Wednesday, July 31, 2013

Federal Judges Warn of Crisis in Public Defender Funding

Judges and lawyers went to Capitol Hill last week to once again warn of the dangers of inadequate federal court funding, even as lawmakers moved forward with bills that would restore budget cuts that are crippling the nation’s public defender and clerk offices, reported The National Law Journal.

Judge Julia Gibbons of the Court of Appeals for the Sixth Circuit and chairwoman of the U.S. Judicial Conference’s budget committee, told a Senate subcommittee that the nearly $350 million in cuts to the courts this year under the across-the-board government spending reductions called sequestration, have been “devastating” and “painful.”

Clerks and probation and pretrial offices will lose as many as 1,000 staff and implement 8,600 furlough days during 2013, Gibbons said, which will slow civil and bankruptcy cases and harm public safety and effective representation by counsel. “If funding levels remain flat or decline, it compromises the constitutional mission of the courts,” Gibbons testified

Michael Nachmanoff, federal public defender for the Eastern District of Virginia, said that the nation’s federal defender system has lost than 200 employees and will be even worse off when the new budget starts on October 1, 2013. Federal defenders will be forced to terminate up to half their employees and close branch offices if funding stays at the same level, Nachmanoff told the Senate Subcommittee on Bankruptcy and the Courts. “If action is not taken immediately to save the program, the federal defender system will be devastated,” Nachmanoff said.

To read more Click Here

 

Tuesday, July 30, 2013

Alaska prosecutors: 'No more plea bargains'

The Alaska Department of Law, the state's prosecutors, will no longer negotiate plea deals for lesser sentences for Alaskans accused of serious crimes and domestic violence,  reported the Anchorage Daily News.

The change of policy, which took effect last week, bars plea bargains involving sentences for the most serious classes of felony cases, as well as all cases involving sexual assault, sexual abuse of a minor and domestic violence, said deputy attorney general Richard Svobodny.

A plea bargain is an agreement between a prosecutor and defendant in which the defendant agrees to plead guilty in exchange for a lesser charge or a more lenient sentence, avoiding a trial.

Nationally, between 90 and 95 percent of all criminal cases are settled through such agreements, according to a 2011 U.S. Department of Justice study. Attorneys say the statistic is roughly the same in Anchorage.

Under the new policy, prosecutors can offer defendants the opportunity to be charged with a less serious crime. But they can't offer a deal that changes the length of a sentence. Only a judge can do that.

The idea is that judges should be the ones determining sentences, not prosecutors or defense attorneys, Svobodny said.

Attorneys say the policy could flood already-stretched courts with criminal defendants exercising their right to trial and generate huge new costs for prosecution and incarceration, which would eventually be borne by the public.

In 1975, Alaska's then-attorney general banned all forms of plea bargaining. Dire predictions of system overload didn't pan out, though misdemeanor trials increased substantially in the immediate aftermath of the ban, a 1977 Alaska Judicial Council study found.

A 1990 judicial council study found that the ban had eroded and the practice was again commonplace.

To read more Click Here

Monday, July 29, 2013

Sex offender not reporting to state police arrested for child rape

Pennsylvania State Police are looking at how to improve notification of local police when a Megan's Law offender fails to check in as required, reported the Associated Press.

That's what authorities say happened with in Lancaster County, Pennsylvania where Harold Leroy Herr allegedly kidnapping a 5-year-old girl July 11and sexually assaulting her.

Herr is 73-years-old and was required to check in with authorities in person four times annually for his 1990 conviction for kidnapping and child rape. He served 20 years -- his maximum sentence -- and was released in May 2010. He apparently checked in as required until this spring.

He failed to check in during a 10-day period ending May 7, according to Southern Regional Police, who charged him July 12 with the Megan's Law violation.

By then, authorities were looking at Herr for the abduction.

"We make every effort to make notifications as expeditiously as possible and continually assess our operations for ways to improve efficiency and timeliness," said a state police spokeswoman.

But there's no time frame under Megan's Law in which state police must notify local departments about a person failing to check in, said the spokeswoman. The agency is looking into generating automated notifications, and would have to create a system to do so.

State police have been dealing with a notification backlog tied to the Adam Walsh Act, which required that some 12,500 Megan's Law registrants in the state register with state police between Dec. 20 and March 20.

To read more Click Here

Sunday, July 28, 2013

Armed homeowner 'protecting' his home killed by police

Did Stand Your Ground play a role in homeowners death?

Police officers in Fort Worth, Texas responding to a burglary alarm call went to the wrong house because of poor lighting and fatally shot an armed homeowner, according to the Fort Worth Star-Telegram.

Officers B.B. Hanlon and R.P. Hoeppner were dispatched to an Fort Worth address at 12:51 a.m. May 28. But after arriving at 12:58 a.m., they “inadvertently began searching” the wrong address across the street, where 72-year-old Jerry Waller lived.

Officers “approached the west side of the house near the garage that is located on the southwest corner of the home with the knowledge that there was a possible burglary in progress. There is no lighting around the home and the officers had only the use of their flashlights,” according to the affidavit. As the officers approached, they encountered Waller, who “was armed with a handgun standing near the corner of the home,” according to the affidavit.

The officers identified themselves and ordered Waller to drop the gun, but he pointed it at the officers, prompting Hoeppner to shoot Waller, according to the affidavit.Waller was pronounced dead at 1:26 a.m. inside the garage. Waller’s relatives have previously disputed the officers’ account, accusing police of “misrepresenting details of the incident.”

“My father never stepped outside of his garage,” son Chris Waller told the Star-Telegram the day after the shooting. “He was shot multiple times in the chest only a few steps away from the doorway to his kitchen.”

Would Jerry Waller be dead today if he hadn't grabbed his gun and went out into to his garage to protect his home?  Had he called 911 and insured his doors were locked he would be alive today. However, a brash move to defend his home--emboldened by the Castle Doctrine and Stand Your Ground--needlessly cause his demise.

To read more Click Here

 

Saturday, July 27, 2013

Man too obese for execution dies in prison


A 450-pound former death row inmate who was deemed too obese to be put to death has died of natural causes in prison.

Ronald Post died on the morning of July 25, 2013 at an Ohio prison hospital where he'd been treated on and off since 2011, a state prisons spokeswoman said. He was a week shy of his 54th birthday.

Post argued in federal court that executing him would amount to cruel and unusual punishment because it would take a long time for a prison official to find a muscle for the lethal injection to be administered.
 
His death comes seven months after he was granted clemency by the governor, when his case drew national attention because of his  weight.

Spokeswoman Ricky Seyfang said the Ohio Department of Rehabilitation and Correction classified the death as 'expected.' 

She said privacy laws prevented her from divulging whether Post's weight was a factor in his death.

Post was sentenced to death for killing Elyria motel clerk Helen Vantz on Decemeber 15, 1983.

His attorneys sought mercy for Post ahead of his January 16 execution date on the grounds that he was so obese that he could not be executed humanely.

Republican Governor John Kasich granted Post clemency in December citing poor legal representation, not his weight.

To read more Click Here


Friday, July 26, 2013

GateHouse: Feds use racketeering law to hammer state offenders

Matthew T. Mangino
GateHouse News Service
July 26, 2013
 
The FBI is hard at work in your neighborhood. That stick-up at the convenience store across town may be a federal offense.
 
There are a growing number of cases around the country where FBI agents and federal prosecutors are using the weight of federal law to go after what might typically be seen as the job of state law enforcement — prosecuting people who rob pharmacies, bars, shops and gas stations.
 
Why is the federal government jumping in and prosecuting cases that have been traditionally the province of state prosecutors? The rationale is straightforward: The federal statutes have more teeth than the state statutes.
 
Local robberies are being prosecuted under the Hobbs Act, a World War II-era law meant to target union racketeering and organized crime. The law was named for Congressman Sam Hobbs, a Democrat who represented Selma, Ala., in the House of Representatives during the 1930s and 1940s.  
 
Now the FBI and other federal law enforcement agencies are using the Hobbs Act to go after robbers of all sorts. The feds use an interstate commerce argument to get jurisdiction. The goods inside a store, shop, pharmacy or mini-mart crossed state lines to get there.
 
The connection between neighborhood stick-ups and the act’s original focus — racketeering and organized crime — is nebulous at best. The act is even used to prosecute those who rob drug dealers.
 
State prosecutors actually pursue collaborative relationships with federal prosecutors so that some state offenders get longer federal sentences than are available in state courts for the same offense.
 
If duly elected state legislators wanted to enact laws that could result in offenders receiving sentences in line with federal penalties, don’t they have the authority to do so? If a legislator, or the entire legislature, is perceived as soft on crime, voters can put them out of office. If voters choose to keep those legislators, then by and large, the electorate has accepted the legislature’s position on law and order.
 
A state prosecutor handing off a case to a federal prosecutor is essentially an end-run around the law of a particular state in favor of a harsher federal sentence. Every time a state prosecutor capitulates her authority under state law in favor of a federal prosecution she thwarts the representative form of government.
 
Kent Wicker, a former federal prosecutor, told the Center for Effective Justice he sees nothing wrong with prosecuting such cases in federal court “regardless of how little commerce is affected,” because armed robbery is a serious and dangerous crime. He said the “key is to use good judgment on selecting the cases and charging them in a way that’s fair.”
 
Fairness is a concern when it comes to federal criminal statutes. Congress has launched an investigation into the proliferation of federal criminal laws. The problem is known as overcriminalization and it is not just a federal problem. There is no dearth of criminal statutes on the state level. For instance, Texas lawmakers have created over 1,700 criminal offenses.
 
However the problem here is not creating new laws — it is the overly broad application of existing law. Although crime rates are historically low, the federal prison system is operating at almost 40 percent over capacity. A recent report by the Congressional Research Service found that the federal prison population has grown by almost 790 percent since 1980. Yet federal prosecutors are looking for state offenders to throw in federal prison.
 
The goal for every prosecutor is to seek justice. The selection of a fraction of robberies — and there are a lot of them — for the sole purpose of increasing the range of penalties appears to be arbitrary and unfair. When the robber on the north side of town gets twice the sentence as the robber on the south side of town, justice has not been served.
 
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.

The Cautionary Instruction: The cost of keeping in touch, prisons gouge inmates’ families

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 26, 2013

A telephone may be a prisoner’s only connection with the outside world. Often incarcerated far from home, some prisoners don’t get visitors -- the telephone is a lifeline.

That connection maybe the difference between a former prisoner becoming a productive member of society or returning to prison.

According to the NAACP, studies have demonstrated that maintaining a connection with loved ones, friends and families while incarcerated is a key component in reducing recidivism.

Phone calls from the outside do more than keep prisoners entertained. They've actually been shown to keep them from re-offending, maintaining family connections that prove vital when inmates leave prison.

The Post-Gazette reported that prisoners are paying exorbitant rates to call their loved ones. To dial an out-of-state number, an inmate in a Pennsylvania state prison pays $9.35 for a 15-minute call. At the Allegheny County Jail, they pay $10.65.

In all but a few states the phone-service providers return a large share -- sometimes more than half—of revenue collected from each phone to the facility in “commissions”. These commissions provide a ready source of discretionary money for cash-strapped prison systems to cope with a rising inmate population. But they do so by taking money from those whom Foster Campbell, one of Louisiana’s five public-service commissioners, called “the least of these…poor people in bad situations [with] no voice…and no political clout.”

In 2012, Pennsylvania took in $6.9 million as its share of prisoner phone call charges. Slightly less than half went to buy amenities for inmates; the rest went to the state's general fund.

Allegheny County also netted $1.1 million last year for the jail's prisoner welfare expense trust fund. Inmates using one of the jail's 336 phones pay a $1.80 connection fee for local calls and $2.70 for out of state. They're then charged between 4 and 53 cents a minute, depending on what area code they're calling.

Supporters of the telephone fees argue that the profits cover higher costs of monitoring inmate calls and can offset the prison rehabilitation programs. Disconnecting inmates from family undermines a key element of rehabilitation. The policy takes away a powerful means of fighting recidivism. In the end taxpayers pay a higher price to lock up the same people over and over. 

The Federal Communications Commission (FCC) has officially proposed new rules that would lower interstate pay-phone rates for prisoners and their families, an issue that has been on the table for nine years.

The FCC said it is proposing rate caps, eliminating per-call fees, and other changes that would lower the costs of keeping in touch for inmates, who in some states pay as much as $15 for a 15-minute phone call.

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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Alabama executes man who volunteered to die


The 21st Execution of 2013

 Andrew Reid Lackey was executed in Alabama on July 25, 2013 for the 2005 murder of an 80-year-old World War II veteran he was trying to rob, reported The Birmingham News.

Lackey, 29, was pronounced dead at 6:25 p.m. at Holman Correctional Facility.

He became the first inmate executed in Alabama since Oct. 20, 2011. Lackey had dropped all appeals and volunteered for execution.

Lackey shot, beat and stabbed Charles Newman at Newman’s Limestone County home. Prosecutors said he was trying to rob Newman. Lackey was a friend of Newman’s grandson.

Lackey, wearing glasses and with trim, dark hair, was already strapped to a gurney when a curtain opened at 6 p.m. to allow witnesses to see him. He looked around briefly, then laid his head on the pillow.

Holman Warden Gary Hetzell read the execution order and asked Lackey if he had anything to say.
"No sir, I don't," Lackey replied.

Lackey’s mother, father, brother and aunt witnessed the execution in silence, his mother and father holding hands. The four had visited Lackey earlier in the day, said a Department of Corrections spokesman.

A man and two women witnessed the execution on behalf of the victim's family. The Department of Corrections did not have their names.

Shortly after Lackey declined to make a statement, Holman Chaplain Chris Summers approached the gurney, touched Lackey's hand and spoke to him. Lackey nodded and Summers knelt to pray.

The drugs seemed to take effect within a couple of minutes. Lackey's chest and abdomen convulsed slightly for several minutes. That was followed by what appeared to be several minutes of shallow breathing. He remained still and quiet for several minutes until a corrections officer closed the curtain at 6:15 p.m.

To read more
Click Here

 


Thursday, July 25, 2013

USC campus police: It's not rape if he doesn't orgasm

The University of Southern California is facing a federal civil rights investigation after students filed a complaint that alleged the school ignored campus rape and failed to prosecute attackers even after they confessed, according to the website Talking Points Memo.

One anonymous USC student involved in the complaint said that campus police had decided she wasn't raped because her alleged attacker did not orgasm, the Huffington Post reported Monday.
"Because he stopped, it was not rape," she was told, per the complaint. "Even though his penis penetrated your vagina, because he stopped, it was not a crime."

The campus police did not refer the student's case to the Los Angeles police department.

Another student, according to the complaint, was told by the university Department of Public Safety that women should not "go out, get drunk and expect not to get raped" when she tried to report a rape.

The U.S. Department of Education's Office for Civil Rights is investigating potential violations of Title IX, the federal gender equality law that criminilizes a failure to respond to claims of sexual violence.

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Wednesday, July 24, 2013

Texas carries out nation's 20th execution

The 20th Execution of 2013

 Vaughn Ross was executed on July 18, 2013 for the January 2001 fatal shootings of an 18-year-old woman with whom he had been feuding and an associate dean at Texas Tech University who was with her at the time, reported the New York Daily News.

No relatives or friends of Ross were there for the execution, yet he told them he loved them, thanked them for their support and urged them to stay strong.

"You know I don't fear death," he said, strapped to the death chamber gurney. "I know we weren't expecting this, but this is what it is. We know the lies that were told against me in court. We know it's not true."

As the lethal dose of pentobarbital began taking effect, Ross took several breaths, then began snoring. He let out a gurgle, snored once more and then stopped all movement. He was pronounced dead at 6:38 p.m. CDT, 22 minutes after the lethal drug was injected.

Ross was executed for the slayings of Douglas Birdsall, 53, the associate dean of libraries at Texas Tech University, and Viola Ross McVade. McVade was the sister of Ross' girlfriend and was not related to the convicted killer.

Authorities believed Birdsall and McVade were ambushed in an alley behind Ross' apartment after Ross had ordered McVade's sister to leave. A bicyclist later spotted their bodies in a car in a gully at a Lubbock park.

Court documents said Birdsall had been looking for a prostitute and that a friend of McVade introduced him to her that evening. Prosecutors contend McVade was the intended target, and that Birdsall was at the wrong place at the wrong time.

A brother of Birdsall was among people watching the execution through a death chamber window. He declined to speak with reporters.

Birdsall's son, Nathaniel, told the Lubbock Avalanche-Journal, his father raised him to believe the death penalty was unjust.

"I am saddened that the loss of two lives will be needlessly compounded by the taking of a third," he said.

At least six other Texas prisoners have execution dates set for the coming months, including one later this month.

To read more click here.

Tuesday, July 23, 2013

Texas executes killer of retired deputy sheriff

The 19th Execution of 2013

On July 16, 2013 Texas executed John Manuel Quintanilla for gunning down a retired deputy sheriff at a game room in Victoria, about 125 miles southwest of Houston, reported CBS News.

The 2002 slaying came just a few months after Quintanilla had been released from prison after serving a sentence for several burglary convictions.

Asked to make a final statement before his execution, Quintanilla told his wife he loved her.

"Thank you for all the years of happiness," he said. He never acknowledged his victim's friends or relatives, including two daughters, who watched through a window.

As the lethal drug began taking effect, he snored about a half dozen times, then stopped breathing. He was pronounced dead 15 minutes after being given the drug.

Quintanilla's wife, a German national who married him by proxy while he was in prison, watched through an adjacent window and sobbed.

Quintanilla's punishment was carried out after the U.S. Supreme Court refused two last-day appeals.

His lawyers contended his confession was coerced by authorities threatening to also charge one of his sisters and that the statement improperly was allowed into evidence at his trial in 2004. The lawyers obtained affidavits from two jurors who said the confession was key to their decision to convict him.

"It is clear that Quintanilla would not have been convicted of capital murder if his confession had not been admitted - a fact confirmed by two of his jurors," appeals lawyer David Dow told the high court.

"There wasn't any coercion whatsoever," Dexter Eaves, the former Victoria County district attorney who was lead prosecutor at the trial, recalled last week. He also said that while the robbers, who fled with about $2,000, were masked, witnesses were able to "describe very clearly who the triggerman was."

To read more Click Here



Monday, July 22, 2013

Zimmerman wants to be a lawyer, maybe

After his acquittal on murder charges George Zimmerman may go to law school to help people wrongly accused of crimes a close friends told Reuters.

"Everybody said he was a cop-wannabe but he's interested in law," Leanne Benjamin said. "He sees it as a potential path forward to help other people like himself."

Over dinner with Zimmerman recently, Benjamin said he told them he would like to go to law school.
"I'd like to help other people like me," she quoted him as telling them."

Never mind that Zimmerman had a GPA that hovered at just above 2.0 at Seminole State Community College where he failed to even earn an associates degree.

Zimmerman's attorney believes it. "He has a real interest in the law and ... prosecuting appropriately - not like what he got - is something he's very interested in. I will not be surprised if he ends up in criminal law," Attorney Mark O'Mara said. "His dad was a judge, and he wants to be a prosecutor or a lawyer."

To read more: http://www.reuters.com/article/2013/07/14/us-usa-florida-shooting-future-idUSBRE96D0DT20130714

Sunday, July 21, 2013

FBI: Hair Analysis Under Scrutiny

The Innocence Project and the National Association for Criminal Defense Lawyers said today that the FBI has agreed to  review more than 2,000 criminal cases in which the FBI conducted microscopic hair analysis of crime scene evidence.

The agreement was reached after three men who served long prison terms were exonerated by DNA testing in cases in which FBI hair examiners provided testimony which exceeded the limits of science.

The two organizations said the U.S. Justice Department agreed for the first time not to raise procedural objections like statute of limitations and procedural default claims in the cases of defendants seeking to have their convictions overturned because of faulty FBI microscopic hair comparison laboratory reports and/or testimony. 

"The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented. It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles," said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

http://www.thecrimereport.org/news/crime-and-justice-news/2013-07-defense-groups-say-fbi-will-review-2000-cases-for-po

Saturday, July 20, 2013

GateHouse: Hold on, Zimmerman case far from over

Matthew T. Mangino
GateHouse News Service
July 19, 2013
 
George Zimmerman is not guilty. A jury comprised of six women found that prosecutors for the state of Florida failed to prove Zimmerman’s guilt beyond a reasonable doubt. The trial has ended, but this case is far from over.
 
Those six women did not find that Zimmerman was innocent — he was merely not guilty. What does that mean? Zimmerman, and any defendant for that matter, does not have to prove anything during a criminal trial. The prosecution has the burden of proving the state’s case.
 
That burden in a criminal case is beyond a reasonable doubt. A reasonable doubt is often difficult to define. One Zimmerman juror told CNN, “after much confusion over the jury instructions” the panel reached a not guilty verdict on the manslaughter charge.
 
Here is how Florida defines reasonable doubt: “If, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt.”
 
If that doesn’t help, here is what a reasonable doubt isn’t in Florida: “A mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence [a juror] to return a verdict of not guilty if [the juror has] an abiding conviction of guilt.”
 
The fact that Zimmerman is not guilty and not innocent is significant. That opens the door to the U.S. Department of Justice to pursue civil rights action against Zimmerman.
 
"The Department of Justice … and the Federal Bureau of Investigation continue to evaluate the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial," the Justice Department said in a statement after the verdict. "Experienced federal prosecutors will [now] determine whether the evidence reveals a prosecutable violation.”
 
The Department of Justice doesn’t normally investigate civil rights violations allegedly committed by one person against another — a single person normally cannot violate the civil rights of another unless they work for the local, state or federal government. That is why federal prosecutors rarely bring criminal civil rights cases against people who are not law enforcement officers or otherwise working for the government.
 
A criminal verdict of not guilty does not preclude a wrongful death lawsuit. A successful civil lawsuit following a not guilty verdict in a criminal trial would be reminiscent of the O.J. Simpson case. The family of Ron Goldman, who was killed along with Nicole Brown Simpson in 1994, successfully brought a lawsuit against Simpson following his not guilty verdict in 1995.
 
In a wrongful death lawsuit, Martin's family would not have to prove Zimmerman's guilt "beyond a reasonable doubt." Rather, they would only have to prove by a preponderance of the evidence that Zimmerman wrongfully caused Trayvon Martin’s death.
 
A preponderance of the evidence means that one side has more evidence in its favor than the other, even by the smallest margin. The scales of justice must tip, ever so slightly, in favor of one side over the other.
 
Although the Zimmerman case garnered a lot of attention in much the same way that Simpson’s case was a media sensation attention back in 1995, there’s a big difference between Zimmerman and Simpson. Zimmerman doesn’t have any money. Simpson was wealthy with a lot of assets.
 
"A civil case doesn't make sense from a financial perspective — Zimmerman doesn't have O.J.'s deep pockets," criminal defense lawyer Mark Eiglarsh told the Wall Street Journal. Martin's family "would spend a lot of money, time and energy solely for the satisfaction of putting Zimmerman on the stand."
 
What is it worth to the Martin family and their supporters to hear Zimmerman’s version, under oath, of Trayvon Martin's killing?
 
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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Friday, July 19, 2013

The Cautionary Instruction: Murder doesn't pay

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 19, 2013

Abraham Lincoln once bemoaned the guy who killed his parents and then wanted the court to take mercy on him because he was an orphan. The story may be apocryphal, but it is not far-fetched.

In February, Colin Abbott pleaded no contest to killing his father and stepmother whose charred remains were found on their property in Butler County in July 2011. Abbott killed his parents to cash-in on his father’s $4 million estate.

His plea to third degree murder resulted in a sentence of 35 to 80 years in prison. Abbott then filed a motion to withdraw his guilty plea citing concerns that he was under "emotional distress" at sentencing and did not have enough time to consider the decision.

In April, a Butler County judge rejected Abbott’s motion finding that he failed to prove a “manifest injustice” existed allowing the withdraw of a plea after sentencing. Abbott is appealing the court’s decision and wants the civil action seeking to divest his interest in his father’s estate pursuant to the Slayer’s Act held in abeyance pending his appeal.

The Pennsylvania Slayer’s Act provides that “[n]o slayer shall in anyway acquire any property or receive any benefit as the result of the death of the decedent[.]” The Act defines a “slayer” as “any person who participates, either as principal or as an accessory before the fact, in the wilful and unlawful killing of any other person.

A conviction does not automatically divest a killer from benefiting by her evil deed. The Slayer’s Act is a civil proceeding wherein a party must prove by a preponderance of the evidence that the beneficiary of a will or insurance proceeds intentionally caused the decedent’s death.

Another interesting interpretation of the Slayer’s Act recently played out in Bucks County, Pennsylvania. Dorleen Burkland was accused of murdering her husband, Michael Burkland. Their son Gabriel Burkland, alleged that he was entitled to the proceeds of a life insurance policy that named Dorleen as beneficiary.

Gabriel told the court that after consulting with an attorney, he promised his mother that he would use the proceeds of the life insurance policy to hire an attorney to defend her on the murder charge. Michael’s brother successfully used the Slayer’s Act to suspend the payout until after the criminal trial. Dorleen was subsequently convicted of first degree murder.

A classic example of a Slayer’s Act case ended in Florida last summer. Narcy Novack and her brother murdered her husband Ben, the heir to the Fontainebleau Hotel fortune, and Ben’s mother Bernice to collect the Novack’s assets worth more than $10 million.

Narcy was convicted of the murders and sentenced to life in prison. Her daughter, the stepdaughter of Ben Novack, collected all the assets.

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Thursday, July 18, 2013

Mangino talks 'Stand Your Ground' on KDKA-TV News


This afternoon I spoke with KDKA-TV's Jon Delano about Pennsylvania's castle doctrine, Florida's stand your ground, self-defense and George Zimmerman.

Click here to watch the interview.  Below are some excerpts from the interview.

“[It] went through the House and Senate with really huge support,” former Lawrence County District Attorney Matthew Mangino told KDKA political editor Jon Delano. “There were only four senators who opposed it.”

Under the new law, a person in any lawful place outside his home “has no duty to retreat and has the right to stand his ground and use force, including deadly force if . . . (he) believes it is immediately necessary to do so to protect himself against death, serious bodily injury, kidnapping, or sexual intercourse by force or threat.” (18 PA consolidated statutes 505(b)(2.3)).

Mangino says many prosecutors don’t like this law. “We should not authorize lethal force when someone has the ability to get away from that dangerous situation,” he said.


AG Holder takes stand against 'stand your ground'

U.S. Attorney General Eric Holder Jr., recently took a strong stance against what he called “senseless” state stand-your-ground laws.

“It’s time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods,” Holder said during a speech to the NAACP. “These laws try to fix something that was never broken.”

“There has always been a legal defense for using deadly force if – and the ‘if’ is important – no safe retreat is available,” Holder said. “The list of resulting tragedies is long and – unfortunately – has victimized too many who are innocent.”

He called on the NAACP to join in a “collective obligation – we must stand our ground – to ensure that our laws reduce violence and take a hard look at laws that contribute to more violence than they prevent.”

To read more: http://www.law.com/jsp/nlj/PubArticlePrinterFriendlyNLJ.jsp?id=1202611192797

Wednesday, July 17, 2013

PA Supreme Court Upholds Mandatory Judicial Retirement, Again

The Pennsylvania Supreme Court has again found the state's mandatory judicial retirement age of 70 to be constitutional, reported the Legal Intelligencer.

After ruling similarly last month in Driscoll v. Corbett and Tilson v. Corbett, the justices in a per curiam opinion in Friedman v. Corbett found the additional issues in that case don't overcome the bar set in Driscoll. The court ruled the constitution allows for the people to tailor how its government operates, including term limits and retirement ages.

In Friedman, the justices first denied the plaintiffs the opportunity to develop a factual record in the case, finding evidence of societal changes since the retirement age was put in place in 1968 or the understanding of the electorate that they were voting for judges who couldn't finish full terms was not going to have a material impact on the constitutionality of the retirement age.

Additionally, evidence is unnecessary relative to the claim that the age-70 retirement mandate is irrational, since this claim represents a legal conclusion that we rejected in Driscoll," the justices said. 

The justices said an elector has the right to choose whom to vote for, but is not entitled to the judge's services beyond his term of office.


To read more click HERE

Tuesday, July 16, 2013

Drug courts reduce drug use and criminal offending

Deputy United States Attorney General James M. Cole touted drug courts at a recent National Association of Drug Court Professionals Conference in Washington, DC.  Here are excerpts from his remarks:

Research funded by the National Institute of Justice shows that local drug courts do reduce drug use and criminal offending.  In particular, programs that target individuals who are drug-dependent and at high risk for recidivism have been proven to be especially effective and yield the greatest return on investment.

A drug court is most effective when it has a clear and focused screening process and relies on a validated risk assessment instrument.  A drug court has better chances for success when it uses a system of graduated and immediate sanctions and incentives, when the process is understandable and meaningful to participants, and when the process is delivered in a way that can be perceived as fair and equitable.  And it works best when those running the program establish a continuum of care that supports relapse prevention, community integration, and aftercare services.  These are critical strategies, founded on science, that can help maximize the drug court approach, and need to be built into our programs.

The truth is that drug courts may not be suitable for everyone who has committed a drug crime.  But for those cases where it is a good fit, they can make the difference between a continuing cycle of crime and a changed, drug-free life. 

To read more: http://www.justice.gov/iso/opa/dag/speeches/2013/dag-speech-130715.html

Monday, July 15, 2013

Indianapolis on pace to have 50% increase in homicides

From 2009 to 2011, Indianapolis touted homicide numbers that remained under 100. Now, after last year’s climbed back over 100, the city is suddenly on pace for about 150. Sixteen people were victims of homicide in June, the deadliest month in an especially deadly year, reported the Indianapolis Star.

Not surprisingly, such statistics and the heartbreak, frustration and anger that accompany them have fueled headlines, intense community discussion and calls for decisive action. They also raise difficult questions:

What is causing the increase? What can be done about it? Has the city suddenly become more violent, more dangerous?

Homicides make headlines, but criminologists remind us that they are statistically a very small part of violent crime. A better measurement of violence in a community is the rate of aggravated assaults and shootings. This year, Public Safety Director Troy Riggs noted, there have been just nine more shootings overall than last year — 257-248, according to Indianapolis Metropolitan Police Department crime data. Perhaps more telling, Riggs said, aggravated assaults are actually down by 14.7 percent over a year ago, dropping from 914 to 779.

To read more: http://www.indystar.com/article/20130713/NEWS02/307140007/Homicides-rate-soars-Indy-s-top-cop-says-city-isn-t-more-dangerous?gcheck=1&nclick_check=1

Sunday, July 14, 2013

Teen homicide drops to lowest level in 30 years

Homicide rates among teenagers and young adults have dropped to the lowest level in 30 years, according to the Centers for Disease Control and Prevention, reported National Public Radio.

That's good news, but it still means about 4,800 young people under age 25 were murdered in 2010.
Teenagers and young adults remain more likely to be killed than older adults, and homicide is a leading cause of death in the young, behind motor vehicle accidents.

Homicide rates have dropped steadily since an uptick in the early 1990s, according to the CDC's Morbidity and Mortality Weekly Report. The homicide rate for people aged 10 to 24 was 7.5 per 100,000 in 2010, compared to 15.9 in 1993.

That mirrors a long decline in crime overall. There are plenty of theories for why that's happened, including better policing, higher incarceration rates, and the economic boom of the 1990s. But none of the theories have really been proved.

Indeed, scientists are at a bit of a loss to explain why we're seeing fewer murders and other crimes. "In short, we don't know," said Dr. Matthew Miller, an associate professor of health policy and management at the Harvard School of Public Health. "The usual suspects don't seem to explain it."

To read more: http://www.npr.org/blogs/health/2013/07/11/201098723/for-youths-fewer-homicides-but-still-many-deaths

Saturday, July 13, 2013

GateHouse: The right to remain silent not guaranteed

Matthew T. Mangino
GateHouse News Service
July 12, 2013
 
The U.S. Supreme Court recently ruled that the right to remain silent — that iconic right of television and movie fame — is really not as straightforward as one might think.
 
In fact, the U.S. Supreme Court made it clear that a suspect cannot invoke the right to remain silent by … well ... remaining silent.
 
The case decided late last month, Salinas v. Texas, arose from the 1992 murder of two men in Houston. The police found shotguns shells discarded at the crime scene.
 
The police questioned Genovevo Salinas, who was said to have attended a party at the victims’ apartment. When Salinas met with police he was not under arrest. He voluntarily submitted to questioning and was free to leave the police station at any time.
 
He answered questions for almost an hour but when asked by police if the shotgun shells found at the murder scene would match a shotgun found in Salinas’ home he stopped talking.
 
The police made a record of Salinas’ conduct once he stopped talking. According to the Supreme Court opinion authored by Justice Samuel A. Alito, Jr., Salinas “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.”
 
That conduct was used at his trial as evidence that he was hiding his guilt.  The Supreme Court agreed, finding that silence is not enough to invoke the right to remain silent. In an ironic twist a suspect must break his silence to benefit by his silence.
 
In 1965, the Supreme Court said it was not necessary to actually invoke the right to remain silent at trial. A criminal defendant need not take the stand and assert her Fifth Amendment right. That exception reflects the fact that a criminal defendant has an “absolute right not to testify.”
 
In the famous case of Miranda v. Arizona the Supreme Court held that a suspect who is in police custody, is under arrest, or at a minimum not free to leave, is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation and need not invoke the Fifth Amendment.
 
When Salinas was argued, his attorney suggested that it would be unfair to require a suspect untrained in the law to do anything more than remain silent in order to invoke his “right to remain silent.”
 
The Supreme Court has made the right to remain silent more complicated, and it will require those accused of a crime to be more informed about their rights and, more importantly, the decision will require an accused, under enormous pressure, to articulate the desire to invoke those rights.
 
The court admonished, “The Fifth Amendment guarantees that no one may be “‘compelled in any criminal case to be a witness against himself’; it does not establish an unqualified ‘right to remain silent.’”
 
The old cliche — ignorance of the law is no excuse — has never been more apropos. The court made it clear, “[I]t is settled that forfeiture of the privilege against self-incrimination need not be knowing.” In other words, an informed or intelligent waiver of the right to silence is not required. Ignorance is quite enough to open the door to having a suspect’s silence used against him.
 
Anyone, guilty or innocent, invited to the police station to talk about a murder is going to be nervous. The Supreme Court has now entrusted to the police the responsibility to make an unbiased interpretation of a suspect’s physical manifestations.
 
A failure to make eye contact, an awkward shift in one’s seat, a bead of sweat can result in a suspect, who has admitted nothing, being convicted.
 
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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Former Penn State President Goes After Louis Freeh


Penn State's former president Graham Spanier has initiated a libel and defamation suit against Louis Freeh, the former FBI director who a year ago produced a report for the school that was highly critical of Spanier's role in the child sex abuse scandal involving longtime assistant football coach Jerry Sandusky, reported the Associated Press.

Paperwork filed in Centre County, where the school is located, disclosed little about the nature of his claims but checked off a box on a court system form that described the case as "slander/libel/defamation."

The filing was made one day before the one-year anniversary of Freeh's report, which concluded that Spanier, late coach Joe Paterno and other high-ranking Penn State administrators failed to protect children against Sandusky. Under Pennsylvania law, those who believe they have been libeled or defamed have a year to initiate a civil lawsuit.

Calls and emails seeking comment from Freeh and from Spanier lawyer Elizabeth Ainslie were not returned. Along with Freeh, the paperwork also names as a defendant the law firm where Freeh works.

The Freeh report said Spanier told Freeh's investigators that he never heard anyone say Sandusky was sexually abusing children. But Freeh wrote it was more reasonable to conclude that Spanier, Paterno, athletic director Tim Curley and vice president Gary Schultz "repeatedly concealed critical facts relating to Sandusky's child abuse from the authorities, the university's board of trustees, the Penn State community and the public at large."

a district judge in the Harrisburg suburbs announced the preliminary hearing would be held for Spanier on July 29 in the county courthouse. The hearing will determine if there are grounds to forward the case to county court for trial.

To read more: http://www.yorkdispatch.com/ci_23644018/ex-penn-state-president-files-suit-against-freeh

Friday, July 12, 2013

The Cautionary Instruction: The ‘Guilty Mind’ disappears from federal prosecutions

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 12, 2013

At a time of historically low rates of crime, the federal prison system is operating at almost 40 percent over capacity. A recent report by the Congressional Research Service found that the federal prison population has grown by almost 790 percent since 1980.

Congress wants to know why federal prisons are bulging at the seams. They have launched an investigation into the proliferation of federal criminal statutes.

Federal lawmakers have been creating on average 55 new “crimes” per year, bringing the total number of federal crimes on the books to more than 5,000, with as many as 300,000 regulatory crimes. Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes.

The problem is known as overcriminalization and it is not just a federal problem. There is no dearth of criminal statutes on the state level. For instance, Texas lawmakers have created over 1,700 criminal offenses.

The problem goes beyond the number of laws -- the way the laws are crafted is a concern for many lawyers and scholars alike.

Boston lawyer Harvey Silvergate, author of Three Felonies a Day: How the Feds Target the Innocent, estimates that the average American now unknowingly commits three felonies a day, thanks to an overabundance of vague laws that render otherwise innocent activity illegal and an inclination on the part of prosecutors to reject the idea that there can’t be a crime without criminal intent.

For examples of outrageous federal prosecutions click here.

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."

"The recent growth of the federal code in all areas of life has brought with it an ever-increasing labyrinth of federal regulations, many of which also impose criminal penalties without a showing of mens rea, or criminal intent," judiciary committee chairman Representative Bob Goodlatte (R-Va.) said recently.

Last month, a panel of four attorneys told members of Congress that one way to fix the nation's bloated and convoluted criminal code is to require prosecutors to prove intent, especially when it comes to regulatory violations.

A 2010 study by The Heritage Foundation and the National Association of Criminal Defense Lawyers found that many of the criminal offenses Congress is enacting are fundamentally flawed. Not only do a majority of enacted offenses fail to protect the innocent with adequate mens rea requirements, many are so vague, far-reaching, and imprecise that few lawyers, much less non-lawyers, could determine what specific conduct they prohibit and punish.

George Terwilliger, an attorney, testified during a recent hearing on Capitol Hill that Congress could correct this problem by passing one overriding law that requires proof of intent for any federal crime in which mens rea is not currently a requirement.

Visit Ipso Factohttp://communityvoices.post-gazette.com/news/ipso-facto/item/37091-the-cautionary-instruction-the-guilty-mind-disappears-from-federal-prosecutions

Thursday, July 11, 2013

Examples of Outrageous Federal Prosecutions

Krister Evertson,  told Congress, “What I have experienced in these past years is something that should scare you and all Americans.” He’s right. Evertson, a small-time entrepreneur and inventor, faced two separate federal prosecutions stemming from his work trying to develop clean-energy fuel cells.

The feds prosecuted Mr. Evertson the first time for failing to put a federally mandated sticker on an otherwise lawful UPS package in which he shipped some of his supplies. A jury acquitted him, so the feds brought new charges. This time they claimed he technically had “abandoned” his fuel-cell materials - something he had no intention of doing - while defending himself against the first charges. Mr. Evertson, too, spent almost two years in federal prison.


The six agents, wearing SWAT gear and carrying weapons, were with the U.S. Fish and Wildlife Service raid the home of Kathy and George Norris.  They lived under the specter of a covert government investigation for almost six months before the government unsealed a secret indictment and revealed why the Fish and Wildlife Service had treated their family home as if it were a training base for suspected terrorists. Orchids. 

By March 2004, federal prosecutors were well on their way to turning 66-year-old retiree George Norris into an inmate in a federal penitentiary - based on his home-based business of cultivating, importing and selling orchids.

Mrs. Norris testified before the House Judiciary subcommittee on crime this summer. The hearing’s topic: the rapid and dangerous expansion of federal criminal law, an expansion that is often unprincipled and highly partisan.


The Heritage Foundation recently wrote about overly broad criminal prosecution under the Lacey Act. Heritage cites an example where a small business owner spent six and a half years in confinement because he used plastic instead of cardboard to wrap fish, which federal prosecutors determined violated Honduran law. (The Honduran government said otherwise).


The most recent case that brought problems with the Lacey Act into the fore was the August 24 raid on Gibson Guitar’s Nashville and Memphis factories by armed federal agents. The Department of Justice seized 10,000 fingerboards, 700 guitar necks and 80 guitars as part of an investigation into whether the company had illegally imported ebony from India. All told, this raid has cost Gibson over $1 million and charges have yet to be brought against the company.

(Courtesy of Property Rights Alliance)

Justice Reinvestment Working for North Carolina Prison System

Justice reinvestment is working in North Carolina. There are fewer prisoners than there used to be. Prison population has dropped dramatically from a high of nearly 42,000 inmates in 2009 to a little more than 37,000 at the start of this year.


Read more here: http://www.newsobserver.com/2013/07/09/3015334/prison-closures-are-price-of-nc.html#storylink=cpy
The prison population is declining because the state’s growth rate is slowing down – especially for males between 16 to 24, who are the most likely people to get arrested – and because crime trends are going down across the country.

But the main reason for the shrinking prisons is the state’s massive revision of its sentencing laws, which is meant to keep as many offenders out of prison as possible through closer supervision and treatment. One part of the Justice Reinvestment Act, approved by the legislature last session, shifts those who have committed misdemeanors from prisons into county jails. Another provision increases the amount of a sentence to be served in jail instead of prison.

The impact has already begun to be measured. State prison admissions have dropped 17 percent from fiscal year 2010-11 to 2011-12 – a decrease in nearly 5,000 admissions. More than two-thirds of that decline is attributed to the Justice Reinvestment Act, which took effect in January 2012, according to the state Department of Public Safety.

To read more: http://www.newsobserver.com/2013/07/09/3015334/prison-closures-are-price-of-nc.html

Read more here: http://www.newsobserver.com/2013/07/09/3015334/prison-closures-are-price-of-nc.html#storylink=cpy

Wednesday, July 10, 2013

California prison problem more than overcrowding


It has been a bad week for California Prisons.  As many as 30,000 prisoners have started a hunger strike, an investigation revealed that the prison system has illegally sterilized female inmates and a panel of judges that has threatened contempt of court against Governor Jerry Brown, demands the release of 10,000 prisoners.

Officials said 30,000 California inmates refused meals Monday at the start of a prison strike involving two-thirds of the state's 33 lockups, as well as four out-of-state facilities, reported the Los Angeles Times.

Participants refused breakfast and lunch, said a corrections spokeswoman. In addition, 2,300 prisoners skipped work or classes, some saying they were sick.

The protest was organized by a small group of inmates held in solitary confinement at Pelican Bay State Prison near the Oregon border. Their complaints focus on policies that put inmates in isolation indefinitely, some for decades, if they are suspected of having ties to prison gangs.

If things weren't bad enough in California, doctors under contract with the California Department of Corrections and Rehabilitation sterilized nearly 150 female inmates from 2006 to 2010 without required state approvals, The Center for Investigative Reporting has found.

At least 148 women received tubal ligations in violation of prison rules during those five years – and there are perhaps 100 more dating back to the late 1990s, according to state documents and interviews.

From 1997 to 2010, the state paid doctors $147,460 to perform the procedure, according to a database of contracted medical services for state prisoners.

The women were signed up for the surgery while they were pregnant and housed at either the California Institution for Women in Corona or Valley State Prison for Women in Chowchilla, which is now a men’s prison.

Former inmates and prisoner advocates maintain that prison medical staff coerced the women, targeting those deemed likely to return to prison in the future.

Tuesday, July 9, 2013

Gov. Perry will leave behind a legacy of death

Texas Governor Rick Perry has announced that he will not run for another term as governor. Perry will probably be best remembered for his fervent support of the death penalty.

Texas has held 261executions under Perry's watch, far and away the most executions carried out by any governor in modern history. In fact, Rick Perry has signed off on more executions in his nearly 13 years as governor than any other state has executed total since the death penalty was reinstated in 1976. And Texas, which recently reached a milestone of 500 executions, has killed more people than the next six states combined.

Texas has been a killing machine since Perry took office. While Perry can only grant clemency from death sentences if it is recommended by the Texas Board of Pardons and Paroles, he has rarely used that power. According to the Texas Tribune, Perry has commuted only 31 death sentences, and 28 of those resulted from a 2005 Supreme Court case outlawing the execution of juveniles.

To read more: http://newsbusters.org/blogs/brad-wilmouth/2013/06/28/msnbcs-hayes-frets-over-500th-execution-texas-sees-draconian-abortion#ixzz2YY3m62Bk

Monday, July 8, 2013

Connecticut pays $3.5 million for Death Row lawsuit

The cost to taxpayers of a long-running racial-bias lawsuit by death-row inmates has topped $3.5 million, with more possible before an expected judge's ruling within a few months — and then a possible appeal by whoever loses, according to the Hartford Courant.

News coverage of the habeas corpus lawsuit in state Superior Court has centered on the trial late last year of claims by five convicted killers that Connecticut's death penalty is biased racially, ethnically and geographically.

The Courant made a Freedom of Information Act request for records of how much the litigation has cost taxpayers since the lawsuit was filed eight years ago. Those records, obtained from the Office of the Chief Public Defender and the State comptroller, show:
 
— Payments by the Chief Public Defender's office to private law firms, appointed to represent the inmates, have totaled nearly $1.8 million. More than $657,000 of that was during the current fiscal year — in which the trial was held for more than 10 days in a makeshift courtroom inside Northern Correctional Institution in Somers, which houses the state's 11 death-row inmates.

To read more: http://www.courant.com/news/politics/hc-lender-column-inmates-costs-0707-20130705,0,856407.column

Sunday, July 7, 2013

The Vindicator: Expand Medicaid to prisoners

Matthew T. Mangino
The Youngstown Vindicator
July 7, 2013

An inmate in county jail costs local taxpayers about $65 a day or about $24,000 a year. That price tag doesn’t include the additional costs associated with getting into more legal trouble behind bars — that happens more often than you might think — drug smuggling, assault, even scams and fraud.

The cost also does not include catastrophic medical expenses. An inmate who is injured, or becomes ill, and needs hospitalization usually receives that treatment at local taxpayers’ expense.

A significant majority of counties across the country bear those medical costs out of their general budget even though a 1997 federal ruling permitted state prisons and local jails to pass off a portion of those costs to the federal government.

$15 MILLION IN SAVINGS

The Urban Institute did a study earlier this year on expanding Medicaid in Ohio and found that the state could save $15 million in inmate medical costs in 2014 alone through Medicaid expansion. However, the Republican-led Legislature cut Gov. John Kasich’s proposal to extend Medicaid eligibility from his budget. Kasich used a line-up veto to restore it, but he will have to negotiate with the General Assembly to win the necessary funding.

The Centers for Medicare and Medicaid Services issued a guidance letter 16 years ago directing that Medicaid benefits are available to eligible individuals who are incarcerated and have been admitted as an inpatient in a hospital that is not part of the state or local correctional system.

Medicaid can be billed to cover the costs of medical services for an inmate transported out of a correctional facility for inpatient services. The federal government pays 50 to 84 percent of medical costs, according to Stateline Magazine’s Christine Vestal.

States and local government bodies have a constitutional obligation to provide adequate health care to prisoners, and they must find a way to pay for it. These rights have been confirmed nationwide by countless lawsuits seeking not only adequate medical coverage as a constitutional right, but also access to such things as exercise areas, libraries and even cable TV.

There are about three quarters of a million inmates in local jails, another 1.6 million in state prisons, according to the U.S. Justice Department. The United States has the highest incarceration rate in the world, with the local jail population growing at a faster pace than the prison population. Most are in jail awaiting trial and incarcerated for relatively short periods of time.

Beyond treatment for inmates who are transferred from a correctional facility to a hospital for inpatient care, the Patient Protection and Affordable Care Act, better known as Obamacare, allows incarcerated individuals in pretrial detention to be classified as qualified to enroll in and receive services from health plans participating in state health insurance exchanges if they qualify for coverage. The act also makes changes to the enrollment criteria for Medicaid.

RECOUPING COSTS

Obamacare provides yet another opportunity for savvy state and local governments to pursue recoupment of prisoner medical costs.

Only 12 states — Arkansas, California, Colorado, Delaware, Louisiana, Michigan, Mississippi, Nebraska, North Carolina, Oklahoma, Pennsylvania, Washington — and some local governments are pursuing Medicaid to pay for inpatient medical care for prisoners.

In Pennsylvania, Act 22 went into effect July 1, 2011. The law caps inpatient hospital care for most county and state inmates at Medicaid rates and outpatient care at Medicare rates.

In Wisconsin, the state stands to save almost $17 million in hospital costs for inmates, as a result of changes in enrollment criteria for Medicaid under Obamacare. Although taking full advantage of the cost savings for prisoners, Gov. Scott Walker has been unwilling to expand Medicaid for law-abiding adults who would also qualify under new income guidelines.

Ohio is doing neither. Although policy makers have made an ill-fated attempt to save money by selling a state prison to a private company, Ohio has failed to seek federal reimbursement for prisoner medical treatment and the Legislature continues to resist the governor’s effort to access potential cost savings created by Obamacare.

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

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Guest column: Right to remain silent? Not under this court

Matthew T. Mangino
Delaware County Daily Times
July 2, 2013

The U.S. Supreme Court recently ruled that the right to remain silent — that iconic right of television and movie fame — is really not as straightforward as one might think.

In fact, the U.S. Supreme Court made it clear that a suspect cannot invoke the right to remain silent by … well ... remaining silent.

The case, Salinas v. Texas, arose from the 1992 murder of two men in Houston. The police found shotguns shells discarded at the crime scene.

The police questioned Genovevo Salinas, who was said to have attended a party at the victims’ apartment. When Salinas met with police he was not under arrest. He voluntarily submitted to questioning and was free to leave the police station at any time.

He answered questions for almost an hour but when asked by police if the shotgun shells found at the murder scene would match a shotgun found in Salinas’ home, he stopped talking.

The police made a record of Salinas’ conduct once he stopped talking. According to the Supreme Court opinion authored by Justice Samuel A. Alito, Jr., Salinas “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.”

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court agreed, finding that silence is not enough to invoke the right to remain silent. In an ironic twist a suspect must break his silence to benefit by his silence.

In 1965, the Supreme Court said it was not necessary to actually invoke the right to remain silent at trial. A criminal defendant need not take the stand and assert her Fifth Amendment right. That exception reflects the fact that a criminal defendant has an “absolute right not to testify.”

In the famous case of Miranda v. Arizona the Supreme Court held that a suspect who is in police custody, is under arrest, or at a minimum not free to leave, is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation and need not invoke the Fifth Amendment.

When Salinas was argued, his attorney suggested that it would be unfair to require a suspect untrained in the law to do anything more than remain silent in order to invoke his “right to remain silent.”

The Supreme Court has made the right to remain silent more complicated, and it will require those accused of a crime to be more informed about their rights and, more importantly, the decision will require an accused, under enormous pressure, to articulate the desire to invoke those rights.

The court admonished, “The Fifth Amendment guarantees that no one may be ‘compelled in any criminal case to be a witness against himself;’ it does not establish an unqualified ‘right to remain silent.’”

The old cliché — ignorance of the law is no excuse — has never been more apropos. The court made it clear, “[I]t is settled that forfeiture of the privilege against self-incrimination need not be knowing.” In other words, an informed or intelligent waiver of the right to silence is not required. Ignorance is quite enough to open the door to having a suspect’s silence used against him.

Anyone, guilty or innocent, invited to the police station to talk about a murder is going to be nervous. The Supreme Court has now entrusted to the police the responsibility to make an unbiased interpretation of a suspect’s physical manifestations.

A failure to make eye contact, an awkward shift in one’s seat, a bead of sweat can result in a suspect, who has admitted nothing, being convicted.

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

GateHouse: Jailers ignore funding for inmate medical care

Matthew T. Mangino
GateHouse News Service
July 5, 2013

An inmate in county jail costs local taxpayers about $65 a day, or about $24,000 a year. That price tag doesn’t include the additional costs associated with getting into more legal trouble behind bars — that happens more often than you might think — drug smuggling, assault, even scams and fraud.

The cost also does not include catastrophic medical expenses. An inmate who is injured, or becomes ill, and needs hospitalization usually receives that treatment at local taxpayers’ expense.

A significant majority of counties across the country bear those medical costs out of their general budget even though a 1997 federal ruling permitted state prisons and local jails to pass off a portion of those costs to the federal government.

The Centers for Medicare and Medicaid Services issued a guidance letter in 1997 directing that Medicaid benefits are available to eligible individuals who are incarcerated and have been admitted as an inpatient in a hospital that is not part of the state or local correctional system.

Medicaid can be billed to cover the costs of medical services for an inmate transported out of a correctional facility for inpatient services. The federal government pays 50 to 84 percent of medical costs, according to Stateline Magazine’s Christine Vestal.

State and local government bodies have a constitutional obligation to provide adequate health care to prisoners, and they must find a way to pay for it. These rights have been confirmed nationwide by countless law suits seeking not only adequate medical coverage as a constitutional right, but also access to such things as exercise areas, libraries and even cable TV.

There are about three quarters of a million inmates in local jails, another 1.6 million in state prisons, according to the U.S. Justice Department. The United States has the highest incarceration rate in the world, with the local jail population growing at a faster pace than the prison population. Most are in jail awaiting trial and incarcerated for relatively short periods of time.

Beyond treatment for inmates who are transferred from a correctional facility to a hospital for inpatient care, the Patient Protection and Affordable Care Act, better known as Obamacare, allows incarcerated individuals in pre-trial detention to be classified as qualified to enroll in and receive services from health plans participating in state health insurance exchanges, if they qualify for coverage. The act also makes changes to the enrollment criteria for Medicaid.

Obamacare provides yet another opportunity for savvy state and local governments to pursue recoupment of prisoner medical costs.

Only 12 states — Arkansas, California, Colorado, Delaware, Louisiana, Michigan, Mississippi, Nebraska, North Carolina, Oklahoma, Pennsylvania and Washington — and some local governments are pursuing Medicaid to pay for inpatient medical care for prisoners.

In Pennsylvania, Act 22 went into effect on July 1, 2011. The law caps inpatient hospital care for most county and state inmates at Medicaid rates and outpatient care at Medicare rates.

Wisconsin will save almost $17 million in hospital costs for inmates, as a result of changes in enrollment criteria for Medicaid under Obama’s health care plan. Although taking full advantage of the cost savings for prisoners, Gov. Scott Walker has been unwilling to expand Medicaid for law-abiding adults who would also qualify under new income guidelines.

The New York Department of Corrections estimates it could save up to $20 million annually through Medicaid reimbursements, according to a 2012 report by the state comptroller’s office.

In Ohio, Republicans dropped from the state budget Gov. John Kasich’s proposal to extend Medicaid eligibility. The Urban Institute did a study earlier this year on expanding Medicaid in Ohio and found that the state could save $15 million in inmate medical costs in 2014 alone.

The reluctance to move forward is as astounding as it is foolish.

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.

Saturday, July 6, 2013

Crime is making a comeback in politics


Crime is slowly re-emerging as a campaign issue, reported the Associated Press.

From the 1960s to the early 1990s, Republicans hammered Democrats on crime for focusing too much on rehabilitation and not enough on punishment and imprisonment. That changed as crime rates plunged in the 1990s and Arkansas Gov. Bill Clinton inoculated Democrats by being an avid death penalty supporter, interrupting his 1992 presidential campaign to preside over an execution.

Now increasing numbers of states are turning away from mandatory prison sentences and embracing rehabilitation programs to thin out inmate populations and save taxpayer money. The shift has been particularly pronounced in conservative, Republican-dominated states like Georgia, Texas and South Carolina.

In California, which has conducted the most ambitious criminal justice overhaul in the nation, Republicans are targeting Gov. Jerry Brown and legislative Democrats over the state’s policy that sends lower-level offenders to local jails rather than state prisons.

The law went into full effect in late 2011, but already there have been several highly publicized cases of convicts released from prison committing crimes like rape and murder. The most prominent Republican to emerge as a possible challenger to Brown, former Lt. Gov. Abel Maldonado, in May launched a ballot campaign to reverse the prison overhaul.

Frank Zimring, a University of California-Berkeley law professor who has written widely on crime and politics, noted that crime rates appear to have leveled out after a two-decade decline. He called the recent GOP efforts ‘‘the test run as to whether there could be a resurgence in hard-right, punitive’’ crime politics.

In California, the Republican Party has no statewide office-holders and less than one-third of the seats in the state legislature. In those circumstances, Zimring said, ‘‘you consult your greatest hits playbook from previous eras.’’

A political ad in Colorado seems like an artifact from an earlier political era — a grainy mug shot of a convicted murderer, flashing police lights, a recording of a panicked 911 call and then a question about Colorado’s Democratic governor, up for re-election next year: ‘‘How can we protect our families when Gov. Hickenlooper allows a cold-blooded killer to escape justice?’’

The online spot from the Colorado Republican Party appeared only hours after Gov. John Hickenlooper in May indefinitely suspended the death sentence of Nathan Dunlap, who killed four people in 1993 and was scheduled to be executed in August. The governor cited problems with the concept and application of the death penalty.

Crime focused ads doomed Gov. Mike Dukakis in the 1988 presidential race and dogged Lt. Governor Mark Singel in the Pennsylvania governor's race in 1994.  Dukakis lost to  George H.W. Bush on the Willie Horton ad and Singel lost to Tom Ridge on the Reginald McFadden ad.

Barry Goldwater in 1964 and then Richard Nixon 1968 introduced the fear mongering approach to politics while focusing on crime.
 

Friday, July 5, 2013

The Cautionary Instruction: Athletes gone wild

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 5, 2013

Former New England Patriot, and NFL Pro-Bowler, Aaron Hernandez is in jail, without bond, charged with murder. Apparently, he is now under investigation for a double homicide in 2012.  Hernandez like any other person accused of a crime is presumed innocent until proven guilty.

However, any presumption that the NFL doesn’t have a “thug” problem has long ago disappeared. Guns and ammunition seem to be as much a part of some NFL players’ belongings as a helmet and chin strap.

Indianapolis Colts safety Joe Lefeged was arrested this week on a gun charge. Lefeged spent a couple days in jail after refusing to pull over and being chased by police. Once the chase ended a handgun was found in the Chevy Camaro Lefeged was driving.

You’d think some guys would learn a lesson from former and current Steeler Plaxico Burress whose career derailed after he accidentally shot himself in a New York nightclub, leading to a gun charge that resulted in a 20-month prison sentence.

In Philadelphia news reports are revealing that the learning curve for some NFL players can be steep.
A pit bull and seven puppies belonging to Philadelphia Eagles running back Bryce Brown were among the animals seized in a suspected dog fighting operation in Wisconsin.  That is the same Eagle team where Michael Vick plays quarterback. Vick spent time in prison and had a great career tarnished by promoting dog fighting.

Oh, there is some good news for the NFL this week. Former Jacksonville Jaguar receiver Jimmy Smith was released from prison on house arrest. Smith was originally scheduled to be released in November 2018 after he was sentenced to four years on a charge of cocaine possession and, of course, two years on gun possession charge.

Let’s not just pick on NFL football players. Texas A & M’s star cornerback Deshazor Everett recently got arrested, along with a teammate. Two people reported being attacked by a group that included Everett. Police say the victims had visible injuries from the attack.

Don’t forget college hockey. Notre Dame’s Jared Beers was arrested on a felony assault charge. According to the police report, Beers punched a female bar manager in the face, and then while she was on the ground, he stepped on her throat and pulled her hair.

Oh yeah, it’s not just football players toting guns and college athletes beating on women. Boston Celtics basketball player Terrence Williams did both. He got arrested in May for domestic violence and menacing with a gun. He threatened his son’s mother with a gun prior to picking up the child.

Then there is former major league baseball player Milton Bradley. He was recently sentenced to three years in prison for abusing his wife five times between 2011 and 2012. Bradley was arrested in 2011 for swinging a bat at his wife, just after he was released by the Seattle Mariners.

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