Philadelphia courts. The state Supreme Court has shaken up the city system to make sure more cases go to trial.

"Anyone who tells you it's one thing doesn't know what they're talking about," Nutter said in an interview last week. The key, he added, was "a consistent, regular focus" on a strategy.

As of Saturday, the homicide total was 238 - vs. 319 at the same date last year.

If the final homicide tally hits 250, that would be the fewest since 1967, when 234 were killed.

The drop this year is part of a downward trend in homicide in most big cities across the nation, statistics show.

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The Crime Report's Top Ten Stories of 2013

The Crime Report released its top stories for 2013.  Stephen Handelman, executive editor of The Crime Report wrote about the Top Ten Stories, starting with the number one story of the year--the Boston Marathon bombing:

We’re still asking why.

Eight months after one of the worst domestic terrorism incidents since 9/11, its impact continues to be felt on the nation’s first-responder infrastructure and anti-terrorism efforts—as well as by the victims and their families.

On April 15, two pressure-cooker bombs exploded at the crowded finish line of the Boston Marathon, killing three people and injuring 183 others. For a nation that was beginning to relax its guard with the winding down of wars in Iraq and Afghanistan, it seemed an ominous portent of new terrors to come.

But the alleged culprits, as far as we know today, were not trained jihadist warriors from Al Qaeda; but two brothers—one an aspiring Olympic boxer and the other a popular college sophomore, whose parents had brought them to safety in the U.S. from the violence-torn Russian province of Chechnya and who, until recently, had been deeply integrated into American life.

Next month, Attorney General Eric Holder is expected to decide whether to seek the death penalty for 20-year-old Dzokhar Tsarnaev, the surviving alleged bomber. (His elder brother Tamerlan was killed in a shootout with police during the citywide dragnet.)

However the case is resolved, we are sure to be left with more questions than answers.

But, more than anything else, the bombings made clear that Americans remain threatened by an ideology that is determined to exploit our vulnerabilities as an open, free society. The challenge of meeting that threat will continue to preoccupy us through 2014 and beyond. What happened in Boston’s aftermath, TCR contributor Matthew Mangino wrote in explaining his choice of the bombing as 2013’s top story, illustrated how “Americans have slowly reinvented their way of life to protect themselves from the threat of violence.”

Whether we live in Boston, Houston or Des Moines, what further measure of civil liberties and freedom of movement are we prepared to give up to keep ourselves safe?

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Ohio's efforts to reduce prison population failing

Ohio’s prison population is expected to grow from about 50,500 now to more than 51,000 next June, reported the Cleveland Plain Dealer. Current statewide prison capacity is about 38,500. Gary Mohr, the director of the Ohio Department of Rehabilitation and Correction, said an increase in convictions for drug crimes, especially heroin, have contributed to the rise in prisoners.

The number of people in Ohio prisons temporarily dipped after a new sentencing reform law took effect in 2011. But Mohr said some aspects of that law, which was Senate Bill 86, haven’t worked – such as risk-reduction sentencing, which allows the release of certain prisoners who complete treatment and programming while incarcerated.

While about 50,000 people have been sentenced to prison in the state since the new law took effect, Mohr said, risk-reduction sentencing has been used in less than 400 cases.

“There’s something wrong with it,” Mohr said. “It’s wrong or we haven’t communicated it well enough (to judges).”

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Missouri executes man for 1994 killing

The 38th Execution of 2013

Missouri has executed a Kansas City man convicted in the 1994 death of a good Samaritan, reported the Associated Press.

Allen Nicklasson was pronounced dead nearly 23 hours after his execution was originally scheduled. The U.S. Supreme Court lifted a stay of execution prior to the execution.

The execution was the state's second in three weeks and the second since Missouri began using a single execution drug, pentobarbital. Racist serial killer Joseph Paul Franklin was executed Nov. 20.

Nicklasson and two other men were returning to Kansas City after buying drugs in St. Louis in August 1994 when their car broke down. Excelsior Springs businessman Richard Drummond stopped to help them.

The men forced him to drive to a secluded area, where Nicklasson shot him twice in the head.
Nicklasson was pronounced dead at 10:52 p.m. December 11, 2013, eight minutes after the process began. His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words.

Missouri Department of Public Safety spokesman Mike O'Connell said Nicklasson prayed briefly with the prison chaplain about 20 minutes before the execution. No one from his family or the victim's family attended.

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GateHouse: Plea bargaining unhealthy for justice system

Matthew T. Mangino
GateHouse News Service
December 13, 2013

In the courtroom, and during plea negotiations, many practitioners warn of the “trial penalty.” This widely lamented tool of prosecutors suggests that sentences for people who go to trial are often greater than sentences for similarly situated defendants who plea bargain.

Human Rights Watch recently published a report documenting the use of mandatory minimums and sentence enhancements to negotiate plea bargains. The 126-page report details how prosecutors have successfully used sentencing resources to nearly eliminate trials.

According to Human Rights Watch, based on raw federal sentencing data for 2012, the average sentence for federal drug offenders who pled guilty was five years, four months; for those convicted after trial the average sentence was sixteen years.  For drug defendants convicted of offenses carrying mandatory minimum sentences, those who pled guilty had an average sentence of 82.5 months compared with 215 months for those convicted after trial — a difference of 11 years.

In some jurisdictions, particularly federal court, the gap between sentences has gotten so wide that defense attorneys have coined the phrase “plea bargaining coercion,” to portray clients who plead guilty to avoid the draconian punishment for exercising their right to trial.

Some experts say the process has become so coercive that defendants must look beyond the issue of guilt or innocence and weigh the risk of forcing the government to prove its case and in the process doubling or tripling a potential sentence. In effect, sentence enhancements and mandatory minimum sentencing are driving up the risk of going to trial to the point that guilt or innocence is no longer a part of the equation.

The plea bargain, however unpopular or unseemly, is a much needed tool in the administration of justice. If the plea bargain were to disappear the criminal courts would grind to a halt.  Last year, U.S. Supreme Court Justice Anthony Kennedy said plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

Why shouldn’t there be a trial penalty? What reasonably prudent defendant, represented by a reasonably competent attorney, would plead guilty if she knew a conviction at trial would bring the same penalty as pleading guilty. A defendant would have nothing to lose by going to trial.

However, at least one judge thinks that prosecutors routinely abuse their authority when using sentence enhancement to negotiate pleas. Judge John Gleeson, of the United States District Court for the Eastern District of New York, recently wrote in a court statement reported by the New York Times, “Prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one — not even the prosecutors themselves — thinks are appropriate.” Gleeson said the tactic “coerces guilty pleas.”

Ninety-seven percent of federal criminal prosecutions are resolved by plea bargain. Judge Gleeson raises another concern, “An excessively high rate of guilty pleas is unhealthy for our justice system.”

Why? The only scrutiny a case may receive is that afforded by a grand jury. Longtime Manhattan District Attorney Robert Morgenthau said that he could get a grand jury to indict a “ham sandwich.”

Gleeson wrote, “Our [grand jury] system permits indictment to be returned on an ex parte presentation consisting entirely of inadmissible evidence.” The burden of proof requires a showing of probable cause not beyond a reasonable doubt, and only with the vote of a majority of the grand jurors not unanimity.

“The notion that defects in the grand jury’s screening function will come out in the wash at trial is sound only if a meaningful percentage of cases go to trial,” wrote Gleeson.

Three percent is not a meaningful amount. As a result the cleansing effective of trial has all but disappeared. Beyond a reasonable doubt, the bedrock of the criminal justice system plays no role in an alarming number of cases.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Cautionary Instruction: Is texting law having an impact in Pennsylvania?

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
December 13, 2013

A study by the Virginia Tech Transportation Institute found that texting while driving multiplies the chance of crashing by 23. Composing a typical text message is roughly akin to closing one's eyes for nearly five seconds, during which time a car going 55 mph covers more than the length of a football field.

Analysis from AAA shows that the Pittsburgh Metro area ranks second in the state of Pennsylvania for texting-while-driving citations.

According to the study, there were a total of 1,302 citations issued across Pennsylvania during the first full year of the law being in effect.

The study shows 111 of the citations were in Allegheny County and nearly 200 citations were issued in the seven counties surrounding the Pittsburgh area, including Allegheny, Armstrong, Beaver, Butler, Fayette, Washington and Westmoreland counties.

Text messaging is banned for all drivers in 41 states and the District of Columbia. In addition, novice drivers are banned from texting in 6 other states. Only three states, Arizona, South Carolina and Montana have no restrictions.

Many localities have enacted their own bans on cellphones or text messaging. In some but not all states, local jurisdictions need specific statutory authority to do so. In addition, most school bus drivers are banned from texting and using hand-held cellphones by state code, regulation or school district policy.

University of Wisconsin, Milwaukee economics professor Scott Adams looked at what happens when states pass texting and driving laws.

It turns out, people stop texting and driving for a little while — and then they start doing it again pretty quickly.

"What we saw was that there was an initial decline in accidents once texting bans were passed. That was quite substantial," Adams told National Public Radio. "But after a few months, there was no effect."

Adams thinks it's partly because the consequences for getting caught are often pretty light. In some states, the police can't even pull you over unless you're doing something else wrong, like not using your turn signal.

The law signed in March 2012 by Gov. Tom Corbett made texting while driving a primary offense, meaning police didn't need another reason to pull someone over for texting. "I don't have any statistics, but I can tell you it seems to have made an impact, just from the feedback we get from students," Trooper Robin Mungo told the Post-Gazette.

The numbers seem to bear that out: Of the 113 texting citations that had been issued in Allegheny County as of March, 2013, only four were to drivers younger than 20.

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Oklahoma carries out its 5th execution of 2013

The 37th Execution of 2013

Ronald Clinton Lott was executed in Oklahoma on December 10, 2013 for raping and murdering two elderly women in the 1980s, reported CBS News. Lott was the fifth person executed in Oklahoma this year.

Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City City homes. DNA evidence linked him to the crimes. He made no final statement.

"Ronald Lott was sentenced to death by a jury of his peers for the heinous and unconscionable acts he committed against Anna and Zelma in their homes," Attorney General Scott Pruitt said in a statement.

According to Oklahoma criminal appeals court records, evidence presented at trial suggested Lott attacked the women and sat on their chests, breaking their ribs. Both had numerous bruises and were asphyxiated.

Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.

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White House Sets $100 Million For Mental Health Treatment

The Obama administration is announcing a $100 million plan to improve mental health services in advance of the one-year anniversary of the Newtown school shooting, USA Today reports. Vice President Biden announced  the plan this week with families who lost loved ones during the Dec. 14 attack on Sandy Hook Elementary School.

The $100 million will be made available "to increase access to mental health services and improve mental health facilities as part of the Administration's ongoing commitment to help individuals experiencing mental health problems," said the White House. Half the money will come through the new health care law to help community centers provide more mental health services. The rest, via the Department of Agriculture, will help finance rural facilities.

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U.S. Supreme Court Examines Fourth Amendment Rights

Matthew T. Mangino
The Pennsylvania Law Weekly
December 9, 2013

The U.S. Supreme Court recently heard arguments in a Fourth Amendment case that has the potential to undermine a homeowner's reasonable expectation of privacy.

The case argued before the Supreme Court is Fernandez v. California, 12-7822. The issue before the court began in 2009 when police responded to the report of a robbery. An officer saw a man who resembled the suspect running into an apartment building. When officers announced themselves, a woman opened the door. Inside the apartment, police spotted Walt Fernandez, who they believed was their man.

The police asked the woman if they could search the apartment. Fernandez stepped forward and strenuously objected to the search.

Police arrested Fernandez for robbery and left the woman in the apartment. About an hour later, one of the officers returned to the apartment, told the woman that Fernandez was in custody and asked once again if he could search the apartment. The woman agreed.

Police found a sawed-off shotgun, ammunition and a knife, which prosecutors used as evidence to prove Fernandez was guilty of robbery. Fernandez argued that the evidence was seized illegally.
The ability to search a residence with consent of one co-tenant dates back to United States v. Matlock, 415 U.S. 164 (1974). In Matlock, the court stressed that co-tenants "assume the risk" that one tenant will consent to a police search of the residence, so if only one tenant is present, he or she can consent for all of the tenants.

In Georgia v. Randolph, 547 U.S. 103 (2006), the court narrowed the "co-tenant rule" established in Matlock. In Randolph, the police were called to a home wherein a husband and wife were arguing. The wife complained of the husband's drug use. The police asked for his permission to search the residence; he refused. The police asked the wife if she would consent to the search. She agreed and took the police inside, where they found illegal drugs.

A majority of the court concluded that "no sensible person" would enter a residence when one co-tenant is present and objecting. A tenant's "reasonable expectations" of privacy resulted in the evidence of the husband's drugs being suppressed.

There is a deep split among the federal circuit courts regarding the issue presented in Fernandez. The U.S. Court of Appeals for the Ninth Circuit's holding not allowing the police to conduct a consensual search if one tenant grants permission after the refusing tenant leaves is in conflict with holdings in the Eighth, Seventh, Fifth and Fourth circuits, as well as the state supreme courts of Colorado, New York and Wisconsin.

Michigan courts, an Oregon state appellate court and the District of Columbia agree with the Ninth Circuit.

During this month's argument before the U.S. Supreme Court, some justices appeared to agree with attorneys for the Los Angeles Police Department.

"It's her house, too," Justice Stephen G. Breyer said, according to The Los Angeles Times. "Can she never invite the policeman in?"

"The police can simply get a warrant," Fernandez's attorney replied.

But Chief Justice John G. Roberts Jr. said the police may find obtaining consent from a tenant "simpler, faster and less burdensome than applying for a warrant."

There are a number of concerns with the facts in Fernandez.

Can the police use an arrest as a pretext to proceeding with a warrantless search? Presumably, if the police have probable cause for an arrest, they would have sufficient probable cause for a search warrant. Can police dispense with a search warrant merely because it is quicker and easier to get consent from one tenant over the objection of another tenant?

Is the issue in Fernandez more about expediency than an infringement on a reasonable expectation of privacy?

There is a history of using pretextual traffic stops to get probable cause for a search. In Whren v. United States, 517 U.S. 806 (1996), police waited for a suspect to commit a vehicle code violation and pulled the vehicle over with probable cause. Police have also utilized the assistance of drug-sniffing dogs to establish probable cause to search vehicles that were subject to pretextual stops.
There are also accepted exceptions to getting a warrant prior to conducting a search. Exigent circumstances may permit a search in, as Roberts put it, a "simpler, faster and less burdensome" manner.

Only Justice Sonia Sotomayor strongly argued for requiring police to obtain a warrant from a magistrate before searching a home. At one point, Sotomayor exclaimed, "Get a warrant. When you have probable cause to believe a crime has been committed ... you've got to secure the premises and get a warrant. I don't know why that's so difficult for police officers to understand."
A suspect that clearly and unequivocally asserts his or her refusal to consent to a search should have that assertion honored.

There have been other exceptions carved out when specifically invoking constitutional protections. For instance, in Maryland v. Shatzer, 550 U.S. ___ (2011), the court found that when an accused invokes the Sixth Amendment right to counsel, the police may not seek to question the accused again until at least 14 days pass and the accused is not in custody.

This seems like a useful pause that would permit the accused to reflect on his or her need for counsel. Such a pause would be impractical in a search-related situation. An accused's memory of events are not likely to change in 14 days, but potential evidence existing in a place to be searched can be removed or destroyed.

Black-letter law provides that the Fourth Amendment prohibits unreasonable search and seizure. At stake is a suspect's reasonable expectation of privacy. A suspect's Fourth Amendment rights are preserved when a disinterested magistrate authorizes a search of a specific location for specifically detailed items.

The warrant is issued only upon probable cause. The high court should not permit the police to do any less to search Fernandez's home.


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a former district attorney for Lawrence County and a former member of the Pennsylvania Board of Probation and Parole. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Federal judge: Prosecutors coerce guilty pleas

“Prosecutors routinely threaten ultraharsh, enhanced mandatory sentences that no one — not even the prosecutors themselves — thinks are appropriate,” said Judge John Gleeson, of the United States District Court for the Eastern District of New York, reported the New York Times. The way prosecutors use this hammer, Judge Gleeson wrote, “coerces guilty pleas and produces sentences so excessively severe they take your breath away.”

The result is that federal drug trials have become a rarity: 97 percent of defendants plead guilty.
       

A new study by Human Rights Watch, in New York, is the first to quantify what some call the “trial penalty,” the extra prison time that federal drug defendants get if they exercise their right to a trial and lose.

A Justice Department spokeswoman, Ellen Canale, told the Times that the department “seeks to ensure that these enhancements are reserved for serious, high-level or violent drug traffickers” and “agrees that the enhancements should not be used to coerce defendants.”

William G. Otis, an adjunct professor at the Georgetown University Law Center and a former federal prosecutor, said that the reason defendants were in a poor bargaining position was not a result of prosecutors’ abuse, but because “there is solid proof they committed a crime.” The fact that violent crime has declined significantly over the last 20 years means that the system is generally working well, he told the Times.

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Why do innocent people confess to crimes?

The answer may surprise you--misplaced faith in the justice system.

Douglas Starr author of a new article in the New Yorker,  "The Interview: Do Police Interrogation Techniques Produce False Confessions?", told Terry Gross on NPR's Fresh Air:

First of all, there's a group of people who confess falsely to something because there's something wrong with them. More than 200 people confessed to the kidnapping and murder of the Lindbergh baby. ... But there are external reasons as well. ... If you're held in a room and you think there's no way out, but you're sure that the justice system will eventually exonerate you, you might actually confess just to get out of the situation. When you're in a situation where [your] denial is batted away no matter what you say and they start lowering the barrier of confession ... it becomes the easy way out. Interestingly, naive people, with faith in the justice system, tend to confess more because they're sure something will work out on the other side. The trouble is confession trumps everything. Even physical evidence will bend once somebody's confessed because confessions are so compelling.

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GateHouse: Congress hesitates in the face of 3-D guns

Matthew T. Mangino

GateHouse News Service

December 6, 2013

 

Last December, Congressman Steve Israel urged his colleagues to renew a federal ban on plastic guns that can evade detection at airports, public buildings and schools. He alluded to futuristic weapons made partially with three-dimensional printers.

 

“It is just a matter of time before these three-dimensional printers will be able to replicate an entire gun,” Israel said during a news conference last year at Long Island MacArthur Airport.
 

The future is now, and the Senate, a year later, has not renewed the Undetectable Firearms Act and the House has refused to update the law.

 

If the act is not renewed and updated before it expires next week, firearms manufactured in basements and backrooms can slip past metal detectors and X-ray machines.

 

The Undetectable Firearms Act bans guns that can pass unnoticed through detection devices, and has been renewed twice in the 25 years since it was first enacted. However, when the law was enacted and renewed, most recently in 2003, no one anticipated 3-D guns.

 

Cody Wilson a 25-year-old second-year law student at the University of Texas published the 3-D gun-making blueprints. His website Defense Distributed was shut down by The State Department over concerns about exporting of firearms. However, in the short time the website was up more than 100,000 copies of the blueprint were downloaded.

 

According to the College Station Eagle, most high-end industrial 3-D printers fabricate an object using a technique called laser sintering. These printers can create any item, such as a gun, by creating a 3-D rendering in a computer and digitally slicing it into 2-D layers. The rendering is then transferred to the printer, which uses materials, mostly plastics, and a binding agent to build the gun layer-by-layer. Essentially, the printer binds the 2-D layers on top of each other to form a 3-D object.

Nick Bilton explained in the New York Times that 3-D printers are quickly becoming a consumer product. 

 

“These printers, which now cost about $1,000 … long used by industrial companies to make prototypes and parts, 3-D printers are becoming faster and less expensive almost weekly,” he said.

 

Recently, the ATF tested two versions of the printed 3-D gun. One printed with material known as Visijet, and another in stronger plastic known as ABS. An ATF spokesman told Forbes that the ABS gun shot eight rounds without problems in its tests. The Visijet gun immediately exploded on firing.

As the renewal of the Undetectable Firearms Act becomes contentious in Congress, Philadelphia’s City Council voted unanimously last month to prohibit the use of 3-D printers to create any firearm or “any piece thereof” unless that person possesses a license to manufacture firearms.

The extension of the Undetectable Firearms Act has been delayed as lawmakers fight over whether to simply extend the act or amend it to include new provisions aimed specifically at 3-D weapons.

The law expires on Dec. 9, reauthorizing it has been caught up in a political standoff that has thwarted other recent attempts to enact gun legislation. This week, the House renewed the act without addressing 3-D guns.

New York Sen. Chuck Schumer intends to offer an amendment in the Senate that prohibits the manufacturing of 3-D guns without a permanent piece of metal imbedded in the gun to trigger metal detectors and other detection devices.

According to the New York Times, Alabama Sen. Jeff Sessions said he was concerned not about extending the law as written but about senators like Schumer who support gun-safety measures using the law as a backdoor way of attaching additional provisions.

“They’re considering altering it, putting more language in it,” Sessions said. “There’s concern that it may be altered in a way that would be problematic.”

Political posturing aside — lawmakers, prosecutors and police chiefs know what is at stake. If stopping the proliferation of firearms that are not detectable at airports, public buildings and schools is "problematic” we need to rethink our public safety priorities.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Cautionary Instruction: ‘Stand your ground’ back in the news

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
December 6, 2013

The controversial self-defense law known as ‘Stand Your Ground’ is back in the news. Two tragic killings, one in a small north Georgia community near the Tennessee border and the other in Dearborn Heights a suburb of Detroit, have once again heightened awareness of the law.

In Georgia, 72-year-old Ronald Westbrook, suffering from Alzheimer’s had wondered away from his home in the frigid early morning hours the day before Thanksgiving.

Westbrook ended up nearly three miles from home with a handful of other people’s mail, jiggling the doorknob of a home owned by Joe Hendrix.

Hendrix, a 34-year-old Iraq war veteran, stepped onto his porch with a Glock pistol in his hand and his fiancée inside on the phone with a 911 dispatcher. He fired four shots. One hit Westbrook in the chest killing him.

Last month, Theodore Wafer was charged with murder in Wayne County, Michigan after he blasted Renisha McBride in the head with a shotgun after she knocked on his door following a car crash.

McBride was under the influence of alcohol when she was injured in an automobile accident and wandered away from the scene and on to Wafer’s porch in the middle of the night.

Prosecutor Kym Worthy said 'self-defense was not warranted'. The prosecutor believed that Wafer could not have reasonably believed his 'life was in imminent danger'.

Laws in at least 22 states allow that there is no duty to retreat from an attacker in any place in which one is lawfully present. (Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.) At least nine of those states include language stating one may “stand his or her ground.” (Alabama, Florida, Georgia, Kansas, Kentucky, Louisiana, Oklahoma, Pennsylvania and South Carolina.)

Pennsylvania's expanded castle doctrine gives individuals the right to use deadly force without retreating anywhere they are legally allowed to be, provided they reasonably believe they are facing death, serious injury, kidnapping or rape, per 18 Pa.C.S. Sec. 505. The key difference is, in Pennsylvania, the aggressor must be armed with a gun or other lethal weapon capable of inflicting death or serious bodily injury.

More states are jumping on board. The Ohio House of Representatives voted recently to adopt a variation of the stand your ground.

The legislation has been mockingly referred to as the “George Zimmerman bill,” named for the Florida man — recently arrested again — whose killing of 17-year-old Trayvon Martin fueled a national debate on stand your ground and self-defense.

Under current Ohio law, residents have a duty to retreat before using deadly force. Ohio House Bill 203 would eliminate the duty to retreat. The law would, under certain circumstances, permit the use of deadly force in self-defense.

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WYSU Commentary: Matthew T. Mangino

Listen to my commentary JFK: What could have been.  The commentary was broadcast on WYSU a National Public Radio affiliate on November 22, 2013.

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Texas executes man for death of corrections officer

The 36th Execution of 2013

Texas executed Jerry Martin on December 3, 2013 for the death of a corrections officer during a short-lived escape from prison six years ago, reported the Houston Chronicle.

Martin was a volunteer, he had requested that no additional appeals be filed on his behalf, clearing the way for his lethal injection.

From the death chamber gurney, Martin told relatives of the slain corrections officer that he was sorry. "I wish I could take it back, but I can't," he said.

"I hope this gives you closure. I did not murder your loved one. It was an accident. I didn't mean for it to happen, but it happened. I take full responsibility."

Martin was serving a 50-year sentence for attempted capital murder when he and another inmate,  broke away from a work detail outside a Huntsville-area prison on Sept. 24, 2007. In the ensuing chaos and gunfire, a 59-year-old prison officer on horseback, Susan Canfield, suffered fatal head injuries. Martin and Falk sped away in a stolen pickup truck but were quickly captured.

Canfield's husband and daughter were among the people watching Tuesday through a window in the death chamber.

Martin told his own friends and a brother, watching through another window, that he loved them. "You know I'm at peace. God is the ultimate judge. He knows what happened."

He took a deep breath, then snored as the drug took effect. He was pronounced dead 11 minutes later at 6:27 p.m.

More than 200 corrections officers stood outside the prison in formation as the execution was taking place. Next to them was a riderless horse. A large photo of Canfield was displayed at the steps leading to the prison front door.

"This is a great day and justice has been done," Canfield's husband, Charles, a retired Houston police officer, said after watching Martin die. "I heard what he said. I accept what he said. Do I give it any credibility? No, sir, I don't.

"The fact is he was escaping. ... I don't care if you intend it or not. You committed the act and, in this state, thank God we live in one where capital murder exists and where that punishment exists."

 

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House passes Undetectable Firearms Act without 3-D provision

The House of Representatives renewed the Undetectable Firearms Act without any provision for 3-D guns. The Act's renewal faced little opposition, it was only debated for 10 minutes and passed on a voice vote, reported the Huffington Post.

It's the only gun-related measure to get a House vote since Democrats launched a major push for action on gun violence in the wake of the Sandy Hook Elementary School shooting late last year.

Tuesday's vote doesn't implement new gun laws -- it just extends a current one banning guns that don't contain enough metal to trigger X-ray machines or metal detectors. The law was originally signed by President Ronald Reagan and was renewed by Presidents Bill Clinton and George W. Bush, passing Congress with broad bipartisan support each time. It is currently scheduled to expire on Dec. 9.

While the House didn't make any changes to the law, Senate Democrats are poised to try to expand it. Sen. Chuck Schumer (D-N.Y.) will put forward a bill on Monday, the same day the law is set to expire, containing a provision targeting plastic guns made with 3-D printing technology. Specifically, his bill would require that guns contain a piece of metal that is intrinsic to its operation, such as in the barrel or the trigger handle, rather than an extraneous piece that could be removed before a gun is put through a metal detector.

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Florida's new lethal injection drug approved

A drug that Florida recently started using in executions does not subject inmates to unconstitutionally cruel and unusual punishment, a Florida judge ruled, according to Reuters.

The challenge to the use of midazolam hydrochloride, the first of three drugs used in Florida executions, now goes back to the state Supreme Court. In a sharply divided 5-2 ruling last week, the high court directed Judge Phyllis Rosier of Florida's Eighth Judicial Circuit to hold an evidentiary hearing on the effectiveness of the drug.

An attorney for Askari Abdullah Muhammad, previously known as Thomas Knight, won a stay of execution through at least December 27 with the medical challenge. He had been scheduled to die last month.

"No credible evidence has been presented to this court that shows midazolam as an anesthetic in the amount prescribed by Florida's protocol is ‘sure or very likely to cause serious illness and needless suffering,' or give rise to ‘sufficiently imminent dangers,'" Rosier wrote, citing a standard set by U.S. Supreme Court rulings.

Rosier said Dr. Mark Heath, a New York anesthesiologist testifying for Muhammad last week, had said midazolam would produce a deep state of unconsciousness at 10 or 15 milligrams. The execution method uses 500 milligrams.

News reports said William Happ, the first man executed with the new drug mix, showed some signs of movement and that it took longer for him to die. Heath "speculated that it could mean that Happ was not fully anesthetized when the second phase of the protocol was administered," Rosier wrote in her order.

But Dr. Lee Evans, testifying for the state, said Happ's movement did not prove that he felt anything. Rosier said Evans testified that midazolam "is faster acting than pentobarbital in inducing unconsciousness."

Pentobarbital was the drug previously used to put condemned prisoners to sleep. Its manufacturer has refused to supply it to states using it in executions so Florida switched to midazolam - executing two men with it so far. No other state has used the drug yet.

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Nebraska prisoners sue state over prison crowding

Two Nebraska inmates are suing the state's new corrections director, alleging overcrowding at Tecumseh State Correctional Institution is resulting in the intentional infliction of emotional distress, reported the Lincoln Journal Star.

The two inmates allege the Department of Correctional Services Director Michael Kenney and more than three dozen others, including Gov. Dave Heineman, have breached their duty by allowing such conditions to exist and failing to take steps to alleviate them.

The men want $20 million each for what they call intentional infliction of emotional distress and another $60 million each for punitive damages.

The civil lawsuit say that because of overcrowding they get a fifth of the 50 square feet of living space listed in guidelines by the American Correctional Association, the prison's ventilation system in grossly inadequate to prevent mold and other contaminants, and it often takes several minutes for staff to respond to medical emergencies.

"If a prisoner is having a heart attack or is being attacked by his cellmate, the response time would cost him his life," they wrote, reported the Journal Star.

Nebraska’s nine prisons have room for 3,175 inmates and hold 4,782 -- about 151 percent of capacity. That's projected to hit 188 percent by 2020 unless changes are made. Reaching 140 percent of capacity triggers a report to the governor, who can declare an emergency; Heineman has not done so. That level also can be a benchmark federal judges use to order construction of new cells.

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The Vindicator: Is Ohio following wrong path?

Matthew T. Mangino
The Youngstown Vindicator
December 1, 2013

The Ohio House of Representatives voted recently to adopt a variation of the “stand your ground” legislation enacted by nearly half the states around the country.

Under current Ohio law, residents have a duty to retreat before using deadly force. Ohio House Bill 203 would eliminate the duty to retreat. The law would, under certain circumstances, permit the use of deadly force in self-defense.

The measure passed the House by a vote of 62-27. It now goes to the Senate. The bill is not without controversy. The Ohio House vote was interrupted by protests as opponents attempted to shout down legislators debating the bill on the house floor.

The legislation has been mockingly referred to as the “George Zimmerman bill,” named for the Florida man — recently arrested again — whose killing of 17-year-old Trayvon Martin fueled a national debate on stand your ground and self- defense.

Opponents

There are notable opponents to the deadly self-defense laws. U.S. Attorney General Eric Holder, Jr. has taken a strong stance against stand your ground laws.

“There has always been a legal defense for using deadly force if — and the ‘if’ is important — no safe retreat is available,” Holder said. “It’s time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods.”

Since Florida enacted the first stand-your-ground law in 2005, at least 22 other states have enacted some variation of the expansive self-defense law. The issue is unsettled even in states that have adopted the law.

In March, months before the Zimmerman trial, the New Hampshire House passed a bill to repeal the state’s stand your ground law enacted in 2011. The effort later failed in the state senate, according to the Concord Monitor.

Last summer, U.S. Sen. John McCain, R-Ariz., called for a review of his state’s stand your ground law.

According to the National Conference of State Legislatures, a bill in North Carolina that would have amended aspects of the law regarding use of force against an intruder never made it out of committee. There were about a dozen bills before state legislatures in 2012, several of which would have amended circumstances allowing for use of force by citizens. None of those proposals advanced.

In Pennsylvania, the chances of repealing the expanded castle doctrine are next to none. In 2011, 45 out of 50 state senators voted in favor of the law. There is little stomach among Pennsylvania lawmakers for quarrelling with gun supporters.

An attempt to repeal Florida’s stand your ground law was defeated by an 11-2 vote in committee earlier last month, but the law remains hotly contested in Florida’s courtrooms and passionately debated on Florida’s streets.

There is growing concern that stand your ground laws may be doing more harm than good. There are a number of studies indicating that stand your ground is actually increasing homicides.

A Texas A&M University study found “that homicides go up by 7 to 9 percent in states that pass the laws, relative to states that didn’t pass the laws over the same time period,” according to A&M economist Mark Hoekstra.

A deterrence?

As to whether the laws reduce crime — by creating a deterrent for criminals — he says, “we find no evidence of any deterrence effect over that same time period.”

A study sponsored by Mayors Against Illegal Guns found “that justifiable homicides increased by 53 percent in states with stand your ground laws, while decreasing by 5 percent in states without these laws.”

Regardless of the research, the political climate is clear. Adam Winkler, a law professor at the University of California, Los Angeles, told the Christian Science Monitor, “For better or worse, stand your ground laws are here to stay.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino.

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Texas passes Michael Morton Act-Protect the innocent from wrongful conviction

Texas district and county attorneys are preparing to implement a new law that aims to prevent wrongful convictions by requiring prosecutors to open their files to defense lawyers, reported the Texas Tribune.

The Michael Morton Act, which lawmakers approved this year in the wake of the namesake’s case, requires prosecutors to disclose evidence in their files to defense lawyers in criminal cases. Morton was sentenced to life in prison for his wife’s murder. After he spent nearly a quarter-century in prison, DNA evidence revealed that he was innocent, and an investigation of the case revealed that the prosecutor had not disclosed evidence that could have prevented Morton’s wrongful conviction.

Williamson County District Attorney and state district Judge Ken Anderson went to jail and lost his law license because of his role in Michael Morton's wrongful conviction, read my GateHouse column on Anderson.

Morton, who was freed in 2011, was a fixture at the Capitol this year, lobbying for bills like the Morton Act that increase accountability for prosecutors. Under the act, prosecutors are required to give defense lawyers evidence in their files and to document the release of that information.

In many large counties across the state, prosecutors have long had open-file policies, so the transition to the new law is less challenging. But in smaller counties where sharing such large volumes of information is not routine, establishing the basic nuts and bolts of transferring reams of data while not exposing private information is a big task to tackle.

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