Thursday, October 31, 2013

Support for the death penalty falls to 60 percent

Sixty percent of Americans favor capital punishment for convicted murderers, the lowest percentage since 1972, according to a Gallup poll released this week reported Reuters.

Gallop randomly sampled 1,028 people by telephone in all 50 U.S. states and the District of Columbia from October 3 to 6. The margin of error was plus or minus 4 percentage points, Gallup said.

At its peak in the mid-1990s, capital punishment support was at 80 percent, the polling group said. However, even with declining support nearly two out of three people support the execution of some convicted killers.

Since 2006, six states have repealed death penalty laws outright, including Maryland this year, Gallup said.

Eighty-one percent of Republicans, 47 percent of Democrats and 60 percent of independents support the death penalty, according to the poll.

The largest decrease was found among Democrats, 75 percent of whom supported the death penalty in 1994.

Gallup has been measuring Americans' attitudes about capital punishment since 1936. Fifty-seven percent were in favor of the death penalty in November 1972.

Support for the death penalty increased from 1976, when the U.S. Supreme Court reinstated capital punishment, and reached a peak in 1994, when Americans named crime as the biggest problem plaguing the nation, the report said.

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Wednesday, October 30, 2013

PA Supreme Court Miller v. Alabama not retroactive

The Pennsylvania Supreme Court decided Commonwealth v. Ian Cunningham, a 4-3 decision finding Miller v. Alabama is not retroactive.  The deciding fourth vote was by Justice Correale F. Stevens who was not on the Court when Cunningham was argued last September. 
In Miller v. Alabama the U.S. Supreme Court struck down mandatory life in prison for juveniles convicted of murder. I wrote about the delay and presumed split in Cunningham for the Pennsylvania Law Weekly last month.
According to Cunningham, Miller only applies to cases that were pending on appeal at the time Miller was decided, in June, 2012.  The majority opinion written by Justice Thomas G. Saylor found, "Here, applying settled principles of appellate review, nothing in Appellant’s arguments persuades us that Miller’s proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller’s announcement."
Justice Max Baer wrote a dissenting opinion.

Attorneys for Cunningham intend to seek review by the United States Supreme Court.
There have been a number of conflicting decision among state and federal circuits with regard to Miller v. Alabama. Last month, the U.S. Third Circuit Court of Appeals ruled in In re Michael J. Pendleton, No. 12-3617; In re Franklin X. Baines, No. 12-3996; and In re Corey Grant, 13-1455, that three men, two from Pennsylvania and one from New Jersey, sentenced as juveniles to life in prison, will have a chance to argue that Miller is retroactive.

A review of 'stand your ground' and the 'castle doctrine'

The National Conference of State Legislatures, provided a detailed summary of the state of self-defense laws across the country.  Here is a look at the 'stand your ground', the 'castle doctrine' and self-defense.

The common law principle of “castle doctrine” says that individuals have the right to use reasonable force, including deadly force, to protect themselves against an intruder in their home. This principle has been codified and expanded by state legislatures.

In the 1980s, a handful of state laws (nicknamed “make my day” laws) addressed immunity from prosecution in use of deadly force against another who unlawfully and forcibly enters a person’s residence. In 2005, Florida passed a law related to castle doctrine, expanding on that premise with “stand your ground” language related to self defense and duty to retreat.   Florida’s law states “a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

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

Pennsylvania's law, amended in 2011, distinguishes use of deadly force outside one’s home or vehicle.  It provides that in such locations one cannot use deadly force unless he has reasonable belief of imminent death or injury, and either he or she cannot retreat in safety or the attacker displays or uses a lethal weapon.

Self defense laws in at least 22 states (Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maryland, Michigan, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee West Virginia and Wisconsin) provide civil immunity under certain self defense circumstances.

Statutes in at least six states (Hawaii, Missouri, Nebraska, New Jersey, North Dakota and Tennessee) assert that civil remedies are unaffected by criminal provisions of self defense law.

With regard to recent legislative proposals, self defense related bills failed in three states in 2013 (Arkansas, Florida and Mississippi, each now adjourned).  A bill in North Carolina (H 976) that would amend aspects of law regarding use of force against an intruder was in committee upon adjournment.  Several measures in New Jersey carried over from 2012 with no 2013 action on those to date.  There were about a dozen bills before state legislatures in 2012, several of which would have amended circumstances for allowed use of force by citizens.  None of those proposals advanced.

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Tuesday, October 29, 2013

Arizona executes man responsible for six murders

The 32nd Execution of 2013

On October 23, 2013, Arizona executed a man convicted of killing six people in Tucson during two armed robberies 17 years ago.

Robert Glen Jones Jr. was given a lethal dose of pentobarbital at 10:35 a.m. MST and was pronounced dead 17 minutes later in the execution chamber at the state prison in Florence.

It took execution technicians about 30 minutes to find usable veins in Jones, a former drug user. At one point, Jones jokingly said: “Shooting dope. Free up one of my hands and I’ll find it for you.”

When the warden asked whether Jones had any last words, he said: “Love and respect my friends and family and hope my friends are never here.”

He never turned his head to look at the witnesses on the other side of a window. Because of limited space in the execution building’s witness room, only 18 of the 22 invited victim relatives were inside.

Jones, 43, and an accomplice were convicted of killing two people at the Moon Smoke Shop on May 30, 1996, and four others at the Firefighters Union Hall social club 14 days later.

The two also were charged with stealing at least $1,300 from cash registers.

They were arrested months later after co-defendant Scott Nordstrom’s brother, who was the getaway driver, told authorities about the crimes.

David Nordstrom cut a deal with prosecutors by testifying against his brother and Jones. He eventually pleaded guilty to armed robbery and served less than four years in prison.

Like Jones, Scott Nordstrom was convicted on six counts of first-degree murder and sentenced to death. He remains on death row.

Jones was executed about two hours after the U.S. Supreme Court denied motions for a stay of execution and a rehearing of his case.

Federal public defenders had argued that Jones had ineffective counsel at his 1998 trial and that a now-deceased Pima County prosecutor withheld evidence. They still questioned David Nordstrom’s testimony.

Jones didn’t attend his clemency hearing last week or write a letter to the board. He declined interview requests.

It was Arizona’s 36th execution since 1992 and the second this month. On Oct. 9, the state executed 71-year-old Edward Schad, who was convicted of killing a Bisbee man in 1978.

There are 120 people remaining on Arizona’s death row, including two women.

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Monday, October 28, 2013

In Philly 'ex-offenders' no more, 'returning citizens'

The hundreds of thousands of Philadelphians who have served time in prison will no longer be referred to as "ex-offenders" in official city language, reported the Philadelphia Inquirer. Instead, an ordinance will be introduced to call them "returning citizens."

In a statement, Mayor Nutter said that the new term emphasizes reintegration, while " 'ex-offender' carries with it a stigma which may increase the challenges these citizens face."

While the ordinance, to be introduced by Councilman W. Wilson Goode Jr., awaits approval, the mayor has already issued an executive order making it city policy to use "returning citizen" on all written material from the city.

The order also renamed the Office of Re-integration Services for Ex-Offenders (RISE) to the Office of Re-integration Services. The acronym, however, will remain the same.

RISE executive director Bill Hart said he estimates the city is home to more than 200,000 "returning citizens," but that an exact number is difficult to pinpoint due to a high recidivism rate.

He hopes the new term will have a "cognitive effect" on those returning from prison.

A more positive label, he said, demonstrates that "you can be successful and make that reintegration in the world."

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Sunday, October 27, 2013

Violent Crime is On the Rise

Violent crime in the United States rose for the second year in a row, indicating that the nation's two-decade decline in crime has ended, reported the USA Today.

The 2012 National Crime Victimization Survey by the Bureau of Justice Statistics found that 26 of every 1,000 people experienced violent crime, a 15% increase in how many people reported being victims of rape, robbery or assault. Property crime — burglary, theft and car theft — rose 12%.

"We've plateaued. At this point, I don't think we're going to see any more decreases in crime," criminologist James Alan Fox of Northeastern University told the USA Today. "The challenge will be making sure crime rates don't go back up."

The report follows the FBI's 2012 Uniform Crime Report, released in September, which documented more than 1.2 million violent crimes nationwide — about 1% more than in 2011. For 2011, data from the victims survey also showed an increase in violent crime: up 17% from 2010, the sharpest rise in two decades.

The victimization survey, which collects data from 162,940 people over age 12, found that 26 of every 1,000 people were victims of crime in 2012, up from 23 in 2011. Most of the increase is made up of simple assaults and crimes that were not reported to police. That information is not included in the Uniform Crime Report, which is considered the definitive measure of crime in the United States.

Taken together, the figures indicate a slight shift in direction, said James Lynch, chairman of the University of Maryland's criminology and criminal justice department.

"It's not exactly a crime wave. It's more like a flattening out," Lynch told the USA Today. "I don't see this as terribly alarming, but more as something to pay attention to."

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Saturday, October 26, 2013

GateHouse: The legacy of a landmark decision

Matthew T. Mangino
GateHouse News Service
October 25, 2013

More than 50 years ago, Cleveland police officers went to the home of Dollree Mapp looking for a suspect in a criminal investigation.  Mapp refused to let the police in without a warrant.

The police left, and when they returned, they were armed with a “fake” warrant. Chicanery took the place of real police work. Instead of going to a judge to get a warrant, the police drew up their own. After entering to Mapp’s home, police conducted a search and confiscated obscene material resulting in Mapp’s arrest.

So was born the 1961 landmark U.S. Supreme Court decision of Mapp v. Ohio. The court provided a remedy — the exclusion of illegally obtained evidence from admission in a criminal prosecution — for unconstitutional police action.

Forty-seven years before Mapp, the U.S. Supreme Court ruled that evidence collected in federal prosecutions that violated the Fourth Amendment ban against illegal search and seizures would be excluded from trial. The exclusionary rule, as it became known, was only available to defendants in federal court. Mapp v. Ohio changed that and altered the nation’s jurisprudential landscape. As a result, state prosecutors were also banned from using evidence gained by illegal or improper means.

The rationale behind the exclusionary rule was to deter police misconduct. If police intentionally circumvented their obligation to get a search warrant or if the police were just inept, the penalty would be significant — the inability to use the evidence illegally obtained.

Many Supreme Court observers suggested that the Mapp decision would be detrimental to law enforcement. The courts would be inundated with challenges and the guilty would go free in droves. The exclusionary rule has been the target of a 50-year assault by conservatives that contend the rule is a boondoggle for criminals.

Over the last half-century, the Supreme Court has whittled away at the exclusionary rule. The court has ruled that the exclusionary rule does not apply if the police obtained no advantage by their unlawful conduct, if a warrant was improvidently issued by a judge, or if a valid warrant was illegally served.

In 2009, the assault on the exclusionary rule continued. The Supreme Court found that evidence confiscated as the result of an arrest that was the product of an expired warrant was not subject to exclusion. The court found that negligence by one police department in failing to remove a warrant did not contaminate evidence obtained by a different police department that was unaware of the invalid arrest warrant.

In 2011, the 50th anniversary of the Mapp decision, the U.S. Supreme Court further narrowed the exclusionary rule. Police in Alabama arrested Willie Davis. After he was handcuffed and placed in the backseat of a police cruiser Davis’ car was searched. The police found a gun. The police were in conformity with the law as it existed at the time the warrantless search of Davis’ car was conducted.

Subsequently, the law changed and Davis sought to have the evidence excluded. The Supreme Court refused to exclude the evidence. Justice Samuel Alito concluded that suppression of evidence as the result of a change in the law, a change that came after a lawful search, “would do nothing to deter police misconduct.”

What the exclusionary rule actually produced was improved police work. Ironically, several years ago Justice Antonin Scalia cited “increasing professionalism of police” as a reason for the exclusionary rule’s obsolescence.

The law enforcement training that grew out of the Mapp decision has enhanced the quality of police investigations and protected the rights of individual citizens. The exclusionary rule’s contribution to the criminal justice system cannot be overstated.

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

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Friday, October 25, 2013

The Cautionary Instruction: Supreme Court to revisit the death penalty and mental disability

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 25, 2013

The U.S. Supreme Court has agreed to define mental disability for the purpose of imposing the death penalty.

In 2002, Atkins v. Virginia established that subjecting a mentally disabled individual to capital punishment would violate the Constitution. But the court left it to the states to define the parameters of who qualifies as mentally disabled for purposes of capital punishment.

Ultimately the question is whether a defendant’s mental deficiency is so significant that he is unable to appreciate the wrongfulness of his conduct. If so, his execution would violate the Eighth Amendment ban on cruel and unusual punishment.

The new case, Hall v. Florida, No. 12-10882, arose from the 1978 murder of Karol Hurst, who was 21 and seven months pregnant when Freddie L. Hall and an accomplice forced her into her car in a supermarket parking lot. She was found in a wooded area, where she had been beaten, sexually assaulted and shot. Hall was convicted of murder and sentenced to death.

"It is certainly of concern that in some states Hall would be mentally retarded by those states' definitions, while in others, like Florida, the bright-line cutoff requires a contrary finding," wrote Florida Supreme Court Justice Barbara Pariente in a concurring opinion is Halls’ state appeal. "At some point in the future, the United States Supreme Court may determine that a bright-line cutoff is unconstitutional because of the risk of executing an individual who is in fact mentally retarded."

In a brief asking the high court to hear the case, Hall's attorney, Eric Pinkard, noted that lower courts originally placed Hall’s IQ at 60. He argued that the state cannot set a "bright line" for measuring something even the IQ tests' inventors say is a moving target.

"Unfortunately, the human race has not yet developed a test for mental retardation that is like a blood pressure machine, hooked up to a defendant's arm with a gauge that reads R for retarded or N for not retarded," the brief states. "The state of Florida cannot invent out of whole cloth a bright line cutoff for determining mental retardation."

Cornell University law professor John Blume, an expert on capital punishment, told the Los Angeles Times he was pleased the court would clarify the law. "This appears to be an egregious case, someone who was mentally retarded for his entire life," he said. "Florida is among a handful of states that rely on a single cut-off score."

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Former Attorney General Disbarred

Former Kansas Attorney General Phillip Kline lost his law license indefinitely after the Kansas Supreme Court found that he violated lawyer ethics rules, reported  The charges stem from Kline's well publicized attack on abortion providers.

In a unanimous decision, the court found that Kline, attorney general from 2003 to 2007, demonstrated “overzealous advocacy” and failed to operate “within the bounds of the law.”

The court, in a 154-page decision, found that he gave false court testimony about information obtained during a criminal investigation of abortion providers.

The seven-justice panel also found that he ordered staffers to include court-sealed documents in a public brief and told employees to file court papers containing misleading information. The justices found that Kline “violated his duties to the public, the legal system, and the legal profession.”

Kansas disciplinary administrator Stanton Hazlett had sought Kline’s permanent disbarment, a punishment the justices rejected, finding that his conduct did not demonstrate intent to violate the rules. Hazlett did not return a call seeking comment.

As a prosecutor, Kline filed dozens of charges against a Planned Parenthood clinic, accusing it of performing illegal abortions and falsifying records. The last of those charges were dismissed last year. He also pursued criminal charges against a local doctor, whose charges were eventually thrown out.

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Thursday, October 24, 2013

Will Nevada charge parents in school shooting?

This week, a 12-year-old boy wounded two students and killed a teacher before killing himself in Sparks, NV. The Christian Science Monitor asks if the child's parents will be prosecuted.

Nevada is one of 27 states that has a Child Access Prevention (CAP) law. But some laws are more stringent than others.

Nevada, like 12 other states, prohibits only intentional, knowing, or reckless provision of firearms to minors. Several other states impose liability if the child actually uses the firearm. Only three – Massachusetts, Minnesota, and California (plus the District of Columbia) – impose liability when a child “may” or “is likely to” gain access to a gun, even if they never do.

Of these, Massachusetts is the only state that has a true “safe storage” law on the books, says Sam Hoover, a staff attorney at the Law Center to Prevent Gun Violence. The Massachusetts law requires that guns be locked at all times in the home, except when used in self-defense. In addition, all guns in Massachusetts must be kept with a locking device in place.

Yet even in those states that don't have CAP laws, some prosecutors have found ways to go after gun owners who fail to keep weapons out of children's hands.

“It’s a fairly straightforward civil liability case that a parent can be held liable for failing to adequately secure a gun away from a young person, and there have been a number of civil suits over the years, and a number of reported cases around the country of holding gun owners to the highest degree of care in securing their weapons,” says Jonathan Lowy, director of the Legal Action Project at the Brady Center to Prevent Gun Violence.

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Wednesday, October 23, 2013

SCOTUS to review mental disability under Atkins v. Virginia

The U.S. Supreme Court has agreed to determine what constitutes mental disibility under Atkins v. Virginia which abolished the death penalty for the mentally retarded in 2002.

The new case, Hall v. Florida, No. 12-10882, arose from the 1978 murder of Karol Hurst, who was 21 and seven months pregnant when Freddie L. Hall and an accomplice forced her into her car in a supermarket parking lot. She was found in a wooded area, where she had been beaten, sexually assaulted and shot, reported Adam Liptak of the New York Times.
Hall was convicted of murdering Hurst and sentenced to death.
The Atkins decision gave states substantial latitude in how to carry it out and gave only general guidance. It said a finding of mental retardation requires proof of three things: “subaverage intellectual functioning,” meaning low IQ scores; a lack of fundamental social and practical skills; and the presence of both conditions before age 18. The court said IQ scores under “approximately 70” typically indicate retardation.
A Florida law enacted not long before the Atkins decision created what Hall’s lawyers called an “inflexible bright-line cutoff” requiring proof of an IQ of 70 or below. Last year, the Florida Supreme Court ruled that Mr. Hall was eligible to be executed because his IQ had been measured at various times as 71, 73 and 80.
In a concurrence, Justice Barbara J. Pariente noted that “Florida, while not unique in its use of a bright-line cutoff score of 70, is not in the majority, although there is no clear national consensus.”
She added that the language of the Florida law and earlier decisions of her court required that Hall be put to death. “At some point in the future,” she added, “the United States Supreme Court may determine that a bright-line cutoff is unconstitutional because of the risk of executing an individual who is in fact mentally retarded.”
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Tuesday, October 22, 2013

Ohio Changes Lethal Injection Protocol for Upcoming Execution

Ohio prison officials, forced to revamp the lethal-injection process for the third time since resuming executions in 1999, have sorted out which drugs are best and where to get the drugs, reported the Columbus Dispatch.

Ohio’s policy was modified to allow two other drugs, Midazolam, a sedative, and Hydromorphone, a strong opiate, to be used intravenously in case pentobarbital is unavailable. The two drugs previously were to be used only for direct intramuscular injection.

Ohio has authorized obtaining the drugs from compounding pharmacies. Several other states, most recently Texas, have turned to compounding pharmacies as suppliers. Colorado, Pennsylvania and South Dakota have either obtained or investigated buying drugs from such pharmacies.

Ohio is in the same boat as several other states, including Missouri, which recently got the go-ahead from the courts to conduct two upcoming executions using propofol, an anesthetic best known as the drug that caused pop star Michael Jackson’s overdose death. Arkansas, Kentucky and Texas are also dealing with lethal-drug issues.

Ohio has adopted the new procedures in time for the Nov. 14 execution of Ronald Phillips, a Summit County man who confessed that he raped, beat and killed the 3-year-old daughter of his girlfriend.

The state’s supply of pentobarbital ran out at the end of September, after the Sept. 25 execution of Harry D. Mitts Jr. of Cuyahoga County. Some drug manufacturers are forbidding distributors to sell pentobarbital to states that use it for executions.

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Monday, October 21, 2013

Pennsylvania DAs Call for Early Education Funding

Pennsylvania District attorneys urged state and federal lawmakers to increase funding for early education programs for at-risk children in an effort to boost high school graduation rates and reduce the prison population, reported the Pottsville Mercury.

“We can continue with the status quo, which is leading too many people to failure in school, involvement in crime and incarceration at huge cost to Pennsylvania taxpayers,” said Delaware County District Attorney Jack Whelan, standing in front of the State Correctional Institution in Chester. “Or we can take a different course, leading more kids to success in school, increased high school graduation and savings to taxpayers for years to come.”

Whelan said that in Pennsylvania, $1.9 billion is spent each year to house approximately 50,000 prison inmates. In Delaware County alone, he said, it costs taxpayers about $45 million to fund Delaware County prison.

Whelan, Montgomery County District Attorney Risa Vetri Ferman, Philadelphia District Attorney R. Seth Williams, Chester County District Attorney Thomas Hogan and Cumberland County District Attorney David J. Freed, president of the Pennsylvania District Attorneys Association, spoke at the event sponsored by Fight Crime: Invest in Kids organization.

Williams called on lawmakers to support President Barack Obama’s proposal to spend $75 billion over the next 10 years on early childhood education, as opposed to spending $75 billion every year to house prisoners.

“This report demonstrates that every $100 invested in early childhood education will save us $700 in prison costs here in Pennsylvania,” Williams said. “This building behind me is a temple, a testimony of what the failure to invest in education will get you.”

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Sunday, October 20, 2013

Pennsylvania lawmakers consider mandatory retirement age of judges

Pennsylvania has not given up on raising the mandatory retirement age of judges.  The Senate took a step toward raising the age from 70 to 75, approving a House-passed bill to change the state Constitution, reported the Pittsburgh Tribune-Review.

The Senate approved the bill 44-6.

As a proposed constitutional amendment, the legislation needs approval from both chambers in the 2014-15 session. It then would be placed on the ballot for voters' consideration. A constitutional amendment doesn't need the governor's signature.

The earliest public vote would be November 2015, said Lynn Marks, executive director of Pennsylvanians for Modern Courts, a judicial watchdog group. The group has not taken a position on the question of mandatory retirement for judges.

People are living longer with “higher mental acuity,” Marks told the Trib. “It's a discussion under way in many professions.”

Federal judges face no age limit. In the Supreme Court, former Chief Justice Oliver Wendell Holmes served until 1932 when he was almost 91 years old. Associate Justice John Paul Stevens retired in 2010 at age 90.
Supporters of mandatory retirement ages say it makes room for “fresh blood” on the bench and that mental capabilities can deteriorate with age. Opponents argue that age is arbitrary. Each decision should be voluntary and there's no guarantee younger judges will perform better, according to an analysis Marks' group presented to the House Judiciary Committee in April.

In 1968, when the mandatory retirement age was placed in the constitution, life expectancy was 70, and today it is 78, said Sen. Lisa Boscola, D-Northampton County.

Pennsylvania is one of 33 states with a mandatory retirement age, typically varying from 70 to 75.

“We do ourselves a disservice by forcing retirement (of judges) so early,” John Burkoff, a law school professor at the University of Pittsburgh told the Trib. “I think it would make a lot more sense to let judges stay on the bench longer, at least until the point where they actually show signs that they can no longer do the job effectively.”

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Saturday, October 19, 2013

The Cautionary Instruction: Supreme Court considers practice of freezing assets in criminal cases

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
October 18, 2013

Criminal forfeitures are a key part of the federal government’s efforts to prosecute crime by limiting a defendant’s ability to fight the charges. The pretrial restraining orders enhance the government’s ability to get either a guilty plea or a guilty verdict.

This week, the U.S. Supreme Court took up the issue. The case arises from the common practice of the government freezing the assets of an indicted criminal defendant, who needs the assets to hire a lawyer.

In Kaley v. United States, attorneys argued that as a result of the Department of Justice freezing their clients’ assets, their clients have been in effect stripped of their ability to hire the defense attorney of their choice. They argued that such conduct violated their clients’ Sixth Amendment rights.

Defense attorneys argued that defendants should be allowed to keep their bank accounts and other possessions unless prosecutors can show, before trial, that the evidence supporting an indictment justifies the seizure of those assets.

Kerri and Brian Kaley were charged in 2007 with illegally profiting from the resale of older medical devices in South Florida. The equipment had been given to the Kerri, and other equipment sales representatives, by hospitals that no longer needed them because they purchased newer devices.

The Sixth Amendment does not require that an accused have legal counsel of their choice. Retired Superior Court Judge Eugene Hyman, of Santa Clara, California, said there is plenty of case law stating that one is entitled to a competent attorney and beyond that, "there's not a constitutional entitlement."

Attorneys also argued that it is more than just a Sixth Amendment issue. The Fifth Amendment Due Process Clause requires that defendants be given a pretrial hearing that would force prosecutors to establish the integrity of the indictment as a basis to seize the couple's assets.

There is reason for optimism among the appellants.

In Krimstock v. Kelly, Justice Sonia Sotomayor, then a lower court judge, wrote an opinion invalidating New York City's policy of seizing and holding vehicles owned by suspects accused of DUI. Sotomayor ruled that the policy violated the 14th Amendment, which mandates that citizens cannot be deprived of property without "due process of law."

On the other hand, Justice Samuel Alito appeared to have sympathy for the government's position. He noted that defense lawyers often use preliminary hearings -- like the one proposed to determine if there is evidence to support the seizure of assets -- to try gain an advantage by finding out details about the government's case ahead of trial.

"That's what this is all about," Alito said.

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Friday, October 18, 2013

GateHouse: The plight of children of incarcerated parents

Matthew T. Mangino
GateHouse News Service
October 18, 2013

This summer, “Sesame Street” added a new character to its lineup. The show introduced Alex, a child whose father is in prison. “Sesame Street” has taken on the issue of children of incarcerated parents as part of the online “Little Children, Big Challenges” series.

The pain portrayed by Alex is palpable. The millions of children in Alex’'s position are not only hurt by the absence of a parent, now those children face the prospect that their relationship with their incarcerated parent can be terminated, ended, wiped out legally and unequivocally. 

According to sociologist Bruce Western, about 2.7 million children across the country can relate to Alex’'s anxiety and uneasiness. Some estimate that 1 in 28 American children — 3.6 percent — have an incarcerated parent. Just 25 years ago, the number was 1 in 125.

The population of parents is following a trend similar to that of all incarcerated individuals. There are about 2.3 million people in jail or prison in this country. In 1980 there were about 502,000.

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

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

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

One area that officials have zeroed in on is the federal Adoption and Safe Families Act (ASFA). The seemingly well-intended ASFA provides specific, and very rigid, guidelines to reduce the number of children in foster care and increase the number of children placed in permanent homes. The law enacted in 1997 provides that courts are required to terminate parental rights after a child has been in foster care for 15 of the previous 22 months. This provision can have a devastating impact on children of incarcerated parents.

Pennsylvania, Oregon and Hawaii have organized task forces to study the plight of children of incarcerated parents and to recommend a course of action.

Some states have taken it a step further.

In 2007, the Virginia General Assembly required that a system be established to coordinate planning and service so children and their incarcerated parents can maintain their relationships.

In 2008, Tennessee passed a resolution urging the state Department of Corrections to examine the Children of Incarcerated Parents Bill of Rights and to incorporate appropriate principles to help the state address intergenerational crime.

This spring, Washington state Gov. Jay Inslee signed the Children of Incarcerated Parents law. The law provides courts with discretion to delay the termination of parental rights if the parent'’s incarceration is a significant factor in the child'’s continued stay in foster care.

More states need to take action. The consequences of even a relatively short sentence should not lead to the permanent severance of family bonds. According to the Children of Incarcerated Parents Bill of Rights, “When this happens, children are forced to forfeit the most fundamental right of all — the right to remain part of their families.”

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

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Thursday, October 17, 2013

Florida executes William Frederick Happ for 1986 murder

The 31st Execution of 2013

"For 27 years, the horrible murder of Angela Crowley has been clouded by circumstantial evidence and uncertainty," William Frederick Happ said moments before his Florida execution, reported The South Florida Sun-Sentinel. "For the sake of her family, loved ones and all concerned, it is to my agonizing shame that I must confess to this terrible crime."

In a jaw-dropping moment before his execution the condemned man confessed, apologized and asked for forgiveness.

Happ had spent 24 years on death row for abducting, beating, raping and strangling Crowley and dumping her body in a Citrus County canal.

Angie Crowley, a former honors student and high school cheerleader originally from Illinois, had moved to South Florida to work at a travel agency just five months before her May 1986 disappearance.

"We're here because Angie was taken from us in the most brutal way," her brother, Chris Crowley, said after the execution. "We will not experience any closure but will now be able to move on to remembering just the good times."

Happ was the 80th person executed in Florida since the U.S. Supreme Court reinstated the death penalty in 1976.

He was the first to die by a new lethal-injection cocktail that death-penalty opponents had warned could result in an inhumanely painful death if it failed to work properly.

The drug, administered in three stages, first knocked Happ into unconsciousness, then induced paralysis and finally, put him into cardiac arrest.

The curtain to the death chamber rose promptly at 6 p.m. on October 15, 2013 to reveal Happ supine, his arms outstretched at angles, IV needles taped into position, his wrists buckled into place by brown straps.

A rectangular mirror above his head reflected the solemn faces of Crowley's loved ones seated in the first two rows of the viewing galley.

After a prison official hung up the phone to Gov. Rick Scott's office and gave the go-ahead, Happ made his confession.

To Crowley's loved ones and those he had deceived into believing his innocence, Happ offered "my most sincere and heartfelt apologies."

"I pray the good Lord forgives me for my sins," he said. "But I can certainly understand why those concerned here cannot."

He ended with: "I pray the Lord grants peace to all those burdened with the solemn task here today. Amen."

At 6:03 p.m., the executioner, paid $150 for his duties and whose anonymity is protected by state law, began the flow of lethal chemicals.

Covered from the neck down with a crisp, heavy white sheet, Happ spasmed, his head twitched, eventually his mouth hung slack.

Happ, a thin, balding man with bushy eyebrows, succumbed in what seemed like a labored process as he lay strapped to a gurney in the fluorescent-lit death chamber.

At times his eyes fluttered, he swallowed hard, his head twitched, his chest heaved.

Five minutes into the process, a prison official touched Happ's eyelids and tapped his shoulders to confirm that he was unconscious.

At 6:15 a white-jacketed and gloved man appeared from behind a brown curtain and looked into Happ's pupils with a penlight, closed his eyelids and with a stethoscope checked for a heartbeat.
Happ was pronounced dead at 6:16 p.m.

After Gov. Scott signed Happ's death warrant Sept. 10, Happ was moved from a 6-foot by 9-foot death row cell to a 12-foot by 7-foot death-watch cell. Neither is air-conditioned.

In his last week, Happ received a telephone call from a sister. His only visitors Tuesday were two Catholic spiritual advisers. One, a priest, administered Happ's last rites.

For his final meal, Happ chose dessert. At 10 a.m., he had a 12-ounce box of assorted chocolates and 1 1/2 quarts of German chocolate ice cream.

Around noon he showered and then waited out his final hours in an execution holding cell.

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Wednesday, October 16, 2013

Miami judge: Killing justified under 'stand your ground'

A first-degree murder charge against Luis Martinez was dismissed late last month. The judge ruled Martinez was justified in fatally shooting a pipe-wielding, drug-addled attacker during a wild confrontation on a sidewalk four years ago, reported the Miami Herald.

It was the fourth Miami-Dade murder case dismissed by a judge since the 2005 passage of Florida’s controversial Stand Your Ground law.

The law eliminated a citizen’s duty to retreat before using deadly force to counter a deadly threat. The law also gave judges greater leeway in granting “immunity” to people deemed to have acted in self-defense.

“This was one of those times where justice was really served,” said Rick Hermida, Martinez’s lawyer. “This is why the Legislature passed this law. Luis was in reasonable fear of deadly force and he had no choice but to fire his weapon.”

The case arose in September 2009 when Enrique “Chino” Prado, who has been using Xanax, crack cocaine and marijuana, began picking fights with people outside Martinez’s home on the 3500 block of Northwest 97th Street.

Martinez’s brother rousted his sibling, who had been asleep inside the home. During the ensuing scuffle, Prado — who was armed with a realistic looking pellet gun — pushed Martinez’s mother; she fell and broke her finger.

In the frenzy, Prado dropped his pellet gun and ran off, later speeding past in his car, nearly hitting Martinez’s stepfather, according to court records. Martinez called Miami-Dade police. An officer arrived but left soon after, telling Martinez to throw away the pellet gun.

Not long after, however, Prado, after having taken more drugs, returned with two friends. Outside the home, Prado extended his hand as if offering to shake Martinez’s hand. But instead, he pulled Martinez toward him and raised a pipe “over his head to strike him.”

Martinez, whose gun was legal and registered, fired three to four times, hitting Prado, who stumbled toward his car and collapsed. Martinez turned his attention toward Prado’s two pals, who took off running.

Martinez heard a noise and turned back to see Prado’s “arms and legs moving as if he was reaching for something.” Martinez fired another volley at Prado.

Martinez called 911 and cooperated with police. Officers found a folding pocket knife belonging to Prado near the dead man’s body, although Martinez admitted he did not recall seeing the knife.

Miami-Dade Circuit Judge Yvonne Colodny ruled that Martinez’s second volley of bullets were justified. His fear that night was “reasonable” because of Prado’s “relentless” aggression that night, Colodny wrote in her Sept. 30 order.

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Tuesday, October 15, 2013

Connecticut's abolished death penalty not biased

Eleven death row inmates can be scheduled for execution

In a 44-page decision, Connecticut Judge Samuel J. Sferrazza wrote that five death row inmates had failed to prove any racial, ethical or geographical bias in the state's application of the death penalty, either in specific cases or collectively, reported the Hartford Courant.

Chief State's Attorney Kevin Kane said on Saturday that while his office expects the men to appeal the ruling, he believes the court's finding is very important.

During the trial, which ran for more than 10 days from September to December last year in a makeshift courtroom inside Northern Correctional Institution in Somers, the petitioners' case depended greatly on a study by Stanford Law School professor John J. Donohue III of the state's death penalty prosecutions.

Sferrazza wrote that not only is the generic statistical information provided by Donohue insufficient to prove racial disparity under the state's requirements, but that Donohue's conclusions were "questionable and lacked probative value."

The judge listed several issues with Donohue's data, including the fact that Donohue found a total of 205 cases prosecuted in the state between 1973 and 2007 that met the criteria for possible imposition of the death penalty. Of those cases, only 28 reached a penalty phase where the death penalty was considered, and of those 28, 12 murderers were sentenced to death — three of which were not considered in Donohue's final report because they were reversed on appeal.

Sferrazza wrote that the limited number of death penalty cases in Connecticut makes an over-arching judgment on a racial bias impossible.

The five petitioners in the lawsuit — Sedrick Cobb, Daniel Webb, Todd Rizzo, Richard Reynolds and Robert Breton — wanted their sentences converted from death to life in prison without parole.

They are among the 11 death-row inmates still facing execution even though the state legislature abolished the death penalty in 2012. The abolition does not apply to people already on death row whose crimes predated the legislation.

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Monday, October 14, 2013

Texas executes man who murdered his parents

The 30th Execution of 2013

Michael Yowell, a Texas man was put to death October 9, 20013 for killing his parents at their Lubbock home 15 years ago during a drug-influenced rampage that also left his 89-year-old grandmother dead.

"Punch the button," he told the warden.

He took several deep breaths, then began snoring. Within about 30 seconds, all movement stopped.

He was pronounced dead 19 minutes later at 7:11 p.m.

Yowell tried to delay his execution, the 14th this year in the nation's most active death penalty state, by joining a lawsuit with two other condemned prisoners that challenged Texas prison officials' recent purchase of a new supply of pentobarbital for his scheduled lethal injection.

The U.S. Supreme Court rejected the appeal minutes before Yowell was taken to the Texas death chamber.

Yowell's parents, John, 55, and Carol, 53, were found dead in the wreckage of their home following an explosion on Mother's Day weekend in 1998. Yowell's 89-year-old grandmother, Viola Davis, who was staying there, died days later of injuries suffered in the blast.

Yowell already was on probation for burglary and drug convictions. He was arrested on federal firearms charges and charged with his parents' slayings after authorities determined his mother had been beaten and strangled and his father was shot. Prosecutors showed John Yowell was killed when he caught his son stealing his wallet. Yowell then attacked his mother, opened a gas valve and fled. The home blew up.

Two days before the execution, the U.S. Supreme Court refused to review appeals that contended Yowell received shoddy legal help at his 1999 trial and in the early stages of his appeals.

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Sunday, October 13, 2013

New York: Drunk driver too drunk to be convicted?

Three New Yorkers convicted of murder as a result of car crashes while driving impaired are asking the New York Court of Appeals to throw out their convictions, according to The Associated Press. In a strange irony, Martin Heidgen, Taliyah Taylor and Franklin McPherson's defense for killing someone while impaired is hinged on the fact that  they were too impaired to be convicted.

The prosecution's contention they acted with "depraved indifference to human life" in fatal crashes that share a number of common threads: driving too fast in the wrong lane while under the influence.
Defense attorneys argued prosecutors failed to prove their clients acted with depraved indifference and, in fact, their clients were too impaired to know what they were doing.

Heidgen's attorney, Jillian Harrington, said her client had gotten lost when he drove his pickup the wrong way on Long Island's Meadowbrook State Parkway in 2005 and hit a limousine, killing the driver, and 7-year-old passenger and injuring five others.

"We have no proof he realized he was going in the wrong direction," she told the Court of Appeals.
Heidgen had a blood alcohol content of 0.28 percent, police said. Nassau County Assistant District Attorney Maureen McCormick urged the court to uphold the juries' conclusions in the cases.

All three drivers were also convicted of lesser charges ranging from reckless endangerment to vehicular manslaughter that were not contested in the appeals. A midlevel court upheld all three murder convictions.

The Court of Appeals rulings are expected next month.

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Saturday, October 12, 2013

GateHouse: The real tragedy behind the Washington police shooting

Matthew T. Mangino
GateHouse News Service
October 11, 2013
Last week, Miriam Carey, a mother and licensed dental hygienist from Connecticut, was shot and killed in Washington, D.C., by Capitol Police and Secret Service after a bizarre high-speed chase near the White House and Capitol building.
Carey told police in Connecticut last December that she was a prophet and that President Barack Obama had her and her residence under surveillance. Carey’s encounter with police led to a mental health evaluation.
In an interview with CNN, Amy Carey, one of Miriam’s sisters, said, “I just know that my sister did experience postpartum depression with psychosis.” She said her sister had received “treatment and medication and counseling.”
Miriam Carey’s death at the hands of the police was tragic in more ways than one. Was her death justified, and could better treatment for mental illness have prevented this and similar situations?
Her death was a homicide, and some homicides are not illegal. The law carves out exceptions for some killings that would otherwise be prosecuted as manslaughter or murder. These are referred to as "justifiable homicide." 
In this case Carey was shot and killed while still in her car with her young toddler in the vehicle.  According to the New York Times, the rules of the Washington Metropolitan Police, though not involved, say that no officer shall discharge a firearm “at or from a moving vehicle unless deadly force is being used against the officer or another person,” and the rules specifically note, “For purposes of this order, a moving vehicle is not considered deadly force.”
Police in Washington are reviewing the use of deadly force by the officers involved. The investigation will reconstruct the car chase and shooting. They will also examine how officers dealt with Carey and whether the proper protocols were followed. That may soothe the anguish felt by some who are concerned by the use of deadly force in this situation.
However, the results of such investigations are predictable. For instance, according to the Times, from 1993 to early 2011, FBI agents fatally shot about 70 people and wounded about 80 others — and every one of those was deemed justified.
The incidence of justifiable homicides by the police has grown nationally by about one-third since 2000, according to James Alan Fox, a professor at Northeastern University.
Even more alarming is a review of police shootings by the Portland Press Herald indicated that at least half of the estimated 375 to 500 people shot and killed by police each year in this country have mental health problems — not unlike Miriam Carey.
The most urgent question is not whether the police acted appropriately in a frantic moment of real, or perceived, threat to the president, Congress or the well-being of fellow officers or innocent bystanders.
The real question is, "What are we doing as a country to protect and care for some of the most vulnerable members of society?"
According to the Press Herald review, the National Institute of Mental Health found one in four American adults has a mental health disorder, at a time when more than $4.53 billion has been cut from state public mental health budgets.
More Americans receive mental health treatment behind bars than in hospitals or treatment centers. The reason? Hospital beds are extremely difficult to find for the seriously mentally ill. In 1955, there was one psychiatric bed for every 300 Americans. In 2005, there was one psychiatric bed for every 3,000 Americans.
A report just last month by the National Sheriffs Association on justifiable homicide found that “the transfer of responsibility for persons with mental illness from mental health professionals to law enforcement officers has brought with it major problems for the latter.”  
The report concludes “that untreated serious mental illness is a large, and still increasing, causal factor in the justifiable homicides associated with law enforcement officers.”
Astonishingly, being locked away in a prison that serves as a de facto psychiatric hospital may not be the worst fate awaiting a mentally ill offender entangled in the criminal justice system.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.

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Friday, October 11, 2013

The Cautionary Instruction: Third Circuit considers retroactivity of Miller v. Alabama

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 11, 2013

The U.S. Third Circuit Court of Appeals ruled last week that three men, two from Pennsylvania and one from New Jersey, sentenced as teenagers to life in prison without parole will have an opportunity to convince federal judges they should be resentenced.

The men, convicted of murder in New Jersey, Philadelphia and Allegheny County and sentenced to life in prison without parole, argued that the high court's decision in Miller v. Alabama is retroactive.

The cases are before the court as successive petitions for habeas corpus. In order for the court to hear such petitions the petitioner must apply for certification. Certification will be granted if the petitioner makes a prima facie showing that the claim relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court."

Prior to the Third Circuit ruling, the matter had limited review in Pennsylvania. Erie County Judge Shad Connelly ruled this summer in Commonwealth v. Antonio Howard that Miller is not retroactive.
"There is nothing in Miller which either explicitly or impliedly sets forth that it is to be applied retroactively," Connelly wrote. He added, "Neither the Pennsylvania Supreme Court nor Pennsylvania Legislature has recognized the Miller decision as retroactive."

In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Miller decision applies retroactively to all prisoners serving mandatory life sentences regardless of when they were sentenced. In Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.

In Mississippi the Supreme Court in Jones v. State, No. 2009-CT-02033-SCT ruled, “We are of the opinion that Miller created a new, substantive rule which should be applied retroactively to cases on collateral review.”

In Hill v. Snyder, 5:10-CV-14568-JCO-RSW, a U.S. District Court for the Eastern District of Michigan declared that all prisoners in Michigan who committed crimes as children and were sentenced to life now have a right to parole. The Court noted that it would find Miller retroactive on collateral review.

In People v. Williams, 2012 IL App (1st) 111145 an Illinois appellate court ruled, “We hold that the Supreme Court’s decision in Miller should be retroactively applied in this case because it is a rule that ‘requires the observance of those procedures that are implicit in the concept of ordered liberty.’”
However, in Geter v. State, No. 3D12-1736 a Florida appellate court held that Miller does not apply retroactively to cases which were final before the decision was issued.

The Pennsylvania Supreme Court is considering the retroactivity of Miller. More than a year has passed without a decision in the case of Commonwealth v. Ian Cunningham, No. 38 EAP 2012.

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 and follow Matt on Twitter @MatthewTMangino.

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Thursday, October 10, 2013

Juvenile Lifers Wait on Word From Pa. Supreme Court

Matthew T. Mangino
The Pennsylvania Law Weekly
October 8, 2013

More than a year has passed without a decision from the Pennsylvania Supreme Court in the case of Commonwealth v. Cunningham, No. 38 EAP 2012. The decision is extremely important to the roughly 460 inmates who are serving life-without-parole sentences for offenses committed as juveniles.

In 2012, the U.S. Supreme Court ruled in a split 5-4 decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), that a mandatory sentence of life in prison without parole for juveniles violates the Eighth Amendment's ban against "cruel and unusual punishment."

On September 12, 2012, the Pennsylvania Supreme Court heard oral arguments in Ian Cunningham's case. He was 17 when he shot and killed a man during a robbery in Philadelphia. Cunningham was found guilty of second-degree murder by a jury and received a mandatory sentence of life without parole in 2003.

Cunningham's case has taken a tortured path to the Pennsylvania Supreme Court.

His conviction was affirmed by the Superior Court. He filed a Post-Conviction Relief Act petition, which was dismissed without a hearing. His appeal to the Superior Court was once again denied. He filed an allowance of appeal with the Supreme Court. The allowance was originally held in abeyance pending a decision in Commonwealth v. Batts, No. 13-0741 (Pa. March 26, 2013), and then allocatur was granted in August 2012 after the U.S. Supreme Court decision in Miller.

In March, the Pennsylvania Supreme Court sent Qu'eed Batts' case back to a lower court for resentencing for a murder he committed when he was 14. Batts' case was on direct appeal. Cunningham had already exhausted his direct appeals.

Attorneys for Cunningham have argued that his mandatory sentence prohibited the sentencing court from considering mitigating evidence. Because he was convicted of second-degree murder, the trial court imposed the mandatory sentence of life without parole.

The linchpin of the Miller decision was that "mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him."

The sentence imposed upon Cunningham was mandatory and, as a result, information regarding his age, his family and home environment, his level of sophistication in dealing with the criminal justice system, the circumstances of the offense, and his potential for rehabilitation were not considered in determining whether life without parole was an appropriate sentence.

There was plenty of mitigation for the court to consider in Cunningham's case.

According to Cunningham's brief, at the time of the murder, he was 17 years old. He was the youngest of three children; his father abandoned the family when Cunningham was 4 years old. He was placed in three different facilities as a juvenile between May 1998 and August 1999. He returned to the family home in August 1999 and resided there until his arrest in December 1999 for the offenses of which he was convicted. At the time of sentencing, his older brother was already serving a life sentence.

Cunningham only completed the ninth grade. He began drinking alcohol and smoking marijuana at age 14, which escalated to cocaine laced with cough syrup in August 1999, right after his release from juvenile placement.

Last month, the Pennsylvania Supreme Court sua sponte directed that the Cunningham case be resubmitted for consideration on previously filed briefs. When Cunningham was argued, the court was short-handed. Only six of seven justices heard the arguments. At the time, then-Justice Joan Orie Melvin was embroiled in a criminal investigation that resulted in her conviction and resignation.

Orie Melvin's problem became Cunningham's problem. It appears that the six remaining justices were split 3-3. Since Melvin's resignation, former Superior Court President Judge Correale Stevens was confirmed to fill the vacancy caused by Orie Melvin's departure. Presumably the resubmission is being ordered so that Stevens can break the deadlock among the justices.

Attorneys for Cunningham have asked the court to reconsider the order. Cunningham's attorneys want the Supreme Court to rebrief and reargue the case and have formally asked the court for this relief in light of new developments.

Cunningham's attorneys have alleged that "subsequent to the argument of this matter ... a number of courts across the country have decided that retroactivity question."

The matter has had limited review in Pennsylvania. Erie County Court of Common Pleas Judge Shad Connelly ruled this summer in Commonwealth v. Howard that Miller is not retroactive.
"There is nothing in Miller which either explicitly or impliedly sets forth that it is to be applied retroactively," Connelly wrote. He added, "Neither the Pennsylvania Supreme Court nor Pennsylvania Legislature has recognized the Miller decision as retroactive."

Just last week, the U.S. Third Circuit Court of Appeals ruled in In re Michael J. Pendleton, No. 12-3617; In re Franklin X. Baines, No. 12-3996; and In re Corey Grant, 13-1455, that three men, two from Pennsylvania and one from New Jersey, sentenced as juveniles to life in prison, will have a chance to argue that Miller is retroactive.

The cases are before the court as second or successive petitions for habeas corpus. In order for the court to hear such petitions the petitioners must apply for certification. Such certification will be granted if the petitioners make a prima facie showing that the claims rely on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court."
In these cases the court ruled that the petitioners made a prima facie showing that Miller is retroactive.

In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Miller decision applies retroactively to all prisoners serving mandatory life sentences regardless of when they were sentenced, reported Stateline, the news service of the Pew Charitable Trusts. In Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.

In Mississippi, the Supreme Court in Jones v. State, No. 2009-CT-02033-SCT, ruled, "We are of the opinion that Miller created a new, substantive rule which should be applied retroactively to cases on collateral review."

In Hill v. Snyder, 5:10-CV-14568-JCO-RSW, the U.S. District Court for the Eastern District of Michigan declared that all prisoners in Michigan who committed crimes as children and were sentenced to life now have a right to parole. The court noted that it would find Miller retroactive on collateral review.

In People v. Williams, 2012 IL App (1st) 111145, an Illinois appellate court ruled, "We hold that the Supreme Court's decision in Miller should be retroactively applied in this case because it is a rule that 'requires the observance of those procedures that are implicit in the concept of ordered liberty.'"

However, in Geter v. State, No. 3D12-1736 a Florida appellate court held that Miller does not apply retroactively to cases that were final before the decision was issued.

Whether reargued or reviewed, Pennsylvania's juvenile lifers deserve an expedited answer to a fundamental question: Will those inmates have "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation?"

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Arizona executes oldest person on death row

The 29th Execution of 2013

Edward Harold Schad Jr., 71, the oldest person on Arizona's death row has been executed nearly 35 years after being charged with murder, reported The Associated Press.

Schad was given a lethal dose of pentobarbital at the state prison in Florence, and was pronounced dead on October 9, 2013 at 10:12 a.m.

In his final hours, Schad thanked his lawyers and corrections officers who watched over him during the 35 days since his execution was scheduled, said Kelley Henry, a federal public defender who helped represent him.

Schad was on parole for the accidental 1968 strangulation death of a male sex partner in Utah when he was accused of killing Lorimer "Leroy" Grove, 74. He was arrested in Utah while driving Grove's Cadillac several weeks after Grove's body was found on Aug. 9, 1978, south of Prescott. There was a rope knotted around the victim's neck.

Authorities say Schad drove Grove's car across the country, used Grove's credit cards and forged a check from his bank account.

Schad was convicted in Grove's death in 1979 and again in 1985 after the first conviction was thrown out.

The conviction was upheld by the state Supreme Court in 1989 but since has been tied up in a series of federal court appeals. The U.S. Supreme Court in June lifted a stay put in place by an appeals court, ordering the court to issue the execution authorization.

Schad has maintained he didn't kill Grove, but he told the state's clemency board at a hearing last week that he has accepted his fate.

"I'm 71. I don't have many years left, but I would like to keep what I've got and maybe get a few more, experience some of the green grass outside maybe," Schad said while asking the board to commute his sentence to life in prison. "If we have to go down that road on Oct. 9 ... I'll get my last rites. I'll go through that. I mean, I have no fear."

A top Yavapai County prosecutor told the clemency board that juries have twice rejected Schad's assertion of innocence.

"He doesn't take any responsibility for what he did," Chief Deputy County Attorney Dennis McGrane told the board. "Accidents two times, died of strangulation? I don't think so."

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Wednesday, October 9, 2013

Prison medical care big business

Medical neglect runs rampant in prisons across the country, a largely invisible problem that has few in positions of power scrambling for a meaningful solution, reported The Nation. The problem is not unique to states that have outsourced their prison healthcare: In California, the crisis of overcrowding in state facilities, merged with catastrophically inadequate state-provided care, was the basis for a 2011 Supreme Court decision ordering the state to release tens of thousands of prisoners.

In those states that have turned to private companies to provide medical care to prisoners, stories of neglect and abuse also abound. In 2005, The New York Times published a shocking investigation into Prison Health Services, a company responsible for two prisoner deaths in separate jails in upstate New York within two months of one another. In both cases, the inmates had been repeatedly denied medication and accused of faking their distress.

The Times also told the story of 46-year-old Diane Nelson, who died of a heart attack in a Florida jail. “Stop the theatrics,” a Prison Health nurse snapped at her as she collapsed. “That same nurse, in a deposition, also admitted that she had joked to the jail staff, ‘We save money because we skip the ambulance and bring them right to the morgue.’”

In a 2003 piece for Harper’s, Wil S. Hylton profiled Correctional Medical Services, the company that in 2011 merged with Prison Health Services to create Corizon. Hylton’s piece exposed staggering levels of malpractice at CMS, which he described as “not merely the nation’s largest provider of prison medicine,” but “also the nation’s cheapest provider, a perfect convergence of big business and low budgets.”

In 2009, CMS CEO Rich Hallworth boasted a salary of nearly a million dollars, according to Forbes. Today, his company, Corizon, makes nearly $1.5 billion a year ostensibly treating inmates in some twenty-nine states.

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Tuesday, October 8, 2013

Florida man whose execution was postponed for political fundraiser executed

The 28th Execution of 2013

On October 1, 2013, Marshall Lee Gore was the third death row inmate executed in Florida since late May. His execution was rescheduled three times, twice when courts halted the proceeding as his lawyers argued he was mentally incompetent for execution, reported Reuters.

A third postponement occurred in September when Florida's Attorney General Pam Bondi asked Gov. Rick Scott to delay Gore's execution to allow her to attend a political fundraiser. Bondi later apologized.

Gore was pronounced dead at 6:12 p.m. EDT from a lethal injection at the Florida State Prison near Starke, said Misty Cash, a spokeswoman for the Florida Department of Corrections. He died without making a final statement.

Gore fought for more than half his life against a string of convictions for violent crimes against women. His attorneys claimed that Gore - who laughed and cursed during one trial and made up bizarre claims that he was on death row because powerful state leaders wanted to harvest his organs - was mentally ill.

Prosecutors, however, described Gore as ruthless and claimed he attempted to dupe a psychiatric panel that once examined him.

Gore was sentenced to die for the 1988 killing of Robyn Novick, a 30-year-old exotic dancer whose nude body was found at a rural trash dump in Miami-Dade County.

Gore was seen driving Novick's yellow Corvette a day after she disappeared. Gore said he had borrowed the car and abandoned it, but denied the killing.

He was also convicted in the slaying of Susan Roark, whose body was found in northern Florida months after she vanished.

Gore also received five life sentences and three 30-year terms for a string of felonies including the beating, raping and stabbing another woman just three days after the Novick murder.

The victim, Tina Corolis, survived the attack and she was found near the same trash heap where Novick's body had been dumped.

In all, Gore was suspected in 15 sexual assaults and one other attempted murder. He had also served time in a federal prison on a firearms conviction.

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Monday, October 7, 2013

Third Circuit takes first step toward retroactivity for Miller

The U.S. Third Circuit Court of Appeals ruled last week that three men, two from Pennsylvania and one from New Jersey, sentenced as teenagers to life in prison without parole will have an opportunity to convince federal judges they should be resentenced, reported the Allentown Morning Call.

The men, convicted of murder in New Jersey, Philadelphia and Allegheny County and sentenced to life in prison without parole, argued that the high court's decision in Miller v. Alabama is retroactive because the court applied it to a companion case in which the offender had used up his direct appeal rights.

The cases are before the courts as second or successive petitions for habeas corpus.  In order for the court to hear such petitions the petitioner must apply for certification.  Such certification will be granted if the petitioner make a prima facie showing that the claim relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court."

In these cases the court ruled that the petitioners made a prima facie showing that Miller is retroactive.

In Miller, the Supreme Court considered whether mandatory sentences of life without parole for juvenile killers violate the Eighth Amendment ban on cruel and unusual punishment.

Building on years of decisions paring back the death penalty first for mentally challenged killers, and then for juvenile killers, the court found that it is unconstitutional to imprison for life youngsters whose brains and impulse controls are not fully developed.

"It certainly is, in my opinion, a good sign," said Marc Bookman, who argued in favor of the three men.

State prosecutors in Pennsylvania opposed that argument, according to the Third Circuit decision, but federal prosecutors in New Jersey conceded that the Supreme Court intended its decision to apply retroactively.

The Pennsylvania Supreme Court is weighing the matter in the case of Ian Cunningham of Philadelphia, who was found guilty of shooting a man to death during a robbery in 1999, when he was a juvenile.

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Sunday, October 6, 2013

Judges in Ohio use injections to combat drug addiction

Matthew T. Mangino
The Youngstown Vindicator
October 6, 2013

Some Ohio judges are using a controversial and expensive injection therapy to battle drug addiction. Several years ago the Food and Drug Administration approved the use of a drug injected once a month, known as Vivitrol. The injections block receptors in the brain and prevent a person from getting high.

Vivitrol is a derivative of Naltrexone developed about 30 years ago to prevent heroin relapses. The government approved Naltrexone to treat heroin addiction in 1984 and for alcoholism in 1994.

Naltrexone was developed in the form of a pill. However, the pill required a measure of discipline, as it needed to be taken daily. By the 1990s, a federal nonprofit agency, the National Institute on Drug Abuse, funded research to develop an injectable form of the drug, reported the St. Louis Post-Dispatch. Vivitrol is that drug.

A study conducted in Russia with 250 heroin addicts, demonstrated that Vivitrol reduced relapse and prevented narcotic cravings. Vivitrol is not addictive, unlike other anti-addiction drugs, such as methadone and buprenorphine. Those medicines are used to replace heroin or other opiates with a more benign form of addiction.

Positive results

In the Russian study, after six months, 86 percent of patients taking Vivitrol were drug-free, going to counseling sessions and functioning in a job or at school, compared to 57 percent of those who did not receive the drug, reported National Public Radio.

The drug has gotten the attention of judges who must deal with the soaring recidivism rate of drug- addicted offenders.

A Vivitrol drug court in Hocking County currently has 10 people, with a waiting list to enter the program. The court follows accepted drug court protocols as established in jurisdictions across the country. “It is an intensive program. These people here are success stories,” Hocking County Municipal Court Judge Fred Moses told the Logan Daily News.

Near San Diego, Calif., the North County Drug Court program is also experimenting with Vivitrol. The drug is expensive so participation in the program is capped at 10 people. The pilot is one of a number of studies across the country. Maryland is using Vivitrol to help drug-addicted inmates transition back into the community. There are pilots in Massachusetts, Ohio, Pennsylvania and New York’s Rikers Island jail, reported the San Diego City Beat.

In Pennsylvania, Vivitrol has been court-ordered. Fayette County Judge Steve P. Leskinen has ordered offenders to use Vivitrol with moderate success. Next month the Pennsylvania DUI Association will present on the use of the drug in diverting criminal prosecutions.


Judge Robert Peeler of Warren County, Ohio, had three defendants die of heroin overdoses after he released them from jail. “They died because I released them. It’s impossible to keep them all in jail,” he told the Cincinnati Enquirer.

As a result, Peeler took the unprecedented act of ordering soon-to-be released defendants to undergo a series of nine to 12 injections of Vivitrol. He ordered some to receive the first injection while in jail.
Not everyone is sold on Vivitrol. Statistics from the Ohio Department of Mental Health and Addiction Services showed that 60 percent of addicts who treated with methadone stayed opiate-free. According to the Enquirer, the 2011 pilot program in Warren County found that inmates treated with Vivitrol injections had only a 25 percent success rate.

The real concern is the cost. If the first shot is administered while the inmate is still in jail the county will be responsible for the cost. Vivitrol will cost Ohio taxpayers about $1,100 per injection. The real question is will those injections reduce jail costs, court costs and the cost and suffering that comes from future victimization?

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

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Saturday, October 5, 2013

GateHouse: Confusion reigns for juvenile life without parole

Matthew T. Mangino
GateHouse News Service
October 4, 2013

The U.S. Supreme Court is recognized as the ultimate court of last resort. That means the final word rests with the nine justices sitting in Washington’s “marble palace.” Yet the court often leaves us scratching our heads after seemingly straightforward decisions.

In the last 10 years, the Supreme Court has made some monumental decisions about the punishment of young offenders. In Roper v. Simmons, decided in 2005, the court held that it was cruel and unusual punishment to impose the death penalty for killings committed by juveniles. Graham v. Florida, a 2010 decision, ruled that it was cruel and unusual punishment to impose a life sentence without the possibility of parole for non-homicide crimes committed by juveniles.

Most recently, in Miller v. Alabama, the court ruled that a “mandatory” sentence of life in prison without parole for a juvenile was unconstitutional.

Following the Roper decision, all the offenders who committed their crimes as juveniles were released from death row. After Graham, all the offenders serving life for non-homicide offenses committed as juveniles were released or scheduled for parole consideration.

However, in the wake of Miller, most of the roughly 2,000 inmates serving mandatory life without parole for killings committed as juveniles have not had their sentences vacated. Why? The court didn’t provide any rules or guidelines for carrying out the decision.

The earlier decisions prohibited the government from ever imposing certain punishments — the death penalty or life without parole for non-homicide crimes. Those were considered substantive changes to the law. Miller does not make it unconstitutional in all circumstances for a state to impose a sentence of life without parole. Rather, Miller only holds that a life sentence for a juvenile cannot be mandatory. Some suggest this was a procedural change in the law and therefore not retroactive.

Individual states have been left to decide whether Miller applies to all juvenile life sentences, whenever imposed. In Pennsylvania, which has the largest number of inmates whose sentences are covered by Miller, the state supreme court has been considering the retroactivity question for over a year. The matter was argued on Sept. 12, 2012, and there has not been a decision. In fact, because the law is evolving so rapidly around the country, lawyers have asked to reargue the matter before the court.

In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Supreme Court decision applies retroactively to all prisoners serving mandatory life sentences regardless of when they were sentenced, reported Stateline, the news service of The Pew Charitable Trusts. In Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.

The Minnesota Supreme Court decided that "the rule announced in Miller is a new rule of criminal constitutional procedure that is neither substantive nor a watershed rule implicating the fundamental fairness and accuracy of the criminal proceeding."

A federal judge ruled that Michigan must grant parole consideration to anyone convicted of murder as a juvenile, rejecting the state attorney general’s request that Miller only applies to offenders who challenged the state’s law.

An Iowa court recently ruled that Gov. Terry Branstad overreached last year when he commuted the life sentences of offenders convicted as juveniles and imposed an opportunity for parole after 60 years in prison. The court said the governor's commutation still amounted to a life sentence without parole.

The issues of procedure and substance mean little to a prisoner facing a lifetime behind bars. This issue turns on fairness. Why would a juvenile who was convicted of a murder in 1983 be any more culpable than a juvenile who committed a murder in 2013? Granted, the court did not abolish life without parole, but a juvenile offender who is entitled to a reasonable opportunity for parole for a crime committed today, is no more entitled to that relief than an offender who committed her crime 10, 20 or 50 years ago.

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

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Friday, October 4, 2013

The Cautionary Instruction: Justice Reinvestment may not deliver on promises

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 4, 2013

Justice Reinvestment is sputtering in Ohio. The two-year-old plan to reduce Ohio’s prison inmate population is not having the hoped-for impact. The number of prisoners behind bars is expected to spike.

Gary Mohr, director of the Ohio Department of Rehabilitation and Correction, said the state prisons’ already high population of 50,000 could soar to 52,000 in two years and top 53,000 in six years. The population numbers are in contrast to rosy projections from 2011 when lawmakers passed the Justice Reinvestment Initiative (JRI).

Under the law, the number of inmates was supposed to drop to around 47,000 by 2015 and dip below 47,000 two years after that.

JRI is a data-driven approach to improve public safety, reduce corrections and related criminal justice spending, and reinvest savings in strategies that can decrease crime and strengthen neighborhoods. Seventeen states are involved in implementing some form of justice reinvestment including Pennsylvania.

As a result of JRI, the Pennsylvania Department of Corrections touted a decline in the inmate population of 573 inmates during the period ending December 31, 2012-- the largest decrease and only the third yearly population decline in the past 40 years.

Secretary of Corrections John Wetzel said in May, “We are closing two facilities -- SCI Greensburg and SCI Cresson -- older, more costly and less efficient facilities which will result in $22-$23 million in savings in the 2013-14 budget.”

However, as in Ohio, the news in 2013 is not so cheery. For the first eight months of the year, Pennsylvania’s prison population is on the rise. This year, there are 254 more inmates in Pennsylvania’s prisons bringing the total as of August 31 to 51,438.

Ohio is currently at 131 percent of inmate capacity and could hit 139 percent by 2019. California’s prison system was declared unconstitutional at 140 percent. Pennsylvania is at a “modest” 110 percent of capacity.

To fix the problem, Mohr proposes working with judges to find ways to reduce prison commitments and with lawmakers to re-examine penalties for less serious crimes.

Ohio Supreme Court Chief Justice Maureen O’Connor admitted in her recent State of the Judiciary speech that some of the overcrowding initiatives included in JRI have “not been as successful as hoped.”

Justice O’Connor acknowledged that, “We as judges must be part of the solution because we are certainly part of the problem. We cannot take an attitude of out of sight, out of mind once offenders leave the courtroom.”

I recently wrote for GateHouse News Service, “The criminal justice system can benefit from meaningful reform. Let’s not nibble around the edges.” JRI is, unfortunately, part of the nibbled edge.

Real criminal justice reform would open the door to alleviating prison overcrowding, provide a fairer sentencing scheme and reduce the collateral consequences of conviction.

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