No one cares about crime anymore

As the societal costs of crime have fallen, criminal justice has diminished as a public concern. The most recent Gallup poll asking people about the leading issues facing the country found that fewer than 2% of respondents cited crime, wrote Eli Lehrer in National Affairs.

In the 1990s, as many as half did. Even if one includes Gallup responses to a variety of tangential issues — school shootings, guns, and the like — fewer than 10% of Americans consider crime to be a top agenda item. While crime-reduction policies played a significant role in every presidential election from 1960 to 1996, in the 2012 presidential contest, Barack Obama and Mitt Romney never so much as mentioned crime in any one of their debates or in their nomination-acceptance speeches.

Without question, this indifference stems from the fact that crime rates today are much lower than they have been historically. The Uniform Crime Reports issued by the Federal Bureau of Investigations show a nearly consistent drop in overall crime from the 1990s until today.

The telephone polls conducted by the Bureau of Justice Statistics to survey crime victimization show an even longer-running decline, dating all the way back to the 1970s. Although differences in legal standards and definitions make exact comparisons difficult, gross crime rates in the United States (a measure dominated by assaults and property crimes) are lower than they are in other sizable Western countries. Relative to Londoners, for example, New Yorkers are half as likely to have their cars stolen or to face serious assaults.

To read more: http://www.nationalaffairs.com/publications/detail/responsible-prison-reform

GateHouse: America’s secret courts

 

Matthew T. Mangino

GateHouse News Service

June 28, 2013

 

Edward Snowden, a former subcontractor for the National Security Agency (NSA) and the Central Intelligence Agency, leaked a classified ruling by the secret Foreign Intelligence Surveillance Court (FISC). The ruling renewed NSA’s authority under the Patriot Act to collect all domestic-calling records of a subsidiary of cellphone giant Verizon Communications.

 

The recent disclosure of the leaked documents has rekindled a debate over secrecy, intelligence and national security. The debate has renewed concerns over the apparatus in place to regulate the government’s intelligence capabilities.

 

The FISC was established by Congress in 1978, through the Foreign Intelligence Surveillance Act (FISA), legislation which was drafted in response to the findings of the Church Committee. Named after U.S. Sen. Frank Church — the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities was responsible for establishing the secret court to curb abuses by the executive branch of government.

 

The NSA, the CIA, the FBI and even the U.S Army had conducted wiretaps, bugging and break-ins without judicial warrants under Presidents Lyndon Johnson and Richard Nixon. That conduct violated the U.S. Constitution’s Fourth Amendment ban on unwarranted and unreasonable searches and seizures.

 

When FISC was established the chief justice of the U.S. Supreme Court was authorized to designate seven federal district court judges to review warrants related to national security investigations.

 

The Patriot Act increased the number of judges serving on the court to 11. The Patriot Act also extended the time periods during which surveillance could be conducted and specifically included terrorism investigations under the purview of FISC.

 

Pursuant to FISA, a secret warrant may be justified for surveillance of suspected spies and terrorists. Each FISA application must contain “the Attorney General’s certification that the target of the proposed surveillance is either a 'foreign power' or 'the agent of a foreign power' and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime."

Did the government go too far in requesting records of all domestic phone calls from a cellphone company?

 

"The practice is akin to snatching every American's address book — with annotations detailing whom we spoke to, when we talked, for how long, and from where," the ACLU said in a complaint alleging the NSA violated the Constitution.

 

The problem with requesting the domestic telephone calls of all subscribers of a specific telecommunication company is, according to Elizabeth Goitein — co-director of the Brennan Center for Justice’s Liberty and National Security Program — the Patriot Act “does not permit the ‘collect now, establish relevance later’ approach.”  The NSA and FBI said that while the government has this massive amount of data, they can’t look at it without further permission from FISC.

 

The government is required to show in its original application to FISC that all of the information sought is relevant to a terrorist or intelligence investigation. Goitein told NPR, “Once information is in the government’s possession, we must rely on the government to police its own use of the information.”

 

According to a recent op-ed by Tim Weiner, a former national security correspondent for the New York Times, in the aftermath of 9-11 the Bush administration believed, "the Fourth Amendment would not apply to military operations the President ordered within the United States to deter and prevent acts of terrorism."

 

The Obama administration has apparently continued under the same premise. To President Obama’s credit he recently said that he "welcome[s] this debate" and thinks it's "good that we're having this discussion."

 

Weiner’s piece included a more ominous warning from former FISC Judge Royce Lamberth, "What we have found in the history of our country is that you can't trust the executive.”

 

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: Supreme Court finds minimums as important as maximums

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 28, 2013

A little more than 10 years ago, U.S. Supreme Court Justice Stephen Breyer wrote a concurring opinion in Harris v. United States holding that the Court’s landmark decision in Apprendi v. New Jersey did not apply to the imposition of the minimum portion of a mandatory sentence. Apprendi found that the Sixth Amendment right to a jury trial prevented judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury.

Last week, Justice Breyer changed his mind. Breyer joined with Justice Clarence Thomas and thee colleagues in Alleyne v. United States  and found that there should be no difference between facts supporting an increase in the maximum sentence and facts supporting the increase in a minimum sentence. Both required jury findings, he said.

The case concerned Allen R. Alleyne, who was convicted of robbery and a gun charge. The jury failed to find that Alleyne had brandished a gun, a determination that would have required a seven-year mandatory sentence. Merely possessing a gun would be a five year minimum.

However, at sentencing the judge found that Alleyne did indeed brandish a weapon and raised the minimum portion of his sentence to seven years from five years.

The Court found that the Sixth Amendment demands that a jury make a finding beyond a reasonable doubt for all of the facts that will determine the penalty range of a crime. Constitutionally, minimums matter just as much as maximums.

But, how much do “mandatory” minimums matter?

About 18 months ago I wrote here in The Cautionary Instruction about a 2009 Pennsylvania Commission on Sentencing report on mandatory minimums. The Commission made numerous findings including that fewer than half of all convictions for mandatory-eligible offenses resulted in the mandatory sentence.

According to Tamara Tabo at Abovethelaw.com, “the vast majority of criminal cases end with plea agreements, in which case there is no jury finding any of the elements beyond a reasonable doubt, including the ones that would trigger a mandatory minimum sentence.”

Prosecutors will now be sure to include in any mandatory minimum plea -- and there are not many -- the language needed to trigger the application of the mandatory.

As Tabo pointed out, if Allen R. Alleyne had stated in his plea colloquy that he had brandished a gun, he would have no Sixth-Amendment challenge. The Alleyne decision may mean little more than an additional step in an ever-growing sentencing day colloquy.

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500: Texas reaches execution milestone

The 18th Execution of 2013

On June 26, Kimberly McCarthy became the 500th convicted killer in Texas to receive a lethal injection, reported The Dallas Morning News.

The number far outpaces the execution total in any other state. It also reflects the reality of capital punishment in the United States today: While some states have halted the practice in recent years--Maryland, Connecticut, Illinois, New Mexico, New York and New Jersey--executions continue at a steady pace in many others.

The death penalty is on the books in 32 states. On average, Texas executes an inmate about every three weeks.

McCarthy was executed for the 1997 murder of a 71-year-old retired college professor, who was her neighbor in Lancaster. McCarthy used the pretense of borrowing sugar to enter Dorothy Booth’s home and stabbed Booth during a robbery to fuel her crack-cocaine habit. She severed Booth’s finger while she was still alive. Traces of Booth’s blood were found in McCarthy’s home.

McCarthy was also indicted but never tried in the 1988 deaths of two other elderly women.

As the drugs surged through McCarthy’s body Wednesday evening, she looked toward the window of the room that held her supporters, including her ex-husband, and thanked them. She looked at the window where Booth’s daughter and granddaughter and friends stood but did not address them.

“This is not a loss, this is a win. You know where I am going,” McCarthy said as she lay strapped to a metal gurney inside the death chamber with mint green walls. “I am going home to be with Jesus.”

Then she smiled and began to snore. Her chest briefly moved up and down rapidly. She lost consciousness, and Booth’s family nodded in approval. McCarthy was declared dead at 6:37 p.m. — 20 minutes after she was given the lethal dose.

To read more: http://www.dallasnews.com/news/crime/headlines/20130626-kimberly-mccarthy-put-to-death-in-texas-500th-modern-execution.ece

Oklahoma carries out second execution in little more than a week

The 17th Execution of 2013

Brian Darrell Davis convicted of raping and murdering his girlfriend's mother in 2001 was put to death in Oklahoma on June 25 at the Oklahoma State Penitentiary in McAlester, reported The Associated Press. Davis was the third inmate to be executed by Oklahoma this year and the second in as many weeks.

The state's parole board had suggested to Gov.  Mary Fallin that she cut Davis' sentence to life without parole. Fallin rejected the board recommendation, with spokesman Aaron Cooper saying the governor reviewed Davis' file and was "satisfied that justice is being served in this case."

A Kay County jury convicted Davis in 2003 of first-degree murder and first-degree rape in the death of his girlfriend's mother, Josephine Sanford, 52. Davis was sentenced to death on the murder conviction and 100 years in prison for rape.

The victim's daughter, Stacey Sanford, discovered her mother dead in November 2001 in the Ponca City apartment she shared with Davis. Prosecutors said Josephine Sanford had six stab wounds, a broken jaw and marks around her neck. DNA evidence showed Davis had sex with the victim.

Davis went to the parole board this month, took responsibility for the victim's death and apologized. He said the sexual contact was consensual and that a fight broke out after he remarked about its quality.

"I was rude at the end," Davis said, appearing before the panel by video. "We were mad at each other after my comment. And one thing led to another. It just happened so quick."

The board voted 4-1 in favor of clemency, prompting Attorney General Scott Pruitt to say the board was usurping the jury that convicted Davis and that the inmate deserved to die for a brutal crime.
Davis' defense attorney, Jack Fisher, said as the execution date approached that justice was not being served.

"By the end of the clemency hearing, four of the five board members were convinced that justice could only be served by a sentence of life without parole," Fisher said. "Why Governor Fallin would substitute her judgment for four members of the board is a mystery to me."

Death penalty opponents, who rallied Monday at the state Capitol to urge Fallin to show mercy, argued that Davis deserved life in prison, not death, after he showed remorse.

They also suggested that since Davis, who is black, was convicted by an all-white jury in Kay County that it wasn't truly a jury of his peers and there could have been bias.

"Our governor is in a position to make a wrong right," said Garland Pruitt, president of the Oklahoma City chapter of the NAACP. "Wrongs can be righted, hearts can be changed, but it takes those in office to help make those changes take place."

Last week, the state executed James Lewis DeRosa, 36, for his part in the brutal killings of a LeFlore County ranch couple in 2000.

To read more: http://www.foxnews.com/us/2013/06/25/man-in-oklahoma-executed-for-death-girlfriend-mother/#ixzz2XHMNMAhO

New law gives voice to Pennsylvania crime victims at parole hearings

Victims of crime can now have their say at state parole hearings.  Governor Tom Corbett signed into law House Bill 492 amending the Crime Victims Act to allow victims to testify before the state Parole Board before it decides whether to release an inmate from prison, reported Fox43TV.

“We have an obligation to honor the rights and sometimes the memories of the people who have suffered from crime,” Corbett said. “That’s why we needed this bill, to make sure that Pennsylvania leads the nation when it comes to acknowledging that just as criminals have rights, victims have them as well, and we are not trading one for the other.”

Under Pennsylvania law, anyone convicted of a crime who has served their minimum prison sentence may apply for parole every year.

Victims or their representatives can now testify either in person or through electronic means at a parole hearing.  In the past, a victim could submit a written statement or speak to staff members who would submit a summary of the victim’s comments.

To read more: http://fox43.com/2013/06/18/new-law-gives-voice-to-crime-victims-at-parole-hearings/#ixzz2WwvBrmbm

Ohio's private prison out of control

In Ohio, privatizing the prisons was part of a plan to help get the state out of its multi-billion dollar hole. Instead, the Lake Erie Correctional Institution, another CCA-owned prison, is overcrowded, with up to three inmates in single-inmate cells, and the spaces in which the inmates live are smaller than the law requires, reported the website www.addictinginfo.org .

According to an article in The Huffington Post, correctional officers said that they “had lost the prison within 3 months” of CCA taking it over, because the company was so afraid of being sued that they tied the officers’ hands when it came to pretty much everything. The officers themselves were so afraid of getting killed at work that they would often talk amongst themselves about who was going to die first.

Officer turnover at the prison is around 20% or so per year, and the new corrections officers that come in are less experienced and don’t know the Lake Erie facility at all. Furthermore, because of the profit motive, CCA has incentive to cut costs anywhere it can, and does so by eliminating inmate activities, staff, and reducing staff wages, which, according to experts, inevitably leads to a loss of quality in service.

 CCA also extracted a 90% occupancy rate guarantee from Ohio. Gangs essentially run the prison, and there are inmates who request to go into isolation just get away from the gangs.

In addition to all of that, calls to the police from the surrounding area have also risen sharply, due growing numbers of people throwing things from outside the prison, such as bags of drugs, cell phones and alcohol, over the fence to the inside of the prison. No need to smuggle anything in, just toss it over the fence! There aren’t enough guards to stop you.

Ohio is trying to get CCA to improve conditions there, but with so many violations across so many states, they probably shouldn’t expect much and would be better served to cut their ties with CCA as well, though their current contract, which is for 20 years, may not allow that.

To read more: http://www.addictinginfo.org/2013/06/22/private-prisons-were-supposed-to-solve-budget-problems-why-are-states-starting-to-dump-them/#ixzz2X8V5UrHC

Oklahoma executes man for killing of couple

The 16th Execution of 2013

James Lewis DeRosa was executed by lethal injection at the Oklahoma State Penitentiary in McAlester, on June 18, 2013 becoming the state's second inmate executed this year.

At a clemency hearing last month, DeRosa took responsibility for his role in the Oct. 2, 2000, stabbing deaths of Curtis and Gloria Plummer, for whom he had previously done some ranch work. He also apologized to their family.

"I can't express how truly sorry I am for the pain I've caused the Plummer family," DeRosa said. "I take full responsibility for their deaths. If not for me, they wouldn't have died that night."

Strapped to the gurney in the penitentiary's death chamber, though, he had nothing to say before the fatal mixture of drugs was pumped into his veins.

DeRosa took three heavy breaths before his face turned ashen and he stopped breathing.

According to prosecutors, DeRosa had worked on the Plummers' ranch in the Le Flore County community of Poteau, and on the day of the killings, he and accomplice John Eric Castleberry went there under the pretense of looking for work.

DeRosa and Castleberry persuaded the couple to let them into their home and then attacked them, stabbing the couple over and over and slashing both their necks, prosecutors said. They made off with $73 and the couple's pickup truck, which was found abandoned at a nearby lake.

Castleberry, 33, testified against DeRosa as part of a deal with prosecutors in which he received a sentence of life in prison without the possibility of parole.

At his clemency hearing before the Oklahoma Pardon and Parole Board last month, DeRosa spoke via a video link from prison about how he had found religion and turned his life around behind bars. He urged the board to recommend to Gov. Mary Fallin that she commute his sentence to life in prison so that he could be a positive influence on his fellow inmates. He also apologized to the victims' loved ones and owned up to what he had done.

The family wasn't swayed, and the board voted 3-2 to not recommend he be pulled off of death row.

After the execution, the Plummers' daughter, Janet Tolbert, said the execution wasn't about DeRosa.

"This is about Curtis and Gloria Plummer. The family of Curtis and Gloria are pleased that justice has been served," said Tolbert, who was wearing a T-shirt emblazoned with a picture of her parents' faces.

Tolbert said she wasn't surprised that DeRosa didn't express remorse in the death chamber, because she said he didn't do so in court. She said the clinical and peaceful way DeRosa died belies the horrifically violent manner in which her parents were killed.

"It was horrible," she said. "They suffered a horrendous death. They missed out on so much."

In a letter to the parole board, Tolbert wrote that she still has nightmares about finding her parents dead.

"I saw my 70- and 73-year-old parents laying in pools of blood that went through the carpet to the cement foundation, with both of their throats slashed from ear-to-ear and stab wounds all over their 70-year-old bodies," Tolbert said.

To read more: http://www.cbsnews.com/8301-504083_162-57590006-504083/james-lewis-derosa-okla-man-executed-by-lethal-injection-for-couples-2000-death-report-says/

Governor can deny execution for killer who wants to die

Oregon’s governor can deny execution for a death row inmate who wants to die, the state’s Supreme Court ruled, reported The Associated Press.

The ruling settles an argument between Gov. John Kitzhaber and Gary Haugen, who was convicted of two murders, over whether Kitzhaber had the power to grant a reprieve that Haugen did not want.

Kitzhaber, a Democrat, opposes the death penalty and intervened weeks before Haugen was scheduled to be die by lethal injection in 2011. The governor vowed to block any execution during his term in office and urged a statewide vote on abolishing the death penalty.

The Legislature has shown little interest in putting it on the ballot in 2014. Kitzhaber renewed his request after the ruling, saying capital punishment “has devolved into an unworkable system that fails to meet the basic standards of justice.”

The court said there’s nothing in the Oregon constitution giving an inmate a right to reject clemency, and Kitzhaber was within his authority.

"The executive power to grant clemency flows from the constitution and is one of the governor’s only checks on another branch of government,” Chief Justice Thomas Balmer wrote.

The reprieve expires when Kitzhaber leaves office. His term ends in January 2015, and he hasn’t said whether he’ll run for another four-year term.

Oregon has executed two inmates since voters reinstated the death penalty in 1984. Both, like Haugen, waived their appeals in the late 1990s. Kitzhaber, who was governor then, declined to intervene — a decision he now regrets.

To read more: http://www.washingtonpost.com/national/oregon-supreme-court-upholds-governors-reprieve-for-death-row-inmate-who-wants-to-die/2013/06/20/97582600-d9bd-11e2-b418-9dfa095e125d_story.html

GateHouse: Criminalizing mental illness

Matthew T. Mangino

GateHouse News Service

June 21, 2013

 

This month President Barack Obama addressed the National Conference on Mental Health. The president made it clear, “The overwhelming majority of people who suffer from mental illnesses are not violent. They will never pose a threat to themselves or others. And there are a whole lot of violent people with no diagnosable mental health issues.” 

 

The president is right on point. Most people suffering from mental illness are not a threat, yet we lock away the mentally ill at alarming rates. Seriously mentally ill people are 3.2 times more likely to be incarcerated than hospitalized, according to a survey conducted 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.

The survey also found that about 16 percent of inmates in jails and prisons have a serious mental illness. Twenty years ago, the seriously mentally ill accounted for only 6.4 percent of all incarcerated offenders.

 

According to NPR, more 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. In fact, the three largest inpatient psychiatric facilities in the country are the Los Angeles County Jail, Rikers Island in New York City and Cook County jail in Chicago.

 

In California alone there are about 33,000 mentally ill inmates in state prison, close to 30 percent of the entire prison population. The number of suicides in California prisons has soared in recent years, to about 24 suicides per 100,000 inmates a year, a rate that is about 48 percent higher than the national average.

 

President Obama also noted that “less than 40 percent of people with mental illness receive treatment ... even though three-quarters of mental illnesses emerge by the age of 24, only about half of children with mental health problems receive treatment.” 

 

Why?

 

It is extremely difficult to find a bed for a seriously mentally ill person who needs to be hospitalized. In 1955 there was one psychiatric bed for every 300 Americans. In 2005 there was one psychiatric bed for every 3,000 Americans.

 

Even fewer people with mental illness receive adequate treatment in prison.

 

The U.S. Department of Justice recently cited a number of states for their unconstitutional treatment of mentally ill inmates. In Pennsylvania, the DOJ found that one correctional facility, SCI Cresson, routinely resorted to locking prisoners with serious mental illness in their cells for 22 to 23 hours a day, for months or even years at a time. The DOJ concluded that SCI Cresson’s misuse of solitary confinement of prisoners with serious mental illness had dire consequences, including depression, psychosis, self-mutilation and suicide. 

 

SCI Cresson came to rely on solitary confinement as a means of warehousing many of its prisoners with serious mental illness, due in part to a dysfunctional mental health program within the facility. 

Prison medical systems were not designed nor equipped to provide quality mental health services to prisoners in need. The problem reaches beyond Pennsylvania’s prisons — 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.

 

Getting a handle on the treatment of the mentally ill is more than a family or community problem. Criminalizing mental illness is more than a tragedy. The plight of the mentally ill in prison, and on the street, must be addressed at the highest levels of government. President Obama has taken a first step — there is yet a long way to go.

 

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.

Visit:  http://www.steubencourier.com/archive/x373361237/Matthew-T-Mangino-Criminalizing-mental-illness#ixzz2WsIZel7o

The Cautionary Instruction: Bite mark analysis devoured by the courts

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
June 21, 2013

At least 24 men convicted or charged with murder, or rape, based on bite marks on the flesh of victims have been exonerated since 2000, many after spending considerable time in prison.

A small, mostly ungoverned, group of dentists carries out bite mark analysis, and the findings are often key evidence in prosecutions -- even though there is no scientific proof that teeth can be matched definitively to a bite into human skin.

The FBI doesn't use it, and the American Dental Association does not recognize it.

"Bite mark evidence is the poster child of unreliable forensic science," Chris Fabricant, director of strategic litigation at the New York-based Innocence Project told the Associated Press.

One notable case of faulty bite mark analysis involved a Pennsylvania native convicted in Arizona.

Ray Krone, the so-called "Snaggletooth Killer," was convicted in 1992, and after winning a new trial was convicted again in 1996, of the murder of a Phoenix woman. Krone’s conviction was based principally on bite mark identification. He was exonerated in 2002 after spending 10 years in prison, three on death row.

In 2004, I participated in a forum on the death penalty with Krone at Albright College in Reading, Pennsylvania. His case is a tragic example of forensic science run amok.

As far back as 1985 researchers were questioning the reliability of bite mark science, “There is effectively no valid documented scientific data to support the hypothesis that bite marks are demonstrably unique,” suggested a report at the time.

Twenty-eight years later the criticism has only increased. In 2009, the National Research Council found that there is “no science on the reproducibility of the different methods of analysis” of bite marks. The report concluded, “Different experts provide widely differing results.”

Now, a case in California may further impact the use of bite mark analysis in criminal trials.

In 1997, William Richards was convicted of murdering his wife -- two previous trials resulted in hung juries. Dr. Norman Sperber a top forensic dentist certified by the American Board of Forensic Odontology, testified during trial that a suspected bite mark on the victim’s body was consistent with a rare abnormality in Richards' teeth.

During an evidentiary hearing in 2009, Sperber recanted his testimony and said he had been wrong. The court reversed Richards' conviction, finding that the evidence “points unerringly to innocence." Prosecutors appealed, and the California Court of Appeals ordered Richards to remain in prison pending the outcome.

Richards’ appeal is still pending and appears to mark yet another setback for Forensic Odontology. Some “experts” in the field now argue that bite marks are best used to exclude suspects, not identify them.

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High Court Makes it More Difficult to Enhance Sentences

The Supreme Court says a man should not have gotten a harsher penalty for a crime because a judge had investigated his previous offenses, reported the Associated Press.

The 8-1 decision came down today in the case of Matthew Descamps, a Washington state man convicted of possessing a firearm in 2005. He could have been sentenced to a decade in prison. But since he had been convicted of multiple crimes, he fell under the Armed Career Criminal Act. That requires a sentence of at least fifteen years if the defendant has three prior convictions for violent felonies.

Descamps argued that his 1978 conviction for burglary wasn't violent and didn't count. The federal judge decided to investigate the record himself and decided that it did count. Deschamps appealed, and the Supreme Court reversed the decision.

The ruling will make it harder for the government to use the facts of a prior conviction to enhance a federal criminal sentence.

O'Connor calls for elimination of judicial elections in Pennsylvania

Former U.S. Supreme Court Justice Sandra Day O'Connor suggested that judicial elections should be eliminated in Pennsylvania because contributions to those campaigns lead the public to perceive judges as influenced by campaign donors, reported The Legal Intelligencer.

While Pennsylvania is the birthplace of American democracy, the state has departed from the U.S. Constitution regarding judicial selection, O'Connor said. It is a "serious problem that so many people in our country think that judges are just politicians in robes," O'Connor said.

O'Connor cited the U.S. Supreme Court decision in Caperton v. A.T. Massey Coal in which a justice on the West Virginia Supreme Court of Appeals voted to overturn a $50 million verdict against a mining company whose chief executive officer had contributed $3 million to the justice's campaign.

The 5-4 U.S. Supreme Court reasoned that there is a "serious objective risk of actual bias when the judge ruled on the case of his principal financial donor and our Supreme Court held, under the circumstances, the 14th Amendment due process clause required that the judge recuse himself," O'Connor said. The Supreme Court also urged every state to adopt rules governing judicial recusals, O'Connor said.

While there is no way to know if a justice's vote was affected by a campaign contribution, a campaign donation of that nature "gives the public a strong reason to doubt" the fairness of the justice system, O'Connor said. The best defense to threats to judicial independence is a culture in which people respect the rules of law and the role of impartial courts in upholding the rule of law, O'Connor said.

To read more: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202604002183&thepage=1

Florida executes killer 26 years after murder

The 15th Execution of 2013

Lying on an execution gurney, his arms outstretched, his body covered by a white sheet, William Van Poyck uttered his last words: “Set me free," reported The Palm Beach Post.

Roughly 20 minutes later – 7:24 p.m. on June 5, 2013 — he was declared dead by a white-coated physician who put his stethoscope to Van Poyck’s chest three times to make sure a lethal cocktail of drugs had done its job and his heart had stopped beating.

Steve Turner, a former Glades Correctional Institution prison guard, was with Fred Griffis on June 24, 1987 when Van Poyck and Valdes ambushed their prison transport van to free a convicted murderer who was being brought to a dermatologist on North Olive Avenue in West Palm Beach for treatment. Griffis was killed and Turner was grazed by a bullet in the ensuing mayhem when the two ex-cons realized their plan to free their buddy had failed.

“He was very much at peace and serene,” Lisa Van Poyck said of her three-hour final visit with her brother. “He said, ‘Lisa, I’m ready to move on and do something different.’ I’m sure my mother and father will meet him on the other side with open arms.”

Shortly after the leader of the execution team announced, “the preparation phase has ended and the execution phase will begin,” Van Poyck opened his eyes, lifted his head and nodded toward those watching through a glass wall. He did it again, his mouth curling up slightly.

Then, he closed his eyes and didn’t open them again. The head of the execution team shook him slightly about nine minutes into the process. Veteran death watch observers said it was to assure the first batch of drugs, a sedative delivered intravenously, had rendered him unconscious. Then, according to protocol, the second and third drugs, which ultimately stopped his heart, were pumped into his bloodstream. He showed no discomfort.

To read more: http://www.mypalmbeachpost.com/news/news/crime-law/prison-guard-killer-william-van-poyck-executed-sta/nYJ9T/

Can suspect claim self defense in Giant Eagle killing?

Can a yet unknown suspect in a Washington County, PA bank robbery and shooting claim self-defense.

 

Vincent “Mystro” Kelley witnessed a bank robbery inside the South Strabane Giant Eagle and saw a man running from the store's Citizens Bank branch with a duffel bag and a gun. 

 

Kelley chased the bank robber into the store parking lot and tried to subdue him inside the thief's fleeing car.  A witness said Kelley appeared to be reaching for a knife he carried when the robber shot him several times and killed him during the getaway.

 

Pennsylvania law provides for self defense under these circumstances:

 

1. A reasonable belief of imminent danger of death or serious bodily injury;

 

2. No violation of a duty to retreat or avoid danger;

 

3. The killer must be free from fault in provoking the difficulty which resulted in the killing.

 

It would be a stretch that the suspect in this killing could make a credible claim for self-defense. However, a recent case in New Mexico is evidence that no defense is off the table.

 

A Santa Fe County jury, after deliberating for 24 hours over four days, acquitted Adrian Gonzales of first- and second-degree murder, but couldn’t reach a decision on whether he was guilty of involuntary manslaughter in the 2010 stabbing death of Victoriano Moises Byrne-Gonzales.

Gonzales is accused of stabbing Byrne-Gonzales in the throat with a 3-inch folding knife after Byrne-Gonzales and a friend tried breaking up a fight between Gonzales and his girlfriend at a Mobile Home Park in Pojoaque, New Mexico in 2010.

Read my interview with the Pittsburgh Tribune Review on the likelihood of a successful self defense claim.

 

Pennsylvania Supreme Court Rejects Challenge to Mandatory Retirement

A unanimous Pennsylvania Supreme Court has rejected a constitutional challenge to the mandate that judges retire in the year in which they turn 70, reported Amaris Elliott-Engel of  The Legal Intelligencer.

Justice Thomas G. Saylor, writing for the majority, said “there is colorable merit” to the judicial plaintiffs’ argument that a constitutional amendment might impinge on inalienable rights that are also recognized in the state constitution. But, Saylor continued, “We do not believe that the charter’s framers regarded an immutable ability to continue in public service as a commissioned judge beyond 70 years of age as being within the scope of the inherent rights of mankind.”

The court applied rational-basis scrutiny to the constitutional challenges on equal protection and due process grounds.

The lawsuits have been remanded to Commonwealth Court for that intermediate appellate court to dismiss the complaints with prejudice and enter judgment in favor of the commonwealth.

Justice J. Michael Eakin, who wrote a concurrence in which Justices Debra Todd and Seamus P. McCaffery joined, said that the mandatory retirement has another salutary purpose: establishing a “temporal limit on judicial service, regardless of past or current perceptions of one’s ability to perform competently beyond any given age.”

Texas executed man responsible for 5 killings

The 14th Execution of 2013

Elroy Chester, a man who confessed to killing five people during a six-month crime spree in southeastern Texas 15 years ago, was put to death on June 12, 2013 for the fatal shooting of a firefighter, reported CBS News.

Chester said that he didn't want relatives of his victims to have "hate in your heart for me."

Chester said he confessed to killing firefighter Willie Ryman III because "you should know who killed your loved one."

"Don't hate me. I'm sorry for taking your loved one," Chester said. "Elroy Chester wasn't a bad man, I don't care what anybody says. A lot of people say I didn't commit those murders. I really did it."

Moments later, Chester told the warden to proceed with the execution and began humming what sounded like a church hymn. He then took several deep breaths, yawned and began snoring as the lethal drug took effect.

Chester was pronounced dead Wednesday at 7:04 p.m. CDT, 27 minutes after the lethal drug was administered.

Ryman, a decorated Port Arthur firefighter, was killed in February 1998 when he interrupted Chester as he sexually assaulted Ryman's two teenage nieces during a break-in at their home. Chester, who was on probation at the time, was arrested soon after and subsequently pleaded guilty to killing the 38-year-old firefighter.

DNA evidence tied Chester to the rapes. Ballistics tests matched his gun to the slayings of Ryman and four others. The gun was stolen in one of 25 burglaries in Port Arthur attributed to Chester.

A jury deliberated 12 minutes before deciding Chester should be put to death.

To read more: http://www.cbsnews.com/8301-504083_162-57589171-504083/elroy-chester-texas-man-who-confessed-to-5-killings-executed-by-lethal-injection/

Florida executes repeat child molester and killer

The 13th Execution of 2013

Elmer Carroll died by lethal injection on May 29, 2013 in Florida for the 1990 murder of Christine McGowen, a 10-year-old girl, reported the Orlando Sentinel.

Carroll died at 6:12 p.m. at Florida State Prison in Starke, the Florida Department of Corrections said.
Carroll declined to make a final statement, but Christine's mother, Julie McGowen, issued one: "Thank you to all that have worked so hard, and justice for all, namely, Christine McGowen. Rest in peace."

Carroll raped and strangled Christine in her bed Oct. 30, 1990 while her stepfather slept in another room and her mother was at work. The family lived next door to the halfway house where Carroll was staying after his release from prison.

He was convicted of lewd conduct with two other children before he met Christine.

At 10 a.m. Wednesday, Carroll ate a last meal of sunny-side-up eggs with bacon and sliced tomatoes, biscuits, avocados, a fruit salad of strawberries, papaya, peaches and pineapple and canned milk.

He had two visitors — death-penalty opponents Susan Cary, a lawyer, and Dale Recinella, a Catholic lay chaplain, author and lawyer.

Orange-Osceola State Attorney Jeff Ashton, who prosecuted the case, attended the execution.
"For me, it's completion," Ashton said.

At 5 p.m., the Catholic Diocese of Orlando held a service at St. James Cathedral to pray for the death penalty to be abolished.

"It's a destructive tool rather than a preventive tool," Bishop John Noonan told about 30 people assembled for the service.

Carroll was written up 20 times in more than 20 years on death row for prison infractions including attempted arson, possession of contraband and, in December, for making threats.

To read more: http://articles.orlandosentinel.com/2013-05-29/news/os-elmer-carroll-execution-florida-20130528_1_elmer-carroll-10-year-old-girl-next-door

GateHouse: Kennedy assassin claims Manchurian defense

Matthew T. Mangino
GateHouse News Service
June 14, 2013

This month marks the 45th anniversary of the assassination of Robert F. Kennedy. His senseless and tragic death came about on the evening of June 5, 1968, in the kitchen of the Ambassador Hotel in Los Angeles.

Moments before entering the hotel kitchen, Kennedy had given a victory speech after winning the important California Democratic primary for president of the United States.

Kennedy was being ushered through the hotel kitchen by a group of campaign volunteers. The kitchen was crammed with supporters and well-wishers. Suddenly, Kennedy was shot by Sirhan Sirhan, a young man angered over Kennedy’s pro-Israeli position in the Middle East.

Less than five years earlier, Kennedy’s brother, President John F. Kennedy, was struck down by an assassin’s bullet, and only two months earlier civil rights leader Martin Luther King, Jr. was slain in Memphis, Tenn., by an assassin.

Sirhan was convicted ten months later and within a week of his conviction he was sentenced to death. The sentence was commuted to life in prison in 1972 after the California Supreme Court vacated all pending death sentences.

Sirhan remains in a California prison and has been denied parole 14 times, most recently in 2011. However, his lawyers have come up with a new plan for his release that reads like the plot of a Hollywood movie.

Although Sirhan’s conviction occurred more than four decades ago, he has asked the court to review his conviction through a Writ of Habeas Corpus. His direct appeal rights have long been exhausted, but habeas corpus remains a viable option. 

Appeals are used to correct errors that occurred before or during trial based on evidence found on the court record. A Writ of Habeas Corpus asks the court to consider “new” evidence that the trial judge might not have heard.

 

In 2008, Sirhan’s lawyers hired memory expert Daniel Brown, a professor of psychology at Harvard Medical School. Brown was described by Sirhan’s lawyers as "one of the world's foremost experts in hypno programming."

 

Brown interviewed Sirhan for 60 hours over a three-year period. Sirhan now remembers that when he fired his shots in the hotel kitchen he believed he was at a gun range and shooting at circular targets, reported CNN.

 

Sirhan’s lawyers believe he was programmed to cause a distraction in the kitchen, allowing a second gunman to secretly shoot Kennedy from behind. Lawyers say that Professor Brown believes a mysterious young woman in a polka dot dress lured Sirhan into the kitchen as part of the alleged mind control plot.

 

The conspiracy claim is bolstered somewhat by an analysis of a recently uncovered tape recording of the shooting.  The recording is the only known soundtrack of the assassination and it reveals at least 13 shot sounds over a period of less than six seconds. This appears to contravene the theory at trial that eight shots were fired by Sirhan.

 

Sirhan’s claims of hypno programming and assassination might make for an action-packed Hollywood thriller — if it hadn’t already been written, produced and premiered more than 50 years ago. "The Manchurian Candidate" released by MGM in 1962 starred Frank Sinatra and portrayed a supposed war hero who was brainwashed into becoming an unwitting assassin.

 

At times, truth is stranger than fiction. In the case of Sirhan Sirhan, fiction is being used to cobble together a cockamamie claim that is beyond strange and just downright fantastic.

 

Unfortunately, Sirhan’s claim can’t be completely written off — especially not in California. The Twinkie defense worked for Dan White after he assassinated San Francisco Mayor George Moscone and Supervisor Harvey Milk in 1978. 

 

Thirty-five years later, can the Manchurian defense work for Sirhan Sirhan?

 

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: How to pick a non-capital jury in Florida

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
June 14, 2013

George Zimmerman is charged with second-degree murder in the shooting death of 17-year-old Trayvon Martin. Martin was returning to his father’s house from a convenience store when he encountered Zimmerman. According to Zimmerman, a crime watch member, Martin attacked him and he acted in self-defense. The prosecution will argue that Zimmerman profiled Martin because he was black.

Jury selection began on Monday in Seminole County, Florida. The selection of a jury is often the most critical stage of many trials, but it is especially important in this case. Jurors will be confronted with a defendant who acknowledges taking some action but argues that it was justified.

Both sides have been rigorously probing prospective jurors to learn the extent of their knowledge of the case -- specifically issues like Zimmerman’s internet defense fund and the nationwide demonstrations memorializing Martin.

The presiding judge has ordered the clerk of courts to summon a total of 500 potential jurors, many of whom won't get far before they're dismissed. Prosecutors and defense attorneys will ultimately settle on six jurors and four alternates. In Florida, 12 jurors are required only for capital criminal trials, where the defendant is facing the death penalty.

The first group of 100 potential jurors completed questionnaires about themselves and their ability to serve before they were questioned in court. Of those jurors summoned to court this week, 40 were sent home without ever being questioned by the attorneys. Another 30 were dismissed on Tuesday.
Prosecutors and defense attorneys plan to continue questioning jurors individually about pre-trial publicity until they reach 30, then move on to more traditional jury selection topics like impartiality, self-defense, race and lethal force.

Eventually, the sides will get to 21 possible jurors who will be questioned even further. Out of those 21 potential jurors, six will be chosen to decide Zimmerman’s fate. The way things are going, selecting a jury and alternates could take several weeks.

Here is a typical example of what prosecutors and defense counsel are hearing from potential jurors. Juror "B30", a 65-year-old man with hearing loss, said he recalled Martin's parents going public about their concerns over the lack of an immediate arrest last year and more recently testimony over whether voice-recognition experts should be allowed to testify at trial. "There was fault on both sides as far as I can see, two people being in the wrong place at the wrong time," he said. "Two people who instigated something that could have been avoided."

One thing missing from this case that comes up in most every other high profile case is a change of venue. Earl Ofari Hutchinson, an author and political analyst, wrote that it is no accident that Zimmerman's attorneys never asked for a change of venue. “With the racial numbers, social and economic demographics and political views of those most likely to be on his jury skewed in his favor,” Zimmerman is right where he wants to be -- the Seminole County Courthouse.

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Supreme Court: Retroactive application of sentencing guidelines violates ex post facto

A divided Supreme Court ruled Monday that tougher sentencing guidelines passed after someone commits a crime cannot be used to justify a longer sentence for the defendant, reported the Washington Post.

The court ruled 5 to 4 that such a change would violate the Constitution’s prohibition against enacting laws that retroactively make an action illegal or call for greater punishment.

Even though the federal sentence guidelines are advisory, not binding the analysis is the same, wrote Justice Sonia Sotomayor. She said the range of sentencing options contained in the guidelines “is intended to, and usually does, exert controlling influence on the sentence that the court will impose.”

Federal sentencing guidelines originally were enacted to be binding. But the court ruled in 2005 that that ran afoul of the Constitution. The remedy was to make them advisory. But Sotomayor said the guidelines still carry enormous weight.

“That a district court may ultimately sentence a given defendant outside the guidelines range does not deprive the guidelines of force as the framework for sentencing,” Sotomayor wrote.

“Indeed, the rule that an incorrect guidelines calculation” can be reason for appeal “ensures that they remain the starting point for every sentencing calculation in the federal system.”

The court rejected the government’s position that because the guidelines did not carry the legal effect of a “law,” they do not violate the ex post facto clause.

To read more: http://www.washingtonpost.com/politics/supreme-court-bars-retroactive-application-of-sentencing-guidelines/2013/06/10/733eae16-d205-11e2-8cbe-1bcbee06f8f8_story.html

Chicago woman arrested 396 times--costs about $1 million

Shermain Miles was arrested recently in Chicago for the 396th time, according to The Christian Science Monitor. She accepted a plea deal after pleading guilty to charges she attacked a city alderman. She also pleaded guilty to trespassing and public drinking in separate cases.

Chicago Police say it takes two officers at least an hour and a half to make a misdemeanor arrest—or three police hours total. Every arrest turns into a criminal case in the Cook County court system, which isn't cheap, according to The Sun-Times Reader.

It costs about $2,500 just to open a case, according to the Chicago Appleseed Fund for Justice, a legal research organization. That includes the expense of court clerks, judges, and running the system.

Miles' arrests, not her trials, incarcerations, treatment or probation violations,  just her arrests cost Chicago taxpayers about $1 million. The costs of arrest are only a fraction of the public dollars spent on Miles.
                           
In this case, a judge sentenced her to time served in all three cases because Ms. Miles agreed to undergo a mental-health evaluation and get follow-up treatment, the Associated Press reports.

The Chicago Sun-Times reports that: "Since 1978, Chicago Police alone have arrested Miles 396 time ... under at least 83 different aliases. Those arrests include 92 times for theft, 65 for disorderly conduct, 59 for prostitution-related crimes and five for robbery or attempted robbery."

Miles is homeless and has been in the Logan Correctional Center in Lincoln, Ill., since December, according to the Associated Press. She had been released in April 2011 after serving three years for an armed robbery conviction. But multiple arrests while on parole prompted her return to prison.

In the majority of those cases, Miles is arrested, released and never convicted, according to the Sun-Times. The Cook County state’s attorney’s office counts 73 convictions in all. Yet, Miles has cost Chicago millions and the amount is still climbing.

To read more: http://www.csmonitor.com/USA/USA-Update/2013/0611/Arrested-396-times-Chicago-woman-has-done-it-using-83-aliases

Houston PD has dedicated mental health division

Houston is the first police department in the nation to devote an entire division to mental health, reported the Milwaukee Journal Sentinel.

The background leading up to the program's success reads like Malcolm Gladwell's essay "Million Dollar Murray."

 The Houston Police Department has five programs aimed at helping people in psychiatric crisis avoid arrest — including a homeless outreach team, a team dedicated to identifying chronic consumers and a team of 10 officers who are paired with mental health counselors to go out on calls for help. Since 2008, the department has cut the number of its mental illness emergency contacts in half.

When launching that program in 2009, Houston police reviewed all reports involving people with mental illness. They found that more than 200 people in mental health crises had repeated interactions with police officers since 2006, the year the department began compiling the data.
They then narrowed that list down to those who had been taken in on emergency detentions four or more times — a total of 57 "chronic consumers."

Two caseworkers were assigned to the 57. Some could not be found; others were in jail, prison or hospitals. They located 30 people and got them help.

In the six months before the pilot program began, those 30 people had been named in 194 offense reports and 165 emergency psychiatric detention orders.

"This is a total of 359 time-consuming events which averages close to one hour of work per officer per event," a department report on the program noted.

After intense intervention by the two case managers, the same 30 individuals were reported to have been involuntarily committed by officers 39 times in the following six months — a decrease of 76.4%. They were involved in 65 police offense reports — a 66.5% decrease.

Police estimate they saved 768 patrol manpower hours and 194 investigative hours on those 30 people alone. That doesn't count the cost in time, money and resources of emergency room care, hospitalizations, lawyers and court costs.

One man had been hospitalized 17 times in a six-month span before the program. He had 23 contacts with police and was incarcerated five times. The total cost to police alone: $145,938.

In the first six months he was in the program, he was hospitalized twice, had two police contacts and was not incarcerated. The total police cost: $1,764.

To read more: http://www.jsonline.com/news/milwaukee/houstons-solution-to-mental-health-system-problems-offers-a-case-study-for-milwaukee-b9928490z1-210715811.html

DOJ finds PA Correctional Facility Violated Inmates' Civil Rights

SCI Cresson routinely resorts to locking prisoners with serious mental illness in their cells for 22 to 23 hours a day

Last week, the Justice Department issued the results of its investigation into the use of solitary confinement on prisoners with serious mental illness at the Pennsylvania State Correctional Institution at Cresson in Cambria County. 

The department found that Cresson’s use of long-term and extreme forms of solitary confinement on prisoners with serious mental illness, many of whom also have intellectual disabilities, violates their rights under the Eighth Amendment (cruel and unusual punishment) to the U.S. Constitution and under the Americans with Disabilities Act (ADA).

Though the Pennsylvania Department of Corrections now intends to close Cresson, many of the prison’s problematic policies and practices relating to the use of solitary confinement appear indicative of what is occurring statewide.  For this reason, in its findings letter, the department also notified the governor that the department is expanding the investigation to include all prisons in the Pennsylvania Department of Corrections to determine whether these other prisons also engage in the unlawful use of prolonged and extreme isolation of prisoners with serious mental illness and intellectual disabilities.  Secretary John Wetzel and his staff at the Department of Corrections have fully cooperated during the course of this investigation and the department looks forward to working collaboratively with them in the coming months.

In addition to finding that Cresson routinely resorts to locking prisoners with serious mental illness in their cells for 22 to 23 hours a day, for months or even years at a time, the department also found that Cresson often denies these prisoners basic necessities and subjects them to harsh and punitive conditions, including excessive uses of force.  The department concluded that Cresson’s misuse of solitary confinement on prisoners with serious mental illness leads to serious harms, including mental decompensation, clinical depression, psychosis, self-mutilation, and suicide.

The department also found that Cresson came to rely on solitary confinement as a means of warehousing many of its prisoners with serious mental illness because of deficiencies relating to its mental health program.  Those systemic deficiencies include a disorganized and fragmented mental health program, marginalization of mental health staff, and disciplinary procedures that result in the punishment of disability-related behaviors and the placement of actively psychotic prisoners into harsh solitary confinement.  The department also found an oversight system that does not analyze suicides and other critical data.

“We found that Cresson often permitted its prisoners with serious mental illness or intellectual disabilities to simply languish, decompensate, and harm themselves in solitary confinement for months or years on end under harsh conditions in violation of the Constitution,” said Roy L. Austin Jr., Deputy Assistant Attorney General for the Civil Rights Division.  “These practices have serious public safety consequences because many of these individuals are returned to the community.  We look forward to continuing to work collaboratively with the Department of Corrections during the expanded investigation to bring an end to these practices.”

“The findings in this case are disturbing and expose a serious disregard for the health and safety of prisoners with serious mental illness,” said David J. Hickton, U.S. Attorney for the Western District of Pennsylvania.  “We are dedicated to ensuring that prisoners throughout the Commonwealth are treated humanely and receive the appropriate mental health treatment in an effort to enhance their successful reintegration into the community upon release.”

The department initiated this investigation in December 2011 under the Civil Rights of Institutionalized Persons Act (CRIPA), which prohibits a pattern or practice of deprivation of constitutional rights of individuals confined to state or local government-run correctional facilities.  During the course of the investigation, the department made additional findings under the ADA.  The investigation also provided information to the department that justified an expanded investigation under CRIPA and the ADA.

The expanded investigation will focus on allegations that prisons throughout the Pennsylvania Department of Corrections subject prisoners with serious mental illness and intellectual disabilities to prolonged periods of isolation under conditions similar to those found at Cresson.  Through this investigation the department will seek to determine whether the other prisons in the Commonwealth engage in a pattern or practice of the inappropriate use of prolonged isolation on prisoners with serious mental illness and intellectual disabilities in violation of the Constitution and federal law.

This investigation was conducted by attorneys with the Special Litigation Section of the Justice Department’s Civil Rights Division and the U.S. Attorney’s Office for the Western District of Pennsylvania.  The Civil Rights Division and the U.S. Attorney’s Office will be partnering again to conduct the expanded statewide investigation.

Additional information about the Civil Rights Division is available on its website at www.justice.gov/crt.

RFK killer claims an unusual defense

Matthew T. Mangino
The Vindicator
June 9, 2013

Last week marked the 45th anniversary of the assassination of Robert F. Kennedy. His senseless and tragic death took place June 5, 1968, in the kitchen of the Ambassador Hotel in Los Angeles.

Moments before entering the kitchen, Kennedy had given a victory speech after winning the California Democratic primary for president of the United States.

Kennedy was being ushered through the hotel kitchen by a group of campaign volunteers. Suddenly, he was shot by Sirhan Sirhan, a young man angered over Kennedy’s pro-Israeli position.

Less than five years earlier, Kennedy’s brother, President John F. Kennedy, was struck down by an assassin’s bullet and only two months earlier civil rights leader Martin Luther King, Jr. was slain in Memphis, Tenn., by an assassin.

Sirhan was convicted 10 months later and within a week of his conviction, he was sentenced to death. The sentence was commuted to life in prison in 1972 after the California Supreme Court vacated all pending death sentences.

Movie plot

Sirhan remains in a California prison and has been denied parole 14 times, most recently in 2011. However, his lawyers have come up with a new plan for his release that reads like the plot of a Hollywood movie.

Although Sirhan’s conviction occurred more than four decades ago, he has asked the court to review his conviction through a Writ of Habeas Corpus. His direct appeal rights have long been exhausted but habeas corpus remains a viable option.

In 2008, Sirhan’s lawyers hired memory expert Daniel Brown, a professor of psychology at Harvard Medical School.

Brown interviewed Sirhan for 60 hours over a three-year period. Sirhan now remembers that when he fired his shots in the hotel kitchen he believed he was at a gun range and shooting at circular targets, reported CNN.

Sirhan’s lawyers believe he was programmed to cause a distraction in the kitchen, allowing a second gunman to secretly shoot Kennedy from behind. Lawyers say that Professor Brown believes a mysterious young woman in a polka-dot dress lured Sirhan into the kitchen as part of a mind-control plot.

The conspiracy claim is bolstered somewhat by an analysis of a recently uncovered tape recording of the shooting. The recording is the only known soundtrack of the assassination, and it reveals at least 13 shot sounds over a period of less than six seconds. This appears to contravene the theory at trial that eight shots were fired by Sirhan.

Sirhan’s claims of hypno programming and assassination might make for an action-packed Hollywood thriller — if it hadn’t already been written, produced and premiered more than 50 years ago. “The Manchurian Candidate” released by MGM in 1962 starred Frank Sinatra and portrayed a supposed war hero who was brainwashed into becoming an unwitting assassin.

At times, truth is stranger than fiction. In the case of Sirhan Sirhan, fiction is being used to cobble together a cockamamie claim that is beyond strange and just downright fantastic.


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa.

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GateHouse: O.J. replay - his new claim may have merit

Matthew T. Mangino
GateHouse News Service
June 7, 2013

O.J. Simpson is back in the news. Before you yawn and nod-off from a recurring bout of O.J. fatigue, this Simpson proceeding might actually have some far-reaching implications.

Simpson has been enmeshed in the legal system since 1994. In fact, Simpson is probably remembered more for his legal battles than his Hall of Fame career on the gridiron.

His acquittal of murder in California was tabbed the “trial of the century.” The wrongful death civil suit that followed resulted in Simpson being liable to the estates of Nicole Brown Simpson and Ronald Goldman for $33.5 million. His arrest, and 2008 conviction, in Las Vegas for armed robbery and kidnapping of sports memorabilia dealers garnered a national television following.

The proceedings involving Simpson always seemed to be more about the personalities involved than the law, however, his current claim that his Las Vegas lawyers poorly represented him has the potential to go beyond the fanfare and personalities.   

Simpson claims that his lead counsel, Yale Galanter, never communicated a prosecutor’s plea offer made during the first day of trial. Simpson says he would have accepted the offer. Galanter contends he told Simpson about a two- to five-year plea bargain— a considerably shorter period of confinement than his sentence of nine to 33 years in prison — but Simpson said “no.”

Galanter’s co-counsel during the 2008 trial, Gabriel Grasso, testified at Simpson’s recent hearing that while Galanter told him he would talk with Simpson about a proposed plea deal, Galanter never told Grasso why he rejected it. Grasso said he didn't know if Simpson was even told, reported The Christian Science Monitor.

Last year, the U.S. Supreme Court reviewed whether a lawyer’s failure to disclose the terms of a favorable plea offer was a violation of the Sixth Amendment.

According to the Supreme Court, Galin Frye was charged with a felony for driving with a revoked license. The district attorney sent Frye's lawyer a letter offering a reduced charge and 90 days in jail. The lawyer never told Frye about the plea offer.

Frye subsequently went to court without a deal and was sentenced to three years in prison. He filed a claim alleging ineffective assistance of counsel. The Supreme Court held that "the Sixth Amendment right of effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected."

The court concluded in Missouri v. Frye that defense counsel did not communicate the formal offer.  As a result defense counsel did not render effective assistance of counsel. However, the court did not limit itself to that conclusion.

Justice Kennedy went further and suggested that defendants are entitled to effective counsel during plea negotiations. How did he define that duty?

He didn’t. Kennedy acknowledged the difficulty in defining the responsibility of counsel in negotiating a plea. According to Professor Rishi Batra, “By explicitly linking bargaining and negotiation to the duties of the counsel during the plea bargain process,” the Sixth Amendment requires not only communication of pleas but also adequate assistance of counsel in negotiating pleas.

For Simpson, if a plea was offered and never communicated to him he may be entitled to a new trial. If the court finds Simpson’s counsel ineffective for failing to pursue plea negotiations, the implication for all defendants is potentially enormous.

Defense counsel in every criminal case may be required to conduct a thorough investigation of the background of the defendant to explore any possible issue that might help in negotiating an effective plea bargain. 

Is this the dawn of “criminal negotiation counsel” working in tandem with trial counsel?  The roles of a negotiator and litigator are different, as are the skill sets, but both may soon be required to provide effective legal representation in criminal 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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A Team Approach to Criminal Defense

Matthew T. Mangino
The Crime Report
June 4, 2013

As fewer and fewer dollars are spent on indigent defense—and as more and more people charged with a crime qualify for free legal counsel—representing criminal defendants has become increasingly more specialized and complicated.

More than a century and a half ago, Abraham Lincoln warned that “a person who represents himself has a fool for a client” (although when Lincoln practiced, most defendants, even those charged with serious criminal offenses, were expected to represent themselves if they could not afford an attorney).

Prior to the 1963 U.S. Supreme Court decision in Gideon v. Wainwright, 372 U.S. 335 (1963), it was not uncommon in a number of states for men and women charged with felonies to take on the county prosecutor alone.

Things were a bit simpler then.

Crafting a defense for a client, or oneself if unrepresented, did not have the sophisticated nuances of today’s complicated criminal prosecutions.

The protections that evolved through statute and case law are a testament to the unbiased philosophy of American jurisprudence. But those protections come at a cost.

Think about the layers of protection afforded by the U.S. Supreme Court:

• Mapp v. Ohio, 367 U.S. 643 (1961), fruits of an illegal search and seizure are inadmissible;
• Brady v. Maryland, 373 U.S. 83 (1963), suppression of favorable evidence for the defense;
• Miranda v. Arizona, 384 U.S. 436 (1966), required suspects be informed of their rights;
• Bruton v. U.S., 391 U.S. 123 (1968), confession of codefendant violates the confrontation clause of the Sixth Amendment.

More examples: Strickland v. Washington, 466 U.S. 668 (1984), defined ineffective assistance of counsel; and Padilla v. Kentucky, 559 U.S. 356 (2010), the collateral consequences of a criminal conviction on immigration status must be taken into account.

The federal criminal code has expanded by 67 percent since 1980. Navigating through the labyrinth of criminal statutes, and digesting the expanding reach of appellate decisions on a state and federal level, has become burdensome.

Accordingly, representing criminal defendants has become more complex and specialized.
Last year, the U.S. Supreme Court in Missouri v. Frye, 132 S.Ct. 1399 (2012) ruled that defense counsel must communicate a formal offer, and that failure to do so represents ineffective assistance of counsel. However, the Court did not limit itself to that conclusion.

Justice Anthony Kennedy went further and suggested that defendants are entitled to effective counsel during plea negotiations. How did he define that duty?

He didn’t.

Kennedy acknowledged the difficulty in defining the responsibility of counsel in negotiating a plea. According to Professor Rishi Batra, “by explicitly linking bargaining and negotiation to the duties of the counsel during the plea bargain process,” the Sixth Amendment requires not only communication of pleas but also adequate assistance of counsel in negotiating pleas.

A look at death penalty litigation is instructive. There was a time when a single lawyer could negotiate a plea seeking to avoid the death penalty, litigate the case at trial, and then present the defendant’s interests at sentencing.

Today, a team of lawyers is needed to defend a capital case: including a litigator to try the case, and a mitigation specialist to provide background for plea negotiations and to present evidence during the penalty phase.

It was the death penalty that first introduced the idea of free legal counsel for indigent defense. In Powell v. Alabama, 287 U.S. 45 (1932), 30 years before Gideon, the U.S. Supreme Court said that states must provide counsel to those accused of capital murder.

And now, capital punishment is providing the example for competent defense in serious criminal cases.

Many litigators spend countless hours preparing a case for trial. They spend very little time getting ready for plea negotiations.

Preparation for plea negotiation requires techniques that are different from trial preparation. Compromise and concession are often not effective trial tactics.

Is this the dawn of the “team” approach to criminal defense?  Do serious felonies require “negotiation counsel” to advocate for pleas and “trial counsel” to litigate?

The roles of a negotiator and litigator are different, as are the skill sets, but both may soon be required to provide effective legal representation in criminal cases.

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

The Cautionary Instruction: Concern abounds over DNA ruling

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 7, 2013

When U.S. Supreme Court Justice Antonin Scalia sat down to write a dissent to the Court’s decision this week permitting warrantless collection of DNA from suspects, he got right to the heart of his discontent with his colleagues. He wrote, “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Alonzo King’s DNA was taken in Maryland when he was arrested for allegedly waiving a gun at some people. The police subsequently tied King's DNA to an unsolved rape, for which he was ultimately convicted and now sits in prison.

In Maryland v. King, No. 12-207, the U.S. Supreme 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, meaning it had to be justified as reasonable under the circumstances. It was, he said, 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.”

Scalia says that Kennedy’s argument is disingenuous. "The court's assertion that DNA is being taken, not to solve crimes, but to identify those in the state's custody taxes the credulity of the credulous," he wrote.

Scalia concedes that solving crimes is “a noble objective," but Scalia writes, “it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."

DNA collection ignites the passions of many. The Los Angeles Times wrote, “Although DNA analysis is new, the constitutional issue raised by this case is a familiar one: When should society's interest in detecting and punishing crime override an individual's right to privacy? Obtaining DNA from people arrested for (but not convicted of) a serious crime may close some cold cases. But so would taking DNA from people arrested for minor offenses — or from citizens applying for a driver's license or gun permit. Or from all of us. The court's unwise decision makes such additional intrusions less unthinkable.”

Dr. Cyril Wecht, former Allegheny County Medical Examiner and renowned pathologist, says don’t believe government officials when they say, “We’re only doing it for identification. We’re not doing it to determine whether or not you have a predisposition for diabetes, hypertension, or so on. Nobody else is going to get this information.”

All 50 states collect DNA from people who have been convicted of crimes. Twenty-eight states and the federal government routinely collected DNA samples from arrestees prior to the Court’s decision.

Pennsylvania Senate Majority Leader Dominic Pileggi has now proposed a bill that would require police to collect DNA after arrest for “serious felonies.”

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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