Sunday, March 31, 2013

Another Law Enforcement Figure Gunned Down

Kaufman County, Texas District Attorney Mike McLelland and his wife, Cynthia, were found with fatal gunshot wounds Saturday — two months after Assistant District Attorney from the same county, Mark Hasse, was gunned down outside of a nearby courthouse.

Forney Mayor Darren Rozell said that the McLelland murders appear to be a “targeted attack” potentially linked to Hasse's death.

Authorities said that the FBI was checking to see if Hasse’s killing could be related to the March 19 killing of Colorado Department of Corrections head Tom Clements, who was gunned down after answering the doorbell at his home.

Evan Spencer Ebel, a former Colorado inmate and white supremacist who authorities believe killed Clements and a pizza deliveryman two days earlier, was killed in a March 21 shootout with Texas deputies about 100 miles from Kaufman.

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Effort to Abolish Colorado's Death Penalty Stalls

A Colorado legislative committee sunk a bill that sought to abolish the death penalty, a week after Gov. John Hickenlooper expressed concerns that Coloradans were not ready to do away with capital punishment, according to the Denver Post.
Until Hickenlooper voiced opposition at a House Democratic caucus luncheon, the bill's sponsors said they had the votes to pass the measure out of committee and through both chambers, and ultimately deliver it to the governor's desk.

"I think had the governor not signaled so strongly he wouldn't sign the bill, I think we would have had those votes," Rep. Claire Levy, D-Boulder told the Post. Claire along with Rep. Jovan Melton, D-Aurora, sponsored the measure. "We would have repealed the death penalty in Colorado, and I think we could all stand up proud and strong and know that we did the right thing."

Hickenlooper reluctance may have been a response to the murder of the state's secretary of corrections.
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Saturday, March 30, 2013

GateHouse: Plea bargaining is elevated to constitutionally protected right

Matthew T. Mangino
GateHouse News Service
March 29, 2013

Last spring, the U.S. Supreme Court elevated plea bargaining, as Justice Antonin Scalia put it, “from a necessary evil to constitutional entitlement.” In two separate cases, the court extended the Sixth Amendment right to a fair trial to include competent legal representation during plea negotiations.

In a dissenting opinion, Scalia described plea bargaining as “a somewhat embarrassing adjunct to our criminal justice system.”

Prosecutors are prone to overcharging; and overcharging compels innocent people to plead guilty in order to avoid harsh consequences. For those who are actually guilty, plea bargaining often results in a sentence well below what the law provides.

Scalia contends that plea bargaining is accepted because “many” believe that the criminal justice system would grind to a halt if forced to try every case.

The truth is that 97 percent of federal cases and 94 percent of state cases end in plea bargains. As the system currently operates, it would be impossible to provide a constitutionally mandated trial-by-jury for every criminal defendant.

The two plea bargaining cases were Lafler v. Cooper and Missouri v. Frye. In Cooper, the court considered whether an attorney's advice to his client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Frye, the court considered whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.

What is interesting about these decisions is that, on the one hand, the court acknowledged, “[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.” Yet, according to Justice Anthony M. Kennedy, “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.”

How important are these decisions? Duquesne University law professor Wesley M. Oliver told the New York Times, “The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.”

Margaret Colgate Love, an attorney who prepared the American Bar Association brief advocating for recognition of plea bargain rights, told the Washington Post, “What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system.”

However, not everyone agreed that the decisions will have a positive impact on the criminal justice system. Robert Weisberg, a law professor at Stanford Law School told National Public Radio that it will often be difficult recreate the circumstances that existed prior to a defendant rejecting, or ignoring, a plea bargain and then getting convicted at trial. "It's as if we have to erase history, forget that the defendant was convicted at a fair trial, and somehow reconstruct behind some veil of ignorance the original plea bargain to see if it would have gone down, and that's not easy.” 

Justice Scalia characterized the newly established test for plea bargain relief as “crystal-ball gazing posing as legal analysis.” There is no question that it will be difficult to reconstruct how a negotiated plea bargain may have worked out absent substandard legal advice.  

The court could no longer ignore that plea bargaining is the grease that keeps the criminal justice system lubricated. With more than 9 out of 10 cases resolved by plea, the court has finally extended constitutional scrutiny to a process that occurs in nearly every single case.   Competent legal counsel during plea negotiations is deservedly a constitutionally protected right.

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 and follow him on Twitter at @MatthewTMangino.

Friday, March 29, 2013

The Cautionary Instruction: Sequestration’s impact on public safety

The Pittsburgh Post-Gazette/Ipso Facto
March 29, 2013

The U.S Bureau of Prisons has about 38,000 employees who supervise 176,000 inmates at 117 institutions nationwide. A report last fall by the Government Accountability Office (GOA) found that the growth in federal inmate population has negatively affected inmates, staff and infrastructure.

Now, the federal sequestration law threatens to put inmates and staff at even greater risk.

From 1997 to 2011, the Federal Bureau of Prisons (BOP) reported that the ratio of inmates to BOP staff increased from 3.57 inmates per staff member to 4.94. This includes all staff not just correctional officers. During that same time period the inmate ratio to correction officers varied between 10:1 in maximum security prisons to 14:1 in medium security facilities.

According to the GOA, nearly all BOP facilities had fewer correctional staff than needed, with a BOP-wide staffing shortage in excess of 3,200. The total BOP staff compliment includes correctional officers as well as administrative, program and support personnel responsible for all of the BOP’s activities and treatment nationwide.

The BOP philosophy is that all employees are correctional workers. All employees are trained in the basic responsibilities of a corrections officer. When circumstances dictate, a facility superintendent can implement what is known as augmentation—requiring administrative staff to do correctional work.

Then there is the issue of inadequate facilities. “As of January 2011, 94 percent of high security inmates were double bunked, and 16 percent of medium security inmates and almost 82 percent of low security inmates were triple bunked or housed in space not originally designed for inmate housing.”

Overcrowding can create dangerous conditions for inmates and prison staff.

Cramped quarters and a lack of privacy can lead to a heightened level of tension in correction facilities. In turn, as tension grows the incidence of violence against staff and fellow inmates increase. With minimum staffing and growing supervision responsibilities, corrections officers and inmates are more vulnerable.

Last week, Attorney General Eric Holder averted daily furloughs of 3,570 BOP staffers around the country, moving $150 million from other Department of Justice (DOJ) accounts to stave off what would have been an overall reduction of about 12 percent of the BOP workforce.

The sequester resulted in $1.6 billion in budget cuts for the DOJ.

Holder’s decision to juggle funding within the DOJ to avert disaster is within his authority according to the Office of Management and Budget, but "these flexibilities are limited and do not provide significant relief due to the rigid nature of the way in which sequestration is required by law to be implemented."

Holder acknowledged that the transfer may create a crisis in other law enforcement areas funded by the DOJ. "I am deeply troubled by the impact the sequester will have on the department's capacity to prevent terrorism, combat violent crime, partner with states and local law enforcement agencies and protect the judiciary and our most vulnerable citizens," Holder said.

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Thursday, March 28, 2013

PA Supreme Court to hear suits by judges challenging mandatory retirement

The Pennsylvania Supreme Court announced that it will hear arguments at its Harrisburg session in two of the three lawsuits filed by judges challenging Pennsylvania’s mandatory requirement that they retire in the year in which they turn 70, reported The Legal Intelligencer.

In a somewhat unusual order, the court today directed expedited briefing on whether the mandatory retirement provision for judges in the state constitution violates their state constitutional rights for “enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

The issue could have an impact on the future of the state Supreme Court because four of the six justices who are currently sitting will reach the age of 70 in the next six years: Pennsylvania Chief Justice Ronald D. Castille and Justices Max Baer, J. Michael Eakin and Thomas G. Saylor.

Castille will reach mandatory retirement next year, Saylor in 2016, Baer in 2017, and Eakin in 2018.

The judges prosecuting the lawsuits said that the court should exercise extraordinary jurisdiction because the plaintiffs face the “irreparable harm of being prematurely forced out of the judicial” positions to which they were elected, among other arguments.

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SCOTUS: This time dog-sniff violates violates rights

This week, the Supreme Court limited the ability of the police to use drug-sniffing dogs outside homes, according to Adam Liptak of the New York Times.

The case focused on a Florida police dog who detected the smell of marijuana outside a house used by Joelis Jardines. Based on the dogs's signal, the police obtained a warrant to search the house, and they found a marijuana-growing operation inside.

Last month, the U.S. Supreme Court ruled that as long as a drug-sniffing dog is well trained his performance on the job really doesn’t matter. The case, also out of Florida, found that police are not obligated to prove that their drug sniffing dog has a history of success in order to use evidence revealed through the dog.

In the present case, Jardines moved to suppress the evidence, saying the dog-sniff around his residence was an unreasonable search barred by the Fourth Amendment. The Florida Supreme Court agreed, and so did a majority of the United States Supreme Court.

The Majority opinion in the 5-to-4 decision of , Florida v. Jardines, No. 11-564 was written by Justice Antonin Scalia. He said the Fourth Amendment, which prohibits unreasonable searches, is particularly concerned with the home and its immediate surroundings. Allowing a dog on a six-foot leash to roam outside a residence, he said, was “an unlicensed physical intrusion” that was different in kind from visits from, say, salesmen, Girl Scouts or trick-or-treaters.

“To find a visitor knocking on the door is routine (even if sometimes unwelcome),” Justice Scalia wrote. “To spot that same visitor exploring the front porch with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.”

In dissent, Justice Samuel A. Alito Jr. wrote, “A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public,” Justice Alito wrote, “and a reasonable person will not count on the strength of those odors remaining within the range that, while detectable by a dog, cannot be smelled by a human.”

Wednesday, March 27, 2013

Pa Supreme Court grants juvenile lifer new sentencing

The Pennsylvania Supreme Court ordered the resentencing of a Pennsylvania man who is serving a life in prison without the possibility of parole for a murder he committed when he was 14, reported The Harrisburg Patriot-News.

The high court's decision doesn't guarantee that Qu'eed Batts won't again be sentenced to life in prison without parole when he is resentenced in Northampton County. But it could result in Batts receiving a sentence that would some day allow him to be free.

The Supreme Court decision in the Batts case reflects an array of recent U.S. Supreme Court rulings that curb the most serious penalties from being imposed on juveniles who commit murder. A change in state law also influenced the outcome of Batts' appeal.

The state's highest court decided to hear Batts' appeal after the state Superior Court upheld his life without parole penalty.

Like several other states, Pennsylvania's Legislature reacted to that U.S. Supreme Court's ruling by adopting a new law that removes mandatory life sentencing for killers who are minors.

That law, enacted in October, still permits the imposition of life without parole sentences on young murderers, but requires judges to consider several factors, including the killer's maturity, criminal sophistication and likelihood for rehabilitation, before deciding on a penalty.

Alternative sentences of 25 years to life in prison are allowed for killers who were under 15 when they committed their crimes. Those who were 15 to 18 when they killed can be subjected to alternate prison sentences of 35 years to life under the new statute.

That law applies automatically only to killers who were convicted since the U.S. Supreme Court's June 2012 ruling, however.

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Pennsylvania study casts doubt on halfway-houses

A groundbreaking study in Pennsylvania is casting serious doubt on the effectiveness of the halfway-house model, concluding that inmates who spent time in these facilities were more likely to return to crime than inmates who were released directly to the street, reported the New York Times.

The findings startled the administration of Gov. Tom Corbett, which responded last month by drastically overhauling state contracts with the companies that run the 38 private halfway houses in Pennsylvania. The system costs more than $110 million annually.

Pennsylvania’s corrections secretary, John E. Wetzel, who oversaw the study, called the system “an abject failure.”

“The focus has been on filling up beds,” Wetzel told the Times. “It hasn’t been on producing good outcomes.”

The state now plans to link payments to the companies to their success at rehabilitating the thousands of inmates who go through halfway houses in Pennsylvania annually. 

The study by the Pennsylvania Corrections Department found that 67 percent of inmates sent to halfway houses were rearrested or sent back to prison within three years, compared with 60 percent of inmates who were released to the streets.

The study examined 38 privately run and 14 state-run halfway houses. The results for both categories were discouraging, Wetzel told the Times.

He said researchers had not pinpointed the reasons, but he said he suspected that some halfway houses were not providing adequate services.

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Tuesday, March 26, 2013

Ohio carries out its 50th execution since 1999

The 4th Execution of 2013

Frederick Treesh, a man who fatally shot an adult bookstore security guard in 1994 at the end of a multistate crime spree, was executed in Ohio on March 6, 2013, reported The Associated Press.

Treesh, 48, received a single powerful dose of pentobarbital and was pronounced dead at 10:37 a.m. by Donald Morgan, warden of the Southern Ohio Correctional Facility in Lucasville.

Treesh was sentenced to die for killing Henry Dupree in Eastlake, east of Cleveland, on Aug. 27, 1994.

In a last statement, Treesh apologized for the death of Dupree, but said he wouldn't say he was sorry to family members of a video store clerk killed in Michigan who were witnessing the execution.

"I've never been tried, I've never been charged," he said.

After a few more comments he said, "If you want me murdered, just say it."

Treesh was the 50th inmate put to death by the state since it resumed executions in 1999.

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Maryland set to repeal death penalty

Maryland is ser to become the 18th state to scrap the death penalty, the sixth since 2007 and the first south of the Mason-Dixon line, reported the Washington Post. The repeal, having now passed both houses of the General Assembly, is a major achievement for Gov. Martin O’Malley, who pushed hard for it, and for his fellow Democrats, who dominate the state ­legislature.

The measure replaces capital punishment with a life sentence without the possibility of parole; the governor is expected to sign the legislation in the coming weeks. Maryland voters are likely to have the last word if, as expected, death-penalty supporters collect enough signatures to petition the new law to referendum, probably in 2014.

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Parents of Sexually Assaulted Girl Sue Offender-Demanding He Buy Their House

The parents of a young Lehigh County, Pennsylvania girl who was sexually molested by their neighbor have sued the man in a bid to force him to buy their house, reported The Associated Press.

The child's parents said they don't want to live next to Oliver Beck and "are under duress to move." Their lawsuit, filed in Allentown, said his presence is "ultra-hazardous given the close proximity" of Beck to the victim and their two other daughters.

Beck, 65, pleaded guilty in September 2011 to indecent assault of a child under 13 and was sentenced to three to 23 months in prison. After his release, he moved back to his home near Emmaus, about 55 miles north of Philadelphia.

According to The Associated Press, the suit contends the plaintiff's house is now "virtually unmarketable" because their neighbor is a registered sex offender. They want Beck to buy their house for $350,000, which they say is the fair-market value plus fees and expenses related to moving to a new home.

Beck's lawyer has asked a judge to dismiss that portion of the suit, saying the law does not entitle the plaintiffs to force Beck to buy their home.

The parents and child are also suing Beck for monetary damages related to the assault. Beck's wife and mother, who owns an adjoining property, are named as co-defendants.

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Monday, March 25, 2013

Beaver Co. Sheriff Indicted, Removal from Office Unlikely

Today, Pennsylvania Attorney General Kathleen Kane announced charges against 65-year-old Beaver County Sheriff George David, according to The Associated Press.

David is in custody on charges including terroristic threats, witness intimidation, two counts of simple assault, three counts of intimidating a witness or victim, official oppression and obstructing an investigation all of the counts are misdemeanors.

The charges stem from length investigation by a state grand jury wherein allegations were made that he threatened to kill county Prothonotary Nancy Werme, county Central Services Director Mary Ann Ruskin, Beaver Countian webside operator John Paul Vranesevich and Times reporter J.D. Prose, reported thr Beaver County Times.

Even if convicted it will be difficult to remove David from office.  There are three ways to remove a public official from office:

Article II, Sec. 7 removal for an infamous crime.  This would not apply to the charges facing David.

The Article VI, Sec. 6 impeachment for misbehavior. This could occur when there is a breach of a positive statutory duty or the performance by a public official or a discretionary act with an improper or corrupt motive. This might work but must
Article VI, Sec. 7 removal by the governor for reasonable cause with two-third consent of the senate.

Both of the Article VI removals would require a trial in the senate.  An unlikely senerio to remove a county sheriff.

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Increasing a Sentence Sevenfold--'Vindictive'

In 2005, Richard Balsavage pleaded guilty to eight counts of sexually abusing children and admitted that he had pictures of his girlfriend's 2-year-old son posing naked. He served just over a year in prison and, shortly after his release, violated the terms of his probation.

When Richard Balsavage was put in front of Berks County Judge Steven Lieberman for a probation violation hearing, his probation officer, cellmate, sex-offender therapists and sex-offender treatment specialist offered "damning testimony," reported the Legal Intelligencer.

Judge Lieberman increased Balsavage's sentence twice.  The second time after an appeal the sentence was increased sevenfold.  The U.S. District Court said he clearly showed judicial vindictiveness.

"This case presents the rare situation in which it is not necessary to determine whether the presumption of vindictiveness applies because it is clear that the petitioner has met the 'exceedingly difficult' burden of proving actual vindictiveness," said U.S. District Judge Anita B. Brody of the Eastern District of Pennsylvania, granting Balsavage's habeas petition.

From the first hearing testimony, Lieberman concluded that Balsavage wouldn't be amenable to treatment.

 "'Only total confinement for a lengthy period of time will afford the community at large any hope of real protection from [Balsavage's] predatory behavior. And I believe that lengthy incarceration followed by lengthy supervision is also necessary to make sure that Mr. Balsavage continues to comply with treatment and to conform his behavior to societal norms,'" Lieberman said, according to Brody's opinion.

 Lieberman increased Balsavage's original sentence — nine to 23 months' imprisonment with seven years of probation — by a significant margin, making it three-and-a-half to seven years' imprisonment with 42 years of probation, the Legal Intelligencer.

The decision was successfully appealed and returned to Lieberman for resentencing. Before issuing a sentence--seven times longer than the one he had given at the first hearing--Lieberman reiterated his intent to protect the public by incarcerating Balsavage.

"The Gagnon judge actually stated, on the record at the resentencing hearing, that the increased sentence given to Balsavage was due to 'the fact that you appealed every decision and sentence this court ever imposed on you,'" Brody said, quoting Lieberman. Thus the basis for declaring the sentence vindictive.

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Sunday, March 24, 2013

Ohio's Prison Sold to Private Company "Dysfunctional"

A new report released last month on conditions inside the 1,700-bed Lake Erie Correctional Institution describes a tableau of dysfunction, lending confirmation to two previous audits that identified widespread problems at the facility, according to The Huffington Post. The report describes gang-related violence so commonplace and drug use so rampant that many guards are afraid to intervene -- instead, they are leaving their jobs at an alarming rate.

In interviews with The Huffington Post, current and former correctional officers at the Lake Erie prison confirmed the findings in the state report while describing their own fears about going to work at the institution.

"It was common for us to speak about who was going to die first," Paul Reynolds, a former correctional officer at Lake Erie who says he was released last year because of disagreements with CCA management, told The Huffington Post. "They were afraid to get sued for any little thing, so management basically tied our hands on everything. Within three months, we lost that prison to those inmates."

Some inmates have become so afraid that they are requesting to go into isolation -- being locked up 23 hours a day -- just to protect themselves from gangs, the employee said. The number of prisoners in the segregation unit this week was at an all-time high, according to the employee, a trend also noted in the inspection report.

The report's findings offer ammunition for those decrying the trend toward privatizing prisons -- not only in Ohio, but across much of the country -- as strapped communities seek to raise revenue and minimize costs by handing control of inmates to profit-making entities, reported The Huffington Post.

Corrections Corporation of America, which bought the Lake Erie institution in late 2011 for $73 million, has touted the purchase as a model of the benefits of prison privatization, arguing that it saves state taxpayers money while elevating the welfare of inmates.

CCA's purchase of the Lake Erie institution was the first-ever sale of a public prison to a private firm. The company took over operations in January 2012, and used the Ohio prison purchase in a nationwide sales pitch urging other states to sell off prisons as a way generate cash and trim budgets with CCA's "safe and efficient" management approach.

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Saturday, March 23, 2013

GateHouse: Judges challenge mandatory retirement

Matthew T. Mangino
GateHouse News Service
March 22, 2013

How old is too old to be a judge? Thirty-three states have mandatory retirement for judges according to the National Center for State Courts. The age is generally between 70 and 75.

For nearly 20 years state legislatures across the country have tried to increase or abolish mandatory retirement for judges, with mixed results. Since 1990, at least 11 states have tinkered with mandatory judicial retirement. In fact, the Virginia legislature has tried unsuccessfully for seven consecutive years to increase the mandatory retirement age for judges.

Federal judges have no age restrictions. According to an investigation by ProPublica, as of January 2011, 12 percent of federal judges were over age 80 — that is about 150 judges — and 11 judges were over the age of 90.

Some federal judges have raised concerns and one has taken action. Judge Frank Easterbrook, the chief judge of the Seventh Circuit Court of Appeals, arranged for two colleagues to see neurologists and has even publicly called on lawyers to contact his chambers directly if they think a judge is exhibiting symptoms of dementia, reported ProPublica.

There appears to be ample research to support concern. According to one study, by age 70 most people are cognitively impaired and half of all 85-years-olds have dementia. The cognitive functions most affected by age are attention, memory, language processing and decision-making — fundamental skills in any courtroom.

There is no arguing that some older people outperform some younger people. Just as some juveniles cognitively and emotionally outperform adults. Yet, there is no hew and cry to lower the drinking age or voting age. In fact, the science of brain development has been successfully used to eliminate the death penalty and life in prison, in some circumstances, for juveniles.

In most states, judges campaigned for office knowing their terms were limited by mandatory retirement. Now judges want to change the rules. This is reminiscent of congressmen who ran for office in 1994 under the Contract with America. They pledged to self-impose term limits and then decided to run for re-election in contravention of those pledges. Most won re-election.

Pennsylvania judges are so sure that the state’s mandatory retirement age is discriminatory they’re suing in state and federal court. The judges allege that the mandatory retirement age amounts to age discrimination and violates the equal protection clause under the 14th Amendment of the U.S. Constitution.

There is a lot on the line for Pennsylvania trial judges and appellate judges — four of the seven state Supreme Court justices will reach 70 in the next five years.

 In New York the state constitution must be amended to increase the retirement age for judges. In 2011, the legislature approved an increase to the mandatory retirement age for appellate judges from age 70 to 80 and to allow trial judges to be certified for two-year periods between ages 70 and 80. The bill must be passed again this year and then placed on the ballot in 2014 to amend the constitution.

Some suggest the system is flawed. Most states support the continued work of judges after their mandatory retirement. According to the Wall Street Journal, retired judges are often allowed to return to the bench on senior status after being forced into retirement. "It doesn't make any sense," said 72-year-old Michigan Circuit Judge Peter Maceroni, who is being forced to retire at the end of the year. "I don't have a health issue, I'm in relatively good shape, and I want to keep working."

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 and follow him on Twitter at @MatthewTMangino.

Friday, March 22, 2013

The Cautionary Instruction: The death penalty as political device

The Pittsburgh Post-Gazette/Ipso Facto
March 22, 2013

The death penalty continues to have strong support. A January Gallup Poll found that 63 percent of Americans support capital punishment.

The death penalty remains popular among politicians as well. The death penalty can be manipulated to make one politician look tough and another look compassionate. This is evident by a series of coast to coast news stories about the death penalty all from a single day last week -- March 13, 2013.

Law enforcement leaders from across Delaware recently declared their firm opposition to a Senate bill that would abolish capital punishment and commute the sentences of death row inmates to life in prison.

The Police Chiefs’ Council argued Delaware’s death penalty has not been applied in a racially discriminatory fashion and that no death row conviction has ever been overturned in the state -- though capital sentences have been downgraded to life in prison upon appeal.

Supporters of Maryland Gov. Martin O’Malley’s bill to repeal the death penalty turned back 18 proposed amendments in the House of Delegates, including attempts to keep capital punishment on the books for cop killers, child abductors and terrorists.

The two-hour debate set the stage for a successful vote in the House last Friday. O’Malley is set to sign the bill making Maryland the 18th state to abolish the death penalty.

“You can come up with a never-ending parade of horrible crimes ... but the fact remains that the death penalty is ineffective,” O’Malley said.

"Victims' families have suffered for far too long and it's time to stop the legal wrangling and bring them peace and closure, finally, in their cases," said North Carolina State Sen. Thom Goolsby. "We owe it to these families of murder victims across North Carolina to impose the punishment that our laws require."

Goolsby's bill requires the state's attorney general to report to legislators each year on the status of all death penalty appeals in the state and establish a timeline for execution when those appeals are exhausted. It also includes doing away with the state's Racial Justice Act.

Florida is the only state that allows juries to recommend death sentences by a simple majority vote. In nearly every other state, the jury vote must be unanimous. Only one in five death sentences gets a unanimous verdict in Florida.

Legislation that would require unanimous death-sentence recommendations has had little discussion in the legislature until recently. A bill sponsored by Sen. Thad Altman would change that, requiring unanimous sentencing recommendations in capital cases.

In the state of Washington a bill was introduced this year to replace the death penalty with life in prison. State Rep. Maureen Walsh said she supports the measure because execution lets convicted murderers off too easy.

"I'd rather they sit in jail the rest of their lives, think about what they've done, live in that hell for the rest of their lives," she said. "It's just way too easy to kill them and be done with it."

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Thursday, March 21, 2013

W. Va. looking to create uniform policy for eyewitness identification

West Virginia lawmakers are pushing law enforcement agencies to create uniform rules for obtaining and using eyewitness identification, according to the West Virginia Gazette.

Last month, State Sen. Bill Laird introduced a bill that would require every police department in the state to have a written policy for "lineups."

The bill calls for investigators to keep a written or video record of each lineup that includes the date and time of the lineup, the names of every person in the lineup, and any words the witness uses to describe the person that supposedly committed the crime.

The legislation also strongly suggests that police agencies conduct "blind" lineups, or lineups conducted by an investigator that does not know the identity of the suspect, reported the Gazette.

But while the bill requires departments to have a written policy in place, police agencies can still implement their own protocol.

Eyewitness misidentification is one of the largest causes of wrongful convictions, according to the Innocence Project, a national nonprofit group that uses DNA testing to fight for prisoners who claim innocence.

According to the Gazette, of the first 239 people that the Innocence Project has helped exonerate, 75 percent were victims of witnesses who pointed out the wrong suspect. In most of those instances, the false identification was attributed to either a faulty live lineup, or photo array. During lineups, investigators sometimes give subtle hints to witnesses, either intentionally or unintentionally, that lead them to select the wrong suspect.

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Wednesday, March 20, 2013

Accused killer of parents wants delay to get mother's $1 million estate

A Montgomery County, Pennsylvania man accused of killing his parents and twin brother is asking for his trial to be delayed while he tries to get access to his dead mother’s $1 million estate to pay for his defense. The request was made by lawyer Joseph J. Hylan, the accused killer's court-appointed guardian, reported the Delaware County Daily Times.

“This tactic should be denied by this court. To do otherwise would set a precedent whereby any attorney who is extraneously connected to a defendant could attempt to halt a criminal trial for any number of reasons,” Montgomery County First Assistant District Attorney Kevin R. Steele and co-prosecutor Nathan J. Schadler wrote in court papers fighting the request made on behalf of accused triple killer Joseph C. McAndrew Jr.

Steele and Schadler claimed the request for a stay of the trial is a “proposed intrusion” by Hylan, McAndrew’s court-appointed guardian, and if granted “would set a disastrous precedent.” Prosecutors maintain Hylan has “no standing” to seek a delay in the criminal proceedings, reported the Daily Times.

“This attempted maneuver is analogous to a parent running into their adult child’s criminal trial and requesting the court halt the criminal proceedings. If permitted, one can only imagine the type of tailspin this practice would send our criminal justice system into,” Steele and Schadler wrote.

In a strange sort of way this case bring to mind the story attributed to Abraham Lincoln when he complained about the guy who kills his parents and then asks for mercy because he is an orphan.

McAndrews is awaiting trial on multiple charges of first- and third-degree murder in connection with a March 5, 2011, incident during which he allegedly wielded a sword to stab to death his parents, 70-year-old Joseph C. McAndrew, 64-year-old Susan C. McAndrew, and twin brother James McAndrew, according to the Daily Times.

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Tuesday, March 19, 2013

Maine Commission wants to raise indigent defense fees

Court appointed criminal defense attorneys are scheduled to get a raise in Maine, but the start date and even the amount remain fuzzy because of state budget woes, reported the Kennebec Journal.

The funding shortage has raised concerns that there won't be enough qualified lawyers to represent indigent defendants, who are those who face jail time and can't afford a lawyer, so they're appointed one who's paid through a state program.

The Maine Commission on Indigent Legal Services, an independent board charged with setting fees for that work, recently approved a $70 per hour fee to begin July 1 and another increase to $75 an hour a year later, reported the Journal.

Now, the 465 lawyers registered with the commission receive $50 per hour, a rate set in 1999. In contrast, the hourly rate for work as a federal public defender is $125 an hour.

A bill in the Legislature proposes to start a $70 an hour wage Oct. 1 and move it to $75 an hour on July 1, 2015.

The governor's budget proposes a $55 an hour rate -- a 10 percent raise -- in the 2014-2015 budget.

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Monday, March 18, 2013

Corbett opposes judges' law suits attacking mandatory retirement

Governor Tom Corbett is asking that law suits filed by several Pennsylvania judges in federal court trying to overturn a state law requiring judges to retire at age 70 be dismissed, reported the Harrisburg Patriot-News.

The arguments the judges are making have already been weighed, and found wanting, in other U.S. court cases, Corbett contends in asking U.S. Middle District Judge John E. Jones III to dismiss the challenge to the Pennsylvania retirement mandate.

Eight county judges from across the state filed two lawsuits last year in bids to kill the retirement mandate. Retirement at that age has been mandatory for Pennsylvania judges under an amendment to the state constitution that was adopted 43 years ago.

The judges argue in their suits, which have been consolidated into a single case, that the retirement law constitutes age discrimination and violates the bedrock tenets of the federal and state constitutions.
They claim there is no legitimate reason judges should have to quit at 70 and that many judges actually become better at their jobs as they grow older and gain experience, reported the Patriot-News.

Corbett, who is being defended in the case by the attorney general's office, is countering that prior rulings by the U.S. Supreme Court and the U.S. Third Circuit Court of Appeals buttress Pennsylvania's judicial retirement law.

Specifically, the governor cites a Supreme Court decision in a case challenging such a law in Missouri.

The nation's highest court found in the Missouri case that the retirement mandate didn't violate the U.S. Constitution's equal protection clause, Corbett noted. Also, he said, the court found that "rather than determining fitness (of judges) through individualized testing, a state may rationally choose instead to set a maximum age limitation," reported the Patriot-News.

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Sunday, March 17, 2013

Third Circuit: AG did not have 'good cause' to waive APA on Walsh Act

In 2001, Billy Joe Reynolds was convicted of a sex offense in Missouri. After he was released from prison, Reynolds registered as a sex offender in Missouri. However, in 2007 he moved to Pennsylvania and failed to register.

Reynolds was indicted and pleaded guilty to a registration violation pursuant to the Adam Walsh Act. He immediately appealed the conviction, challenging the constitutionality of the Walsh Act, suggesting that the attorney general did not follow the Administrative Procedures Act (APA) when establishing an interim rule making the law retroactive.

The Third Circuit upheld the conviction. The court determined that Reynolds did not have standing to challenge the attorney general’s interim rule, finding the Walsh Act itself required Reynolds to update his information, not the subsequent interim rule issued by the attorney general.

The U.S Supreme Court disagreed with the Third Circuit and sent Reynolds’ case back to the appeals court. Reynolds does indeed have standing and the appeals court has been ordered to get to the merits of his claim.

"The question before us is whether the act requires pre-act offenders to register before the attorney general validly specifies that the act's registration provisions apply to them," Justice Stephen Breyer wrote for the court. "We believe that it does not."

Last week, the Third Circuit overturned Reynolds' conviction. The Court found that the Attorney General did not have good cause to waive the notice and comment provisions of APA before rendering a rule that said the act was retroactive.

There is difference of opinion among the various circuits on whether the interim rule was properly implemented. Ultimately that may result in this issue returning to the U.S. Supreme Court.

The decision will only affect those offenders who were convicted for not complying with registration while interim rule was in effect. It is unclear how may sex offenders in Pennsylvania and around the country are affected by the various circuit court rulings.

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Saturday, March 16, 2013

GateHouse: Gideon v. Wainwright, 50 years later

Matthew T. Mangino
GateHouse News Service
March 15, 2013

This year marks the 50th anniversary of the landmark U.S. Supreme Court decision Gideon v. Wainwright. In Gideon, the high court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.

The decision is recognized as one of the most important of the 20th century. The decision brought into the national lexicon a line known by anyone who has ever watched a television crime drama, “[Y]ou have the right to an attorney if you cannot afford an attorney, one will be appointed for you. …”

Did the Gideon decision alter the legal landscape a half-century ago?
The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense."
In 1932, the U.S. Supreme Court ruled that the U.S. Constitution required defendants in capital cases be given access to counsel.Ten years later court refused to extend the right to counsel to criminal charges other that capital murder.
Then came Clarence Earl Gideon, a 51-year-old drifter and petty-thief. He was charged with breaking and entering in Florida. The charge was a felony and when Gideon first appeared before the court he was without funds, without counsel and he asked the court to appoint him a lawyer. The judge refused.
Gideon represented himself, was convicted and appealed to the Florida Supreme Court.
His appeal was denied and his case made its way to the U.S. Supreme Court. The U.S. Supreme Court appointed a very capable attorney, Abe Fortas to represent Gideon. Fortas would one day take a seat on the Supreme Court.
Fortas told the Court that the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges.
He also pointed out that 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, twenty-two state attorneys general joined Gideon in urging the Court to establish an absolute constitutional right to counsel in criminal cases.
Only five states—Florida, Alabama, Mississippi, North Carolina and South Carolina—did not provide counsel for indigent defendants.
Justice George Sutherland wrote 30 years before Gideon, “Even the intelligent and educated layman has small and sometimes no skill in the science of law.” Fortas argued in Gideon, “You cannot have a fair trial without counsel."
The concept was not new. More than a century earlier Abraham Lincoln said, “A person who represents himself has a fool for a client.” Fortas also ably pointed out that when Clarence Darrow, one of the greatest trial lawyers in American jurisprudence, was charged with a crime, “he hired a lawyer.”
By modern standards Justice Hugo Black’s opinion in Gideon was not very long, only about 2,500 words. In contrast, the opinion this summer regarding President Obama’s health care plan, including dissenting opinions, was 392 pages.
Fifty years after Gideon the focus has evolved from merely the right to counsel— to the right to effective representation. That representation has turned from insuring a fair trial to insuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.
The more important issue today—as states and local municipalities struggle with declining budget revenues—how will public defenders and court appointed counsel react to fewer dollars for indigent defense?
Will Gideon’s promise of fairness and justice be strained as revenue disappears?

Friday, March 15, 2013

The Cautionary Instruction: The trial penalty

The Pittsburgh Post-Gazette/Ipso Facto
March 15, 2013

In the courtroom and during plea negotiations, many practitioners warn of the “trial penalty.” Also known as the trial tax, 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.

In some jurisdictions, including 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.

Ohio State University Law Professor Douglas A. Berman wrote recently that if the Department of Justice was truly concerned about unwarranted sentencing disparity in financial fraud cases… (rather than with)…defendants who have the temerity to exercise their trial rights…then federal prosecutors ought to consider supporting Ms. Morgan's sentencing appeal.”

Marian Morgan and her husband John were arrested for a $28 million Ponzi scheme. John plea bargained for 10 years. Marian went to trial and got a 35 year sentence.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” said Rachel Barkow, a professor of law at New York University. “When you have that attitude,” she told the New York Times, “you penalize people who have the nerve to go to trial.”

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.

What if the penalty after trial was, on average, actually less than pleading guilty? One expert suggests that post-trial sentences are lower than plea bargains. University of Pennsylvania economist David S. Abrams’ found, “The empirical work in this article points to longer expected sentences from plea bargains than from trial. This is in sharp contrast to the ‘trial penalty’ theory.”

Few share Professor Abrams opinion. In fact, research done by Professor Candace McCoy of Rutgers University, found that sentences after trial were as much at nine times longer than sentences for similar offenders who plead guilty.

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Thursday, March 14, 2013

Oklahoma executes man convicted of multiple homicides

The 5th Execution of 2013

Steven Ray Thacker was convicted of committing three murders in three states during a 10-day rampage in 1999, reported the Daily Oklahoman.  He was executed on March 12, 2013 in Oklahoma for one of the murders, the  death of a woman whose credit cards he used to buy Christmas presents for his family.

Thacker used his final statement to apologize to his victims' relatives, several of whom witnessed his execution from an adjacent room at the Oklahoma State Penitentiary in McAlester.

“I don't deserve it, but as God has forgiven me, I hope you will forgive me for the pain I've caused,” Thacker said while strapped to a hospital gurney. He then thanked his family and friends for their support, and added: “An eternity in heaven is mine."

Thacker then winked at his stepfather, Donald Johnston, who silently nodded back at him. Thacker was pronounced dead at 6:10 p.m.

Thacker, a laid-off plumber's apprentice, was convicted of abducting 25-year-old Laci Dawn Hill from her home at Bixby after going there under the guise of looking at a pool table she had advertised for sale. Her body was found six days later at a cabin in Mayes County, east of Tulsa. She had been raped and stabbed.

According to prosecutors, Thacker fled Oklahoma, stole a car in Springfield, Mo., and broke into a Missouri home looking for money. Forrest Reed Boyd arrived at his Aldrich home mid-theft and was stabbed to death by Thacker, who received a life sentence in that case, reported the Oklahoman.

Thacker then took Boyd's car and drove to Dyersburg, Tenn., where he killed Ray Patterson after Patterson arrived to help tow the car and discovered Thacker possessed stolen credit cards. A Tennessee court sentenced Thacker to death for that murder.

While searching for Thacker, the FBI said in late 1999 that he had been recently laid off from his job as a plumber's apprentice. Thacker's father-in-law Keith Roberson told the Tulsa World newspaper at the time that Thacker didn't have much money to spend on his family but suddenly seemed flush with cassh

“We just can't believe how he sat here at Christmas with us and carried on like nothing happened,” Roberson told the newspaper.

Thacker waived his right to ask for clemency from the Oklahoma Pardon and Parole Board last month. Courts previously rejected Thacker's argument that he has a bipolar disorder and shouldn't be executed.

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Delaware takes up repeal of capital punishment

A bipartisan group of Delaware lawmakers is teaming up to repeal the death penalty, according to The News Journal.

Senate Minority Leader Gary Simpson is backing the bill. But significant opposition is expected from the Delaware Police Chiefs’ Council and the Delaware State Troopers Association, which say those convicted of killing police officers should face capital punishment.

Gov. Jack Markell would not take a position on the bill when asked recently, unlike his Democratic counterpart in Maryland, Gov. Martin O’Malley, who has lent strong support to the repeal effort in his state.

The arguments for repeal are:

• Capital punishment does not deter violent crime.

• It is costly for the state to defend and prosecute.

• Punishment is morally flawed.

Attorney General Beau Biden has repeatedly sought the death penalty in first-degree murder cases, and appears likely to oppose the repeal effort. Asked for a statement on the bill, Biden said through a spokesman that “my position has not changed,” reported The News Journal.

Since 1992, the state has executed 16 convicted killers, all but one by lethal injection. Billy Bailey, who was convicted of killing an elderly couple in Cheswold, chose to be hanged in January 1996. The latest put to death was Shannon Johnson, who was executed last April for killing Cameron Hamlin in 2006.

Seventeen convicted killers sitting on Delaware’s death row, some with convictions dating back more than a decade, would see their sentences commuted if the bill were to pass. They instead would face life imprisonment without the possibility of parole.

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Wednesday, March 13, 2013

Western Pennsylvania overdose deaths soar

Pharmacists in Pennsylvania are seeing prescriptions for narcotic painkillers written in other states that have clamped down on addicts skirting the system to get drugs under the radar of authorities, reported the Observer-Reporter.

State Rep. Brandon Neuman is coauthoring an amendment to state law to help prevent addicts from easily using cash to pay for prescription narcotics they get filled by traveling to many different physicians and pharmacies without detection in Pennsylvania.

Ohio runs every prescription through a computerized central monitoring program to identify physicians and customers who abuse the system. He said he supports a similar program lawmakers in Harrisburg are considering to address an alarming rate of prescription drug overdose deaths in Pennsylvania.

House Bill 317 would establish the Pennsylvania Accountability Monitoring System, a narcotics database that raises a red flag for doctors and pharmacists when they are met with a patient or customer who has already received an adequate supply of Schedule II drugs containing opiates or synthetic opiates. The bill, introduced by state Rep. Gene DiGirolamo, R-Bensalem, has moved out of committee and is ready for a vote on the House floor, where it appears to have broad support, reported the Observer-Reporter.

Washington County Coroner Tim Warco investigated 40 overdose deaths last year, with seven of them involving heroin alone or mixed with other drugs. Seventeen of the deaths involved the used of opiates, Warco’s 2012 annual report indicates.

There were 46 overdose deaths the previous year in Washington County, where just two people died in that fashion in 1992 and 28 in 2003.

Greene County Coroner Gregory Rohanna said he doesn’t keep cause-of-death records.

The Westmoreland County coroner’s office has released its own alarming statistics on drug overdose deaths, stating it had investigated 16 such cases in the first six weeks on this year, five of which were investigated within one week’s time. Coroner Ken Bacha stated he investigated a record-setting 71 drug overdose deaths in 2012, according to the Observer-Reporter.

The national average for overdose deaths a year is 10 per 100,000 people.

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Tuesday, March 12, 2013

Supreme Court Takes up DNA Collection at Arrest

The Pennsylvania Law Weekly
March 12, 2013

Last month, the U.S. Supreme Court heard arguments in a case that challenges the constitutionality of collecting DNA samples from individuals charged with a crime.

Justice Samuel A. Alito Jr. described the case of Maryland v. King, No. 12-207, as "perhaps the most important criminal procedure case that this court has heard in decades."

Proponents of the law — and there are many — contend there is no difference between DNA testing and fingerprinting. Twenty-eight states and the federal government have enacted laws that provide for automatic DNA collection from people at the time of their arrest. All 50 states and the federal government collect DNA from convicted criminals.

Last year, the Pennsylvania General Assembly took up Senate Bill 775, which would have required DNA samples from individuals upon arrest for certain crimes.

The bill would have required law enforcement to obtain DNA samples as part of an arrest, similar to fingerprinting. The sample would be entered in Pennsylvania's DNA database, as well as the federal database. If the person were acquitted, the state would be required to remove the sample from its database.

Interestingly, although 49 states and the federal government joined with Maryland in advocating for the constitutionality of post-arrest DNA collection, the Pennsylvania State Police said, with consternation, that SB 775 would have an enormous impact on the state's DNA lab. The bill stalled in the state House of Representatives.

Collecting a DNA sample from an arrestee — often called a "DNA fingerprint" — provides a record of the number of times specific sequences of genetic material repeat themselves at 13 locations on the DNA molecule. That string of numbers, according to the United States' amicus brief, "is a powerful tool for identification because of the infinitesimal likelihood (less than one in 10 billion) that two individuals who are not identical twins will share the same number of copies of the same material at all 13 loci."

The FBI has a coordinated system of federal, state and local DNA databases known as CODIS — Combined DNA Index System. CODIS has more than 10 million DNA profiles.

The case before the Supreme Court grows out of the Maryland arrest of Alonzo King in 2009 on assault charges. Maryland had a state law that permitted police to collect King's DNA. The sample was submitted to CODIS.

Eventually King's DNA was found to match DNA recovered during an investigation of the rape of a 53-year-old woman. King was subsequently tried for the rape and sentenced to life in prison.

The conviction was overturned by the Maryland Court of Appeals. The court ruled that authorizing DNA collection from people who have been arrested violated the Fourth Amendment.

In a surprising glimpse into the leanings of the court, conservative Justice Antonin Scalia said to Maryland Chief Deputy Attorney General Katherine Winfree, after she touted the successful prosecutions in her state that flowed from post-arrest DNA collections, "Well, that's really good. I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too."

King's lawyer, Kannon K. Shanmugam, told the justices there's a "legitimate expectation of privacy" in the contents of an individual's DNA.

"An individual's DNA contains far more information and far more personal information than an individual's fingerprints," Shanmugam said.

He went on to argue, "The better view is that fingerprinting is not a search, and to the extent that this court has addressed the question it has suggested that fingerprinting is not a search because an individual has no expectation of privacy in their fingerprints because their fingers are constantly exposed."

Some are concerned that after collecting DNA, the government might choose to profile a suspect's entire genome, looking for a predisposition to violence that could be used to deny a person bail or increase the length of a sentence.

That is not so farfetched. The New York Times recently reported that researchers intend to study the DNA of the Newtown, Conn., school shooter, Adam Lanza. According to the Times, scientists "could look at all of Mr. Lanza's genes, searching for something unusual like gene duplications or deletions or unexpected mutations ... in an extended search for aberrations that could determine which genes are active and how active they are."

Some scientists are skeptical.

"It is almost inconceivable that there is a common genetic factor" to be found in mass murderers, Dr. Robert C. Green, a geneticist and neurologist at Harvard Medical School, told the Times. "I think it says more about us that we wish there was something like this. We wish there was an explanation."

Shanmugam noted during his argument, as described by National Public Radio's Nina Totenberg, that a complete DNA analysis can reveal a "treasure trove" of information about an individual's medical and personal history. Allowing the state to have access to the information, without a warrant or some individualized suspicion, he argued, is like loading an information gun to invade people's privacy.

Should we protect criminals who leave their DNA at a crime scene under the premise that authorities may someday use their DNA for more than matching, maybe even profiling the accused for future dangerousness?

Future dangerousness is already considered in a number of settings. Pennsylvania's sentencing guidelines, as they currently exist, are a crude form of risk assessment — prior record is the best indicator of future criminal conduct. Counties use risk assessments for bail determinations; the parole board uses risk assessment to make parole decisions.

Pennsylvania will soon incorporate risk assessment into the sentence guidelines. Forecasting future dangerousness has already found a place in the criminal justice system.

Scalia's left-leaning concerns aside, it appears that a national consensus exists in favor of DNA collection at the time of arrest. For, as Alito noted, "This is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy." 

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Monday, March 11, 2013

Murder in D.C. near historic lows

Last year, Washington, D.C. recorded the fewest killings in a half-century, according to the Washington Post.

The District had 88 killings in 2012, a milestone for D.C. Police Chief Cathy L. Lanier, whose long-standing goal has been fewer than 100 homicides. As recently as 2009, the District had 140 killings. In 2011, there were 108.

In Prince George’s County, where crime dropped in nearly every category, there were 63 homicides, down from 97 in 2011, a harkening back to the 1980s, when the county had more farmland than urban centers or upscale subdivisions, reported the Post.

Police point to several reasons for the decrease, which has been part of a years-long national trend in some major cities across the country.Authorities have broken up dozens of violent gangs, seized thousands of guns, used technology to monitor the streets and directed additional resources to high-crime areas.

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Sunday, March 10, 2013

Does age matter for judges?

The Youngstown Vindicator
March 10, 2013

How old is too old to be a judge? Thirty-three states have mandatory retirement for judges, according to the National Center for State Courts. The age is generally between 70 and 75.

For nearly 20 years state legislatures across the country have tried to increase or abolish mandatory retirement for judges, with mixed results. Since 1990, at least 11 states have tinkered with mandatory judicial retirement including Pennsylvania and Ohio. In fact, the Virginia Legislature has tried unsuccessfully for seven consecutive years to increase the mandatory retirement age for judges.

Federal judges have no age restrictions. According to an investigation by ProPublica, as of January 2011, 12 percent of federal judges were over age 80 — that is about 150 judges — and 11 judges were over the age of 90.

Neurological exams

Some federal judges have raised concerns, and one has taken action. Judge Frank Easterbrook, the chief judge of the Seventh Circuit Court of Appeals, arranged for two colleagues to see neurologists and has even publicly called on lawyers to contact his chambers directly if they think a judge is exhibiting symptoms of dementia.

There appears to be ample research to support concern. According to one study, by age 70, most people are cognitively impaired and half of all 85-years-olds have dementia. The cognitive functions most affected by age are attention, memory, language processing and decision making — fundamental skills in any courtroom.

There is no arguing that some older people outperform some younger people, just as some juveniles cognitively and emotionally outperform adults. There is no hew and cry to lower the drinking age or voting age, in fact the science of brain development has been successfully used to eliminate the death penalty and life in prison in some circumstances for juveniles.

Judges campaigned for office knowing their terms were limited by mandatory retirement. Now judges want to change the rules. This is reminiscent of congressmen who ran for office in 1994 under the Contract with America. They pledged to self-impose term limits and then decided to run for re-election in contravention of those pledges. Most won re-election.

Pennsylvania judges are so sure that the state’s mandatory retirement age is discriminatory they’re suing in state and federal court. The judges allege that the mandatory retirement age amounts to age discrimination and violates the equal protection clause under the 14th Amendment of the U.S. Constitution.

There are two separate pieces of legislation in the Pennsylvania General Assembly to deal with mandatory retirement. A bill in the House would increase the mandatory retirement age from 70 to 75. A Senate bill would eliminate altogether the mandatory retirement age.

There is a lot on the line for Pennsylvania trial judges and appellate judges — four of the seven state Supreme Court justices will reach 70 in the next five years.

According to Stateline Magazine, the only way to change the retirement age of judges in Pennsylvania is to change the constitution, and that is a long shot. A change in the state constitution requires that an identical bill pass both chambers of the Legislature two sessions in a row. The measure must then win a popular vote in a statewide election. The earliest either of these provisions could be on the ballot is 2015.

Ballot measure

Things are even murkier in Ohio. Forty-five years ago Ohio voters amended the state constitution to prohibit judicial candidates from taking office once they turn 70, although they can serve the remainder of their term. In 2011, a ballot measure would have extended the age to 76.

As the election rolled around, Ohio Supreme Court Chief Justice Maureen O’Connor told the Columbus Dispatch, “This arbitrary age limit eliminates some of our most-experienced judges from serving Ohio and administering justice fairly and impartially.”

Ohio voters didn’t buy it. The measure lost by more than 800,000 votes.

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Saturday, March 9, 2013

GateHouse: Execution points to need for the death penalty

Matthew T. Mangino
GateHouse News Service
March 8, 2013

Some would say that capital punishment is itself in the throes of death. The first execution carried out in the United States this year should give pause to anyone considering the abolition of the death penalty.

Five states have abolished the death penalty in just the last five years. Only nine states carried out executions in 2012, two fewer than the year before. There is strong support for outlawing the death penalty in Maryland, Montana and New Hampshire. Oregon’s governor has stopped all executions in his state.

Although the 43 executions carried out in 2012 were identical to the number carried out in 2011, the number of new death sentences, 77, was the second lowest since the death penalty was reinstated in 1976. Three states traditionally known for strong law and order traditions — North Carolina, South Carolina and Virginia — did not have a single death penalty verdict in 2012.

A December 2012 Gallup Poll found that 63 percent of Americans support the death penalty, the second lowest percentage since 1978, significantly down from a high of 80 percent in 1994.

With that as a backdrop, Virginia executed Robert Charles Gleason Jr. on Jan. 16, 2013. Gleason is why America needs the death penalty.

Gleason was serving life in prison for the 2007 fatal shooting of a man in order to cover up his involvement in an illegal drug enterprise.

In 2009 he became frustrated with prison officials who refused to move Gleason’s 63-year-old cell mate who suffered from mental illness.

Gleason admitted to binding the cell mate, Harvey Watson, with torn bed sheets, beating him, taunting him about his impending death, shoving a urine soaked sponge in his face and a sock in his mouth, and finally strangling him with the torn bed sheets.

Gleason told authorities he concealed Watson’s body in his cell for fifteen hours, making excuses for Watson's failure to emerge. Gleason planned to dispose of the body in the garbage that was circulated to pick up food trays. Gleason was unsuccessful; prison personnel soon discovered Watson’s body. Gleason pled guilty making a full confession under oath. He revealed that the murder was planned to occur on the second anniversary of his prior killing.

Throughout the court proceedings, Gleason consistently made it clear that he had no remorse. He flaunted the fact that premeditated murder of an inmate and more than one murder within a three-year period were punishable by the death penalty in Virginia. He warned the court that he “already had a few [other] inmates lined up, just in case I didn't get the death penalty, that I was gonna take out.”

Following Watson's death, Gleason was moved to solitary confinement in Virginia's “supermax” Red Onion Prison. On July 28, 2010, Gleason was in a segregated recreation pen that shared a common wire fence with another inmate, Aaron Cooper. Gleason asked Cooper to try on a “religious necklace” that Gleason was making. Gleason proceeded to strangle Cooper through the wire fence, repeatedly choking Cooper “til he turned purple,” waiting “until his color came back, then [going] back again” until Cooper finally succumbed. Gleason laughed at the reaction of the other inmates. He then watched and mocked the prison staff attempting to revive Cooper.

Gleason was charged with capital murder. In 2011, he pled guilty to the murder of Cooper. He informed the court that he had deliberately targeted Cooper to make a point to the prosecutor that if he was not executed he would continue to kill.

The diabolical Gleason was defiant to the end. He requested to be executed by electrocution, his right in Virginia. His final words, in Irish Gaelic, “Pog mo thoin” – “kiss my ass.”

Gleason’s conduct seems to cry out for the death penalty.

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 and follow him on Twitter at @MatthewTMangino.

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Friday, March 8, 2013

The Cautionary Instruction: Incentivizing recidivism reduction may be tricky

The Pittsburgh Post-Gazette/Ipso Facto
March 8, 2013

Last week, Pennsylvania Secretary of Corrections John Wetzel released what he called a "landmark study" into recidivism rates at Pennsylvania’s correctional facilities. The news is not good - the overall recidivism rate within three years of release from prison is 60 percent.

One in 200 Pennsylvania adults is currently incarcerated in a state correctional institution. With the introduction of the Justice Reinvestment Initiative Pennsylvania has focused on reducing prison population and funneling the savings down to local authorities for policing, treatment and community supervision.

Recidivism is defined in three ways: Rearrest, the first instance of arrest after inmates are released from state prison; reincarceration, the first instance of returning to state prison after inmates are released from state prison; and overall recidivism, the first instance of any type of rearrest or reincarceration after inmates are released from state prison.

With overall recidivism as a baseline the state is voiding all the contracts with the 38 privately owned community corrections centers -- better known as half-way houses -- requiring each to rebid and making the new contracts performance-based.

Under the new contracts, if the overall recidivism rate for inmates passing through the center decline, the contractor will be paid a higher rate. Profit will be tied to public safety.

"They'll be required to maintain that baseline and will be incentivized if they reduce [recidivism,]" said Brett Bucklen director of planning, research and statistics for Pennsylvania's Department of Corrections.

If a facility is able to reduce overall recidivism rates by 10 percent, it will get paid more per offender.
"We want to measure performance. We want quantifiable performance," Bucklen said. The measurements will be conducted by the state, which will collect and compare all data.

The counties with the top five overall recidivism rates include two from western Pennsylvania -- Allegheny at 65.5 percent and Blair with 61.6 percent. The surrounding counties stack up like this: Lawrence, 56 percent; Beaver, 57 percent; Butler, 57 percent; Washington, 60 percent; and Westmoreland, 53 percent.

Holding community correction centers accountable for their performance when it comes to reducing overall recidivism has the feel of an evidence-based, sabermetric approach to reducing prison population and saving costs, but it has its risks.

The primary concern is the quality of the data. Community Correction Centers often seek outside intervention for assaultive behavior or other misconducts that could give rise to technical parole violations or criminal charges. Would there be less incentive to report such conduct to a parole agent or police officer if the report could have an impact on an incentive payment or the continuation of the contract.

What does this mean for public safety? A parolee, who continues her criminal thinking, possesses illegal drugs or manifests violent conduct should not be out of prison and on the street. The Department of Corrections needs to be vigilant in insuring that community correction vendors are not putting profits ahead of public safety.

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Thursday, March 7, 2013

Fewer young people behind bars

Fewer young people are behind bars than at any point since 1975, due in part to lower rates of juvenile crime and a shift away from interventions focused on long-term incarceration, reported the Christian Science Monitor.

The number of young people in a correction facility on a single day dropped from a high of 107,637 in 1995 to 70,792 in 2010, according to a new report from the Annie E. Casey Foundation that used data from the US Census Bureau.

The incarceration rate – the number of young people confined per 100,000 youths – dropped by 41 percent in the same period.

The trend might be stronger than the data show, says Bart Lubow, director of the foundation’s Juvenile Justice Strategy Group. Some of the biggest decreases in youth incarceration in some states have occurred in the past two years, and those numbers are not included in the report.

The main reasons behind the declining numbers:

• A shift in thinking about the best ways to handle kids who break the law.

• A sustained period of decreasing juvenile crime.

• Fiscal pressures on state governments that have many people – including conservatives who in the past espoused tough-on-crime policies – clamoring for less-expensive alternatives to mass incarceration.

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Wednesday, March 6, 2013

Kansas moves from 'the middle ages' on statute of limitations

Kansas lawmakers are considering increasing the statute of limitations for prosecuting sexual assaults and rape from five years after the crime or five years after the victim’s 18th birthday to 10 years after the crime or 10 years from when the victim turns 18.

About 20 states have no time limit for prosecuting rape, according to the Rape Abuse and Incest National Network. Kansas is among 10 states with limits of five years or less, although Kansas is among those with an exception that allows for prosecution within one year of a DNA match.

As research on the long term trauma endured by child victims of sexual assault became increasing available the Pennsylvania legislature moved to expand the statute of limitations for child sexual abuse twice in a little more than a decade.

Prior to 2002, the statute of limitations for pursuing criminal prosecution of child sexual assault was five years after the victims 18th birthday.

In 2002, the statute of limitations for child sexual abuse was extended to 12 years after the victim’s 18th birthday. In 2007, the statute of limitations was extended as part of a comprehensive package of statutes related to child abuse. As a result, the Commonwealth now has until the victim’s 50th birthday to file criminal charges for abuse that occurred before the victim turned 18.

Kyle Smith, deputy director of the Kansas Bureau of Investigation, said the state’s statute is left over from “the middle ages” when there were no fingerprints or DNA evidence in crimes. The state had a two-year statute of limitations. It was recently extended to five years.

“If it is a good case and we can prove the person did it… why on Earth would we let the criminals go free?”

He said the proposed law change won’t help past victims because it can’t be applied retroactively, but it will help future victims.

In Pennsylvania the new law applies to any case in which the statute of limitations had not yet expired before the law took effect. Pursuant to a 1988 Superior Court decision the time for prosecution may be extended by a legislative change if the prior period has not yet expired.

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Tuesday, March 5, 2013

New Hampshire seeks to repeal ‘stand your ground’ law

The New Hampshire Judiciary committee voted, 12-6, to recommend the full House pass a bill to repeal the state's 'stand your ground' law enacted in 2011, reported the Concord Monitor.

The repeal bill has aroused loud opposition from gun-rights activists and others, and hundreds turned out for a five-hour public hearing in January. But legislators said many of the messages  received are from out-of-staters.

In 2011, the then-Republican-led Legislature overrode a gubernatorial veto to enact a law that expanded the right to use deadly force in self-defense to apply anywhere a person can legally be. Previously, people were obligated to “retreat from the encounter” if they knew they could do so with “complete safety,” except in their homes, reported the Monitor.

Similar stand your ground laws are on the books in at least 21 states, including New Hampshire, according to the National Conference of State Legislatures.

It’s one of a number of laws passed during the last two years that are now being targeted for repeal by Democrats who retook a majority in the House in last November’s election. Republicans retain a 13-11 majority in the Senate.

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Monday, March 4, 2013

Gun Toting Walmart Customer Shoots at Shoplifter

A gun owner in Florida was arrested last week after he opened fire at a suspected Walmart shoplifter because he said he felt threatened and wanted to “mark” the man’s car for police.

An unarmed man ran from an Orange City Walmart with stolen merchandise. Several people chased after the alleged shoplifter and another man was armed but he never drew his gun. However, 35-year-old Jose Martinez pulled out his gun and fired at least five bullets, according to Local 6.

Bullets riddled alleged shoplifters vehicle, hitting the trunk and shattering the back window. Two other cars were also hit by gunfire.

Martinez told Local 6 that he was shocked that police arrested him because he thought no one other than the shoplifter was in danger. He said he just wanted to mark the man’s car for police.

Orange City police argued that surveillance video showed that the gun owner was never in danger because McKee was in the process of fleeing when the shooting occurred.

Martinez has permit to carry a concealed weapon in Florida, but was charged with aggravated assault and shooting into an occupied vehicle, both felonies. the shoplifter faces a misdemeanor charge.

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