Saturday, November 30, 2013

GateHouse: ‘Stand your ground’ here to stay

Matthew T. Mangino
GateHouse News Service
November 29, 2013
This past summer, Florida Republican state Rep. Matt Gaetz, chairman of the state’s Criminal Justice Subcommittee, said, when asked about repealing the state’s "stand your ground" law, he didn’t support “changing one damn comma” in the law.
Gaetz got his way. Earlier this month the committee rejected the repeal effort by an 11-2 vote. "Floridians are done being hapless victims," said Gaetz.
Those states with stand your ground are hanging on to it and some without are taking action. The Ohio House of Representatives voted recently to adopt a variation of stand your ground.
Under current Ohio law residents have a duty to retreat before using deadly force. Ohio H.B. 203 would eliminate that duty to retreat.
The legislation has been mockingly referred to as the “George Zimmerman bill” named for the Florida man — recently arrested again — whose killing of 17-year-old Trayvon Martin ignited a firestorm around stand your ground and the castle doctrine.
There are notable opponents to the deadly self-defense laws. U.S. Attorney General Eric Holder, Jr. has taken a strong stance against stand your ground laws.
"There has always been a legal defense for using deadly force if — and the 'if' is important — no safe retreat is available," Holder said. "It's time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods."
Since Florida enacted the first stand your ground law in 2005, at least 22 other states have enacted some variation of the expansive self-defense law. The issue is unsettled even in states that have adopted the law.
In March, months before the Zimmerman trial, the New Hampshire House passed a bill to repeal the state's stand your ground law enacted in 2011. The effort later failed in the state senate, according to the Concord Monitor.
 Last summer, Arizona Sen. John McCain, a Republican, called for a review of his state's stand your ground law.
According to the National Conference of State Legislatures, a bill in North Carolina that would have amended aspects of the law regarding use of force against an intruder never made it out of committee. There were about a dozen bills before state legislatures in 2012, several of which would have amended circumstances allowing for use of force by citizens. None of those proposals advanced.
In Pennsylvania, the chances of repealing the expanded castle doctrine are next to none. In 2011, 45 out of 50 state senators voted in favor of the law. There is little stomach among Pennsylvania lawmakers for quarrelling with gun supporters.
There is growing concern that stand your ground laws may be doing more harm than good.  There are a number of studies indicating that stand your ground is actually increasing homicides.
A Texas A&M University study found "that homicides go up by 7 to 9 percent in states that pass the laws, relative to states that didn't pass the laws over the same time period," according to A&M economist Mark Hoekstra.
As to whether the laws reduce crime — by creating a deterrent for criminals — he says, "we find no evidence of any deterrence effect over that same time period."
A study sponsored by Mayors Against Illegal Guns found “that justifiable homicides increased by 53 percent in states with stand your ground laws, while decreasing by 5 percent in states without these laws.”
Supporters of Florida’s law point to the state's declining crime rate as evidence that stand your ground protects innocent Floridians from violent crime. The Florida Department of Law Enforcement reported a 5.2 percent drop in serious crime during the first half of 2013.
Regardless of the research, the political climate is clear. Adam Winkler, a law professor at the University of California, Los Angeles, told the Christian Science Monitor, "For better or worse, stand your ground laws are here to stay."
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.

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Friday, November 29, 2013

The Cautionary Instruction: Brain development becomes courtroom staple

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 29, 2013

The U.S. Supreme Court has helped spur a bevy of action focusing on the effect of adolescent brain development on criminal activity.

Starting with Roper v. Simmons, a 2005 case that abolished the death penalty for juveniles, and continued with Graham v. Florida, a 2010 decision finding juvenile offenders could not be sentenced to mandatory life-without-parole for non-homicide offenses and most recently in Miller v. Alabama, where the Court found that a state cannot impose a life-without-parole sentence for juvenile homicide offenders on a mandatory basis.

Roper cited behavioral studies, while Graham and Miller cited adolescent brain research suggesting that juveniles may be less culpable than adults.

Dr. Jay Giedd of the National Institute of Mental Health says brain scans show that the frontal lobes do not fully mature until age 25, and their connections to other parts of the brain continue to improve to at least that age.

Research suggests that this circuitry weighs how much priority to give incoming messages like "Do this now" versus "Wait! What about the consequences?" In short, the frontal lobes play a key role in making good decisions and controlling impulses.

The inexplicable behavior and poor judgment teens are known for almost always happen when teens are feeling high emotion or intense peer pressure, conditions that overwhelm the still-maturing circuitry in the front part of brain, Giedd explained.

Judges and juries are being swayed by studies showing that adolescent brains do not function the same as adult brains. One study by Kristina Caudle, a neuroscientist at Weill Cornell Medical College used a technology called functional MRI to observe how the brains of people from 6 to 29 reacted to a threat.

"The typical response — and what you might think is a logical response — is to become less impulsive, to sort of withdraw, to not act when there is threat in the environment," Caudle says. "But what we saw was that adolescents uniquely seemed to be more likely to act. So their performance on this task became more impulsive."

“The idea is, because of their immature brains, adolescents may be more likely to engage in reckless and sensation-seeking behavior—and to get involved in criminal activity,” explained Columbia Law School Professor Elizabeth S. Scott.

"Teenagers tend to be drawn to danger,” BJ Casey of Sackler Institute for Developmental Psychobiology at the Weill Cornell Medical College told Popular Science. “It’s as if they [juveniles] can’t help themselves.” That is not to say they cannot be trusted to make any decisions whatsoever, just that those abilities “might be compromised in emotional setting.”

Though teenagers might be at the healthiest and quickest stage of their life, Casey said, “in the heat of the moment, they falter. We don’t tend to do that as much as adults."

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Thursday, November 28, 2013

1863: President Lincoln's Thanksgiving Day Proclamation

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God.

In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union.

Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom.

No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy.

It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.

In testimony whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed.

Done at the City of Washington, this Third day of October, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the Unites States the Eighty-eighth.

A. Lincoln

What might have been: America without the death penalty

In 1976, the U.S. Supreme Court brought the death penalty back after a four year hiatus. 

In Gregg v. Georgia, 428 U.S. 153 (1976) the Court adopted the revised death penalty laws of Georgia, Florida and Texas.  The case was actually about the laws of five different states: Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana.

There were two dissenting justices in Gregg. Justices William Brennan and Thurgood Marshall did not agree with reauthorizing the death penalty.

At the end of his book, A Wild Justice, Evan Mandery shows how close the Supreme Court came to ending the death penalty.
Mandery asks “What if the constitutionality of the death penalty could have been decided by each justice at the end of his life, with the benefit of his full collected wisdom?”

Three justices who voted in the majority in Gregg had different opinions later in life. In 1991 Lewis Powell said the death penalty “serves no useful purpose.” In 1994, two decades after his votes the opposite way in 1976, Harry Blackmun famously declared: “From this day forward, I no longer shall tinker with the machinery of death.” No rule or procedure could make the application of capital punishment fair, he had concluded. In 2010 John Paul Stevens said that if he could change a single vote he cast on the bench, he would choose his decision to uphold the Texas [Gregg] death penalty statute.

Had those three justices expressed those opinions in 1976 America might not have a death penalty.

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Wednesday, November 27, 2013

NYC: Operation Crew Cut Saves Lives

A New York Police Department program targeting neighborhood turf wars resulted in a more than 50% drop in homicides on people between the ages of 13 and 21, Commissioner Raymond Kelly told The Wall Street Journal.

The program, called Operation Crew Cut, was launched a year ago in response to an uptick in the number of shootings and homicides in the latter half of 2011 and the early part of 2012.

Investigators determined that the violence was largely the result of crews of loosely-organized young people fighting over pieces of turf sometimes as small as different parts of apartment buildings.

During the past year the operation has resulted in 25 citywide investigations that has led to the indictment of more than 400 people, Kelly said.

Kelly credits the operation with a 50% reduction in homicides of people between 13 and 21. So far this year, 43 people in that age group have been killed, compared to 87 over the same time frame last year.

“Lives are being saved and the majority of those lives are young minority men,” Kelly said.

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Tuesday, November 26, 2013

Federal prison overcrowding severe

Overcrowding in U.S. federal prisons is so severe, the problem could go on for years even if Congress takes steps to reduce the number of people behind bars, according to a report released Urban Institute.

Even if Congress were to cut mandatory minimum sentences for drug crimes by half — an idea with dubious political prospects — federal prisons would still be 20 percent above capacity in 10 years, the report said, reported Reuters.

They would be 55 percent above capacity if policies went unchanged, it said.

“As much as there are many good policy ideas out there, it’s going to take several of them to even get to the point where prisons are not overcrowded,” said Nancy La Vigne, director of the Urban Institute’s Justice Policy Center.

The report also details the potential budget savings from a menu of changes under discussion in Congress.

If lawmakers were to apply retroactively new prison terms that they approved in 2010 for crack cocaine-related crimes, they would cut prison spending by $229 million over 10 years and free up 22,000 “bed-years.” One person released 12 months early frees up one bed-year.

The issue is a priority for U.S. Attorney General Eric Holder.

“There’s been a tendency in the past to mete out sentences that frankly are excessive,” Holder said at a news conference on Monday. Given financial constraints, he said, “We have to really rethink our priorities.”

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Monday, November 25, 2013

Pretrial detention costs $9 billion a year

Pretrial detainees account for more than 60 percent of the inmate population in our jails. The cost to incarcerate defendants pretrial has been estimated at over $9 billion per year.
Many pretrial detainees are low-risk defendants, who, if released before trial, are highly unlikely to commit other crimes and very likely to return to court. Others present moderate risks that can often be managed in the community through supervision, monitoring, or other interventions. There is, of course, a small but important group of defendants who should most often be detained because they pose significant risks of committing acts of violence, committing additional crimes, or skipping court.
According to The Crime Report, extended pretrial detention correlates longer sentences, increased criminal activity after cases are over, and a decreased likelihood that defendants will return to court, according to a series of studies released recently by the non-profit Laura and John Arnold Foundation.
One study of court data found that defendants held for the entire pretrial period were four times more likely to be sentenced to jail and three times more likely to be sentenced to prison; the jail sentences were three times longer and the prison sentences twice as long.
Another study — of 153,000 defendants in Kentucky — found a correlation between the length of pre-trial detention and the likelihood that defendants would re-offend.
The third study found that defendants who were released under pretrial supervision “were significantly more likely to appear for their day in court than those who were unsupervised.”
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Sunday, November 24, 2013

Brain Science Seeps Into Trials and Guilty Pleas

More and more lawyers are arguing that some defendants deserve special consideration because they have brains that are immature or impaired, says Nita Farahany, a professor of law and philosophy at Duke University, reported National Public Radio.

About 5 percent of murder trials now involve some neuroscience, Farahany says. "There's a steady increase of defendants seeking to introduce neuroscience to try to reduce the extent to which they're responsible or the extent to which they're punished for a crime," she says.

Farahany was a featured speaker at the Society for Neuroscience meeting in San Diego this week. Also featured were several brain scientists who are uncomfortable with the way courts are using brain research.

When lawyers turn to neuroscience, often what's at issue is a defendant's competency, Farahany told NPR. So a defense lawyer might argue that "you weren't competent to have pled guilty because of some sort of brain injury," she says, or that you weren't competent to have confessed to a police officer after being arrested.

The approach has been most successful with cases involving teenagers, Farahany says.

"It seems like judges are particularly enamored with the adolescent brain science," she says. "Large pieces of their opinions are dedicated to citing the neuroscientific studies, talking about brain development, and using that as a justification for treating juveniles differently."

In one recent drug possession case, Farahany told NPR, lawyers argued that a young man's statement to police couldn't be used even though he'd agreed to talk. His lawyers pointed to studies showing that adolescent brains are especially vulnerable to coercion.

"And it worked," Farahany says. "The prosecution had to basically start over in developing evidence against the juvenile because they couldn't use his own statements against him."

So judges and juries are being swayed by studies showing that adolescent brains don't function the same way adult brains do. One study like that was presented at the neuroscience meeting by Kristina Caudle, a neuroscientist at Weill Cornell Medical College. The study, funded by the National Institutes of Health, used a technology called functional MRI to look at how the brains of people from 6 to 29 reacted to a threat.

To read more Click Here

Saturday, November 23, 2013

The Cautionary Instruction: U.S. Supreme Court rejects NSA review

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 22, 2013

The US Supreme Court rejected without comment one of the first challenges to the National Security Agency's (NSA) broad spying activities. The petition made by the advocacy group Electronic Privacy Information Center (EPIC) was something of a longshot, but only because the secretive nature of the court overseeing the NSA required an unusual legal request.

EPIC bypassed the lower courts and went directly to the Supreme Court, reasoning that only the justices could tell the Foreign Intelligence Surveillance Court what to do.

The order being challenged forced Verizon to turn over all records of calls originating in the United States to the NSA. According to a copy of the order published by The Guardian, Verizon was required to produce on a daily basis all details relating to calls — termed "telephony metadata" — that Verizon created both for international calls originating within the US and all local calls contained within the country. The metadata in question is listed as including a variety of different types of data, including IMEI numbers, time and duration of the exchanges, and the two phone numbers placing and receiving the calls as well.

Verizon is not required to hand over data on calls that originate abroad, and recordings of the calls themselves are not included in the order. The document was signed by the judge Roger Vinson of the United States Foreign Intelligence Court on April 25th, and the order extended through July 19th.

The NSA has publicly acknowledged it received secret court approval to collect vast amounts of so-called metadata from Verizon and leading Internet companies, including Microsoft, Apple, Google, Yahoo and Facebook.

The information includes the numbers, time, and length of nearly every phone call to and from the United States in the past five years, but not the location or actual monitoring of the conversations themselves. To do so would require a separate, specifically targeted search warrant.

The revelations on bulk data collection triggered new debate about national security and privacy interests, and about the secretive legal process that sets in motion the government surveillance.

The challenge was the first case to reach the court since documents leaked by Edward Snowden disclosed the broad outlines of the NSA's spying programs. Snowden, a former NSA contractor, later identified himself as the leaker and is currently in Russia on the run from the U.S. government. He faces a series of criminal charges for disclosing the full scope of domestic data-gathering activities.

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Friday, November 22, 2013

GateHouse: JFK: What could have been

Matthew T. Mangino 
GateHouse News Service 
November 22, 2013 
Today marks the 50th anniversary of the most infamous crime of the 20th century.
The murder of President John F. Kennedy continues to fascinate and disturb people around the globe. The killing has been investigated and analyzed, reviewed and written about, videotaped and dramatized, and is unequivocally the most talked about criminal event in the last 100 years.
Although Kennedy’s death is seared into the American psyche, there is so much more to the man than his demise. The image of Jaqueline Kennedy crawling across the trunk of the presidential limousine as a Secret Service agent jumped on board remains as vivid today as it was 50 years ago.
Yet Kennedy’s manner, his swagger his confidence in himself and his country should not be forgotten, it should be celebrated and revered.
Kennedy’s murder remains unsolved. The Warren Commission concluded a lone assassin was responsible, the U.S. House Select Committee on Assassination concluded it was “probably” a conspiracy.
America prides itself on a system of justice that provides a series of protections for those accused of a crime.
Those arrested are presumed innocent until proven guilty. A prosecutor — whether from the state of Texas or the federal government — must prove an accused guilty beyond a reasonable doubt.
The man accused of killing Kennedy never had his day in court. He was murdered only days after Kennedy.
All we know for sure about Nov. 22, 1963, is that JFK was fatally wounded while sitting in an open car traveling slowly through Dealey Plaza in Dallas. John Connelly, the governor of Texas, was wounded as well. Lee Harvey Oswald was arrested that day and charged with Kennedy’s murder and the murder of a Dallas police officer.
Oswald never had the chance to confront the witnesses against him; he never had a chance to challenge the state’s case. Although Oswald would have had no obligation to testify or present evidence in his own defense, America never had the chance to hear Oswald’s version of the events of Nov. 22.
Today is the somber anniversary of JFK’s death — but it can be more, a celebration of an extraordinary life.
For Americans, and admirers around the world, JFK is forever young and vibrant. His charisma was second only to his intellect. He was a leader who inspired a generation and continues to inspire today.
His heroism in war, his audacity to challenge Americans to do for their country, his tenacity to stand up to the Soviets during the successful resolution of the Cuban Missile Crisis and his vision to launch us on a successful race to the moon — are all testaments to his leadership.
Today, and the days leading up to today have been filled with theories of conspiracy and treachery. The news has been filled with stories of investigations gone awry and a government too inept to solve the murder of its very leader.  
Today is also about what could have been. Had Kennedy survived the remainder of his term and maybe won a second term, what would America be like today?
We can only imagine an America in the 1960s without Vietnam. Where would we be today if a young and vibrant president could have fully embraced the civil rights movement? How about a visionary peace movement in place of raucous anti-war protests? What if Watergate was just the name of another Washington, D.C., office building?
Kennedy modeled a pragmatic approach to problem solving instead of partisan back-biting that we’ve come to know as leadership. JFK once said, “A nation reveals itself not only by the men it produces but also by the men it honors, the men it remembers.”
Today, our nation can reveal a lot about itself. If, instead of wallowing in the unresolved murder of a president, it celebrated a life well lived and country that glowed in the light of that well lived life.
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, November 21, 2013

Missouri executes racist serial killer

The 35th Execution of 2013

White supremacist serial killer Joseph Paul Franklin was executed on November 20, 2013 after the U.S. Supreme Court rejected his final requests for a stay, reported CNN.

The execution, which had been scheduled for shortly after midnight Wednesday, was delayed for hours because of court appeals. Franklin was administered a lethal injection at 6:07 a.m. He died ten minutes later.

Franklin refused his final meal and gave no final statement.

He was on death row for the 1977 murder of Gerald Gordon outside a synagogue in St. Louis. He was blamed for 22 killings between 1977 and 1980 in a bid to start a race war.

Missouri Gov. Jay Nixon denied clemency for Franklin on Monday, saying he had committed "merciless acts of violence, fueled by hate."

In addition to the killings, Franklin admitted to the attempted assassinations of Hustler magazine publisher Larry Flynt in 1978 and civil rights leader Vernon Jordan in 1980. Flynt, who was paralyzed by Franklin's bullet, has called for clemency for Franklin, saying "the government has no business at all being in the business of killing people."

One of Franklin's final legal maneuvers focused on the drug used for the lethal injection, pentobarbital. His attorneys argued that the injection would violate the Constitution's ban on cruel and unusual punishment.

On Tuesday, U.S. District Judge Nanette Laughrey granted a stay of execution, finding Franklin's lawyers showed the use of pentobarbital carried "a high risk of contamination and prolonged, unnecessary pain beyond that which is required to achieve death."

The U.S. Supreme Court denied Franklin's requests to step in and halt the execution.
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Wednesday, November 20, 2013

Funding cuts wreaking havoc on policing, courts and treatment

An annual survey of state and local criminal justice practitioners conducted by the Vera Institute of Justice (Vera) and National Criminal Justice Association (NCJA) is helping to gain insight into the impact of budget cuts.

The survey received more than 1,200 responses from all sectors of the criminal justice community, including law enforcement, the judicial system, corrections and community corrections, juvenile justice and prevention programs, victim assistance programs, and social services.

It found that more than 75 percent of respondents reported funding cuts that led to workforce reductions, salary freezes, and drastic curtailing of the services they provide. For example, of the 346 law enforcement respondents, 75 percent saw a cut in funding between 1 and 25 percent. Because of these cuts, 64 percent reported reduction in staffing, 63 percent reported a reduction in services provided, and 58 percent reported pay freezes.

Since 2010, the Byrne Justice Assistance Grant program has been cut by 34 percent, the Community Oriented Policing Services (COPS) Hiring grants by 44 percent, in-prison drug treatment supported by the Residential Substance Abuse Treatment for State Prisoners (RSAT) program by 67 percent, the National Instant Criminal Background Check System (NICS) by 75 percent, and juvenile delinquency prevention initiatives under the Office of Juvenile Justice and Delinquency Prevention by more than 50 percent. With these cuts, these programs are at historically low levels of funding.

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Tuesday, November 19, 2013

Judge stops execution of serial killer

A federal judge in Missouri has halted the execution of racist serial killer Joseph Paul Franklin, declaring that a lawsuit over which drug the state uses to kill inmates must first be resolved, reported the USA Today.

Franklin, 63, was scheduled to die at 12:01 a.m. CT (1:01 a.m. ET) for the 1977 sniper murder of Gerald Gordon outside a synagogue near St. Louis. He has admitted to killing as many as 20 people as well as shooting civil rights activist Vernon Jordan and Hustler Magazine publisher Larry Flynt.

He would have been the first prisoner to be executed with pentobarbital, which is used to euthanize animals.

In her 14-page ruling late Tuesday afternoon, U.S. District Court Judge Nanette Laughrey criticized the timing of the state's changes to its lethal-injection procedures, stating that "details of the execution protocol have been illusive at best."

The Missouri Department of Corrections had planned to be the first state to use propofol, a common anesthetic. But after the medical profession objected, Gov. Jay Nixon halted the execution of another inmate last month and directed the department to use another drug. Corrections officials settled on pentobarbital, made by a compounding pharmacy, but released few details, citing privacy laws protecting execution teams.

"Franklin has been afforded no time to research the risk of pain associated with the Department's new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital," she wrote.

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Court strikes down lifetime registration for juvenile sex offenders

A York County, Pennsylvania judge has ruled that a law that imposes lifetime registration requirements on juvenile sex offenders is unconstitutional, reported the Harrisburg Patriot News.

Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.

Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders.

SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.

The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.

Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.

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Monday, November 18, 2013

Former Texas prosecutor still in hot water

Former Williamson County district judge Ken Anderson has been sentenced to jail, forced to resign and give up his law license for withholding exculpatory evidence as a prosecutor that resulted in Michael Morton spending 25 years in prison for a crime he did not commit.

Anderson's problems continue. Innocence Project director Barry Scheck told reporters that the current Williamson County D.A., Jana Duty, had agreed to allow an independent review of every single case that Anderson had ever prosecuted, reported the Texas Monthly.

The audit will hopefully answer the question that many people have wondered since Morton’s exoneration in 2011. Was Anderson’s misconduct in the Morton case the exception or the rule?

Such an audit would be unusual for any district attorney’s office, but for Williamson County, it’s nothing less than extraordinary. During the more than quarter-century in which Anderson and his protégé, John Bradley, ran the office, it was one of the most secretive and adversarial in the state, reported the Texas Monthly.

Now Duty will be allowing some sunlight to shine in, opening Anderson’s old files up to scrutiny.
Patricia Cummings—who served on Morton’s legal team in recent years, and who previously worked under Anderson as an assistant prosecutor—is now working with the Williamson County DA’s office to identify which cases require further examination.

“We’re trying to determine how many cases Anderson took to trial in which there was a conviction,” the Innocence Project’s senior staff attorney, Nina Morrison, told the Texas Monthly. “Depending on that number, we may look at all of those cases, or we may start with just the ones in which someone is still in prison.”

After the scope of the audit has been defined, Morrison said, the goal is to launch an independent examination of flagged cases at no cost to taxpayers. “We’re in discussions with a major international law firm about conducting the review pro bono,” she told the Texas Monthly.

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Saturday, November 16, 2013

GateHouse: The outlier, a prosecutor jailed for misconduct

Matthew T. Mangino
GateHouse News Service
November 15, 2013

Last week, a Texas judge was forced to resign, give up his law license and spend 10 days in jail as part of a plea agreement.

Nearly 30 years prior to his plea, disgraced former district Judge Ken Anderson was a prosecutor in Williamson County, Texas. Back in 1986, Anderson led the prosecution of Michael Morton for the murder of his wife, Christine.

A detective with the Williamson County sheriff’s department had investigated the murder and prepared a report suggesting that Morton was not responsible for his wife’s death. Anderson went forward with the prosecution in spite of the report.

A prosecutor can disagree with the conclusions of an investigator — it happens all the time. A prosecutor cannot, however, withhold favorable evidence from a defendant.  A 1963 U.S. Supreme Court decision made it clear that Anderson was required to turn over the detective’s report to Morton’s attorneys. He didn’t and then lied to the court about the report’s existence.

Morton was convicted and spent 25 years in prison until a Texas judge took the extraordinary step of finding Morton factually innocent — releasing him from prison and dismissing the charges.

The court then turned its attention to Anderson. The Texas Supreme Court convened a special court of inquiry to look into prosecutorial misconduct. The court found Anderson guilty of contempt of court, tampering with government records and tampering with or fabricating evidence.

Anderson will spend one day in jail for every two and a half years Morton spent in prison. Where is the outrage about Anderson’s lenient treatment? Imagine if Ariel Castro had been sentenced to one day for every year his three female victims were imprisoned in his Cleveland home.

Lawmakers were clamoring for Casto’s execution — and Anderson, a trusted public servant, will spend a week and a half in jail for intentionally robbing a man of 25 years of freedom.

Claims of prosecutorial misconduct are rare and difficult to prove. Even if proven, prosecutors may remain insulated from liability. Absolute immunity protects prosecutors from liability whenever they are performing the traditional functions of a prosecutor or are engaged in activity intimately associated with the regular work of a prosecutor.

Anderson is not the first prosecutor to go to jail for withholding favorable information. In 2006, Mike Nifong the district attorney in Durham County, N.C., was forced to resign, was disbarred and sentenced to one day in jail for failing to provide DNA evidence to the lawyers representing members of the Duke University lacrosse team accused of sexual assault.

Nifong and Anderson are aberrations. John Thompson’s case is more the norm. Last year, the U.S. Supreme Court reviewed the conviction, exoneration and civil award to Thompson, a Louisiana man wrongfully convicted who spent 18 years on death row.

A civil jury found that New Orleans District Attorney Harry Connick Sr. failed to train his prosecutors on their obligations to turn over documents and awarded Thompson $14 million.
In a 5-4 opinion written by Justice Clarence Thomas, the U.S. Supreme Court reversed the verdict, finding that a single violation did not establish a pattern of misconduct.

The U.S Supreme Court has found that absolute immunity may "leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty."

Regardless, absolute immunity is vital, “harassment by unfounded litigation would cause a deflection of the prosecutor’s energies … (or) shade his decisions instead of exercising the independence of judgment.”

More than a half century ago, Judge Learned Hand observed, “better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."

Obviously, Judge Hand never met Michael Morton, John Thompson or the falsely accused members of the Duke lacrosse team.

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, November 15, 2013

The Cautionary Instruction: Racially-motivated serial killer heads to the gallows

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 15, 2013

Joseph Paul Franklin is scheduled for execution next Wednesday in Missouri. Franklin is a rare racially-motivated serial killer.

Franklin drifted city-to-city and state-to-state in search of new hunting grounds in a quest, as he put it, to "cleanse the world.”

Franklin’s murderous acts can be traced back to his indoctrination by extremist groups he joined—the Ku Klux Klan (KKK), the American Nazi Party and the National States Rights Party (NSRP). Uneducated and shiftless young men like Franklin were targeted by the KKK, the Nazi Party and the NSRP in their recruitment of members.

In total, Franklin has been linked to roughly 20 killings and numerous other crimes. Beginning in 1977 and running through 1980, Franklin has been implicated in, or convicted of, two killings in Madison, WI; and a killing, in St. Louis. He is also responsible for a couple killings each in Chattanooga, TN, Johnstown, PA, Cincinnati, Salt Lake City and Oklahoma City; single killings in Jackson, MI, Tomah, WI and Falls Church, VA, as well as multiple killings in Indianapolis.

He has confessed to the shooting of civil rights leader Vernon Jordan and Hustler magazine's Larry Flynt. He also admitted guilt in a 1980 murder of two hitchhikers in West Virginia, a crime for which another man had been convicted. In addition to his death sentence in Missouri, Franklin has been sentenced to life in prison in multiple states.

Franklin sought out Flynt after looking through Hustler magazine. "I see some broad having sex with a black man," he said. "I got so outraged."

He flipped through the magazine and discovered Flynt was the publisher. "I thought, 'I'm going to kill that guy,'" Franklin said. "I started stalking him."

Flynt was paralyzed as a result of Franklin’s attack. Yet, Flynt is rallying support to save Franklin’s life. He recently filed suit in federal court seeking to view sealed documents that might identify an anesthesiologist on Franklin’s execution team.

Flynt’s motion alleges that the Missouri Department of Corrections says its doctor is certified by the American Board of Anesthesiology, that organization’s rules say a member “should not participate in an execution.” It is a back door effort to stop Franklin’s execution.

In a recent article in The Hollywood Reporter, Flynt said, “As I see it, the sole motivating factor behind the death penalty is vengeance, not justice, and I firmly believe that a government that forbids killing among its citizens should not be in the business of killing people itself.”

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Thursday, November 14, 2013

Ohio postpones execution to determine organ transplant viability

Ohio Gov. John Kasich postponed the November 14, 2013 execution of Ronald Phillips to determined if the inmate can donate his "non-vital" organs, reported The Columbus Dispatch and UPI.

Kasich said he wanted to give medical experts time to "assess whether or not Phillips' non-vital organs or tissues can be donated to his mother or possibly others." The execution is delayed until July 2, 2014.

"Ronald Phillips committed a heinous crime for which he will face the death penalty. I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen," Kasich said. The postponement came the day before Phillips was scheduled to be executed by lethal injection at the Southern Ohio Correctional Facility near Lucasville.

According to the Death Penalty Information Center this is the first time in the United States an execution has been stopped to permit an inmate's organs to be harvested, reported The Dispatch. A  Delaware inmate who didn't have an imminent death date was allowed to donate his organs.

Phillips, 40, faces the death penalty for the 1993 beating, rape and murder of Sheila Marie Evans, the 3-year-old daughter of his then-girlfriend. Kasich said if Phillips is found to be a "viable donor" to his mother or possibly others awaiting transplants of non-vital organs, such as kidneys, the procedures would be performed and then he would be returned to death row to await his execution in July.

Phillips, who had no legal appeals left, had been moved from the Chillicothe Correctional Institution to the Lucasville prison Wednesday morning in preparation for his execution. The newspaper said he had ordered, but didn't eat, what was to have been his last meal -- a pizza with mushrooms, onions and double cheese, spaghetti, corn chips, Dr. Pepper, rocky road ice cream and Oreo cheese cake.

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Texas executes another inmate

The 34th Execution of 2013

Texas executed Jamie McCoskey on November 12, 2013, reported Reuters. He was convicted of kidnapping a couple in 1991 in Houston, raping a 19-year-old woman and stabbing her fiancé, Michael Dwyer, 20, to death.

The woman, who authorities did not identify because she was a rape victim, survived the assault and identified McCoskey in a police line-up.

McCoskey was executed by lethal injection at the Texas state prison in Huntsville. McCoskey was pronounced dead at 6:44 p.m. according to a spokesman from the Texas Department of Criminal Justice.

The department said that in his last statement, McCoskey said, "If I had it to do again I would change Dwyer's parents suffering because I know they are. I know that is not going to eliminate the pain because I have a child."

Texas has executed 507 prisoners since the reinstatement of capital punishment by the U.S. Supreme Court in 1976, the most of any U.S. state

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Florida executes killer of aspiring artist

The 33rd Execution of 2013

Darius Kimbrough was pronounced dead at the state prison in Starke, Florida, on November 12, 2013at 6:18 p.m., 18 minutes after the lethal injection procedure got underway, reported Reuters.

The execution of Kimbrough, which followed the rejection of his final appeal by the U.S. Supreme Court, was the 33rd in the United States this year.

Kimbrough, 40, was sentenced to die for killing Denise Collins, an aspiring artist, after he broke into her Orlando, Florida, apartment and sexually assaulted her. She was found barely alive on her bathroom floor in October 1991. Collins died days later.

Kimbrough made a handwritten plea to the Florida Supreme Court questioning the use of DNA evidence in his conviction and a new sedative being used in executions in the state. The high court last week rejected his appeal as did the U.S. Supreme Court.

His execution was the second in the state using midazolam as the first of three drugs administered in lethal injections.

The sedative, known commercially as Versed and commonly used as sedation for minor procedures, was adopted by Florida officials after the state reported dwindling supplies of pentobarbital, a barbiturate. The shortage was due to a decision by the drug's manufacturer to clamp down on sales for its use in executions, prison officials said.

After the sedative is administered, the prisoner receives a second drug that acts as a paralytic agent and the third drug stops the heart.

Last month, seven Florida death row inmates sued the state, arguing midazolam was not an anesthetic. But a judge dismissed their legal challenge, which claimed that the drug left inmates aware of their surroundings but unable to speak or move and in extreme pain in their final minutes.

To read more Click Here

Wednesday, November 13, 2013

PA Supreme Court says yes to third degree murder conspiracy

The Pennsylvania Supreme Court has determined that conspiracy to commit third-degree murder is a cognizable offense, reported The Legal Intelligencer.

A divided court ruled 4-2 on Oct. 30 to reverse the Superior Court's finding in Commonwealth v. Fisher that because third-degree murder indicates an absence of intent to commit murder, conspiracy to commit third-degree murder is an illogical, noncognizable charge.

Writing the majority opinion, Justice J. Michael Eakin said the Superior Court's assertion was premised on a misreading of the statute. According to Eakin, third-degree murder is not simply unintentional killing; it is a malicious, intentional act that can result in death, and therefore may be the object of a conspiracy. "True, the intent to kill is a defined element of first-degree murder—this does not mean an element of third-degree murder is the polar opposite of intent to kill, such that the commonwealth must prove a lack of intent to kill to convict of third-degree murder," he said. "Evidence of intent to kill is simply irrelevant to third-degree murder.

The elements of third-degree murder absolutely include an intentional act, but not an act defined by the statute as intentional murder. The act for third-degree is still a purposeful one, committed with malice, which results in death—clearly, one can conspire to such an intentional act."

Chief Justice Ronald D. Castille and Justices Max Baer and Seamus P. McCaffery joined the majority, with Justice Debra M. Todd filing a dissenting opinion and Justice Thomas G. Saylor joining.

To read more Click Here

Tuesday, November 12, 2013

Dealing With the Problem of Parental Incarceration

Matthew T. Mangino
The Pennsylvania Law Weekly
November 12, 2013

Children with incarcerated parents are a growing problem in Pennsylvania and across the country.

The number of inmates who are parents has increased by 79 percent since 1991. 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.

According to sociologist Bruce Western, it is estimated that about 2.7 million children across the country share the anxiety and uneasiness of having a parent locked up. Western estimates that one of every 28 American children—3.6 percent—has an incarcerated parent. Just 25 years ago, the number was one of every 125.

Black and Hispanic children are more likely than white children to have a parent in prison. In the United States, 6.7 percent of black children, 2.4 percent of Hispanic children and 0.9 percent of white children have a parent in prison, reported the Bureau of Justice Statistics.

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 had been their children's primary caregiver prior to being incarcerated.

In "The Adoptions and Safe Families Act: Barrier to Reunification Between Children and Incarcerated Mothers," Kristen S. Wallace made some startling findings when it came to incarcerated mothers. Seventy-seven percent of incarcerated mothers in state prison lived with their children prior to incarceration and 52 percent of them were single mothers.

Although child service agencies will say that reunification is the goal for the child and incarcerated parent, 62 percent of parents in state prisons and 84 percent of parents in federal prisons are imprisoned at least 100 miles away from their homes. The average sentence of an incarcerated parent is 80 to 100 months. Wallace's findings demonstrate the sad and likely failure of reunification plans.

The problem is so pervasive that a cultural icon has taken on the issue as a significant social problem facing America's youth. 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. Millions of kids like Alex are hurt by the absence of a parent. Those same children are horrified by the prospect that their relationship with their incarcerated parent can be terminated legally and unequivocally.

In Pennsylvania, the state House of Representatives passed a resolution in 2009 that required the Joint State Government Commission to complete a study on the effects of parental incarceration on children. The final report was issued in December 2011.

Parental incarceration can create a wide range of problems for children. Those problems include economic distress, anger, depression, shame and guilt. Not surprisingly, children of incarcerated parents often suffer in the classroom as well.

The most profound effect, according to the report, 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 the commission focused on was the federal Adoption and Safe Families Act. 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 federal 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.

The commission recommended that Pennsylvania adopt legislation to ease the burden of the 15-month timeline in cases when it is in the best interest of the child, and also to emphasize that incarceration alone is not a basis to terminate parental rights.

As a result, state Sen. Stewart Greenleaf introduced Senate Bill 112. The bill seeks to incorporate the findings of the commission into existing law or new legislative provisions.

For instance, according to Greenleaf's legislative memorandum, the Domestic Relations Code, Section 23 Pa.C.S. §2511, lists the grounds for involuntary termination of parental rights. The advisory committee recommended, and SB 112 includes, a sentence that provides, "The rights of a parent shall not be terminated solely on the basis of parental incarceration."

The Judicial Code, Section 42 Pa.C.S. §6351, provides what a judge must determine at a permanency hearing. SB 112 includes language giving the court the authority, when determining whether the rights of an incarcerated parent should be terminated, to consider if the parent is making an effort to comply with the family service plan requirements and otherwise maintain a meaningful role in the child's life during the time of incarceration.

The legislation was referred to the Senate Judiciary Committee on Jan. 9 with no further action.
SB 112 is a departure from the current case law in Pennsylvania. Under existing Pennsylvania law, incarceration has never been accepted as the sole basis to terminate parental rights. However, in In re Adoption of S.P., 476 WAL 2011, a termination was affirmed in spite of the father's wishes to maintain a relationship with the child and his pending parole.

Some states have taken it a step further. In 2010, New York passed the ASFA Expanded Discretion Bill. The new law provides discretion to child service agencies to delay termination proceedings if parental incarceration is a factor. This spring, Washington state passed a similar law providing the courts with discretion if a child's continued stay in foster care is a result of a parent's incarceration.

Pennsylvania and other states across the country 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 & George. He is a former district attorney for Lawrence County and a former member of the Pennsylvania Board of Probation and Parole. Contact him at and follow him on Twitter @MatthewTMangino.

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Monday, November 11, 2013

Prison overcrowding may persist even with changes

Overcrowding in U.S. federal prisons is so severe that the problem could go on for years a report from the Urban Institute found recently, reported Reuters.

The Urban Institute, a research group with roots in President Lyndon Johnson's Great Society anti-poverty program of the 1960s, shows how difficult it would be to bring the prison population in line with capacity.

Even if Congress were to cut mandatory minimum sentences for drug crimes by half, an idea with dubious political prospects, federal prisons would still be 20 percent above capacity in 10 years, the report said. They would be 55 percent above capacity if policies went unchanged, it said.

"As much as there are many good policy ideas out there, it's going to take several of them to even get to the point where prisons are not overcrowded," Nancy La Vigne, director of the Urban Institute's Justice Policy Center, told Reuters.

The report also details the potential budget savings from a menu of changes under discussion in Congress.

If lawmakers were to apply retroactively new prison terms that they approved in 2010 for crack cocaine-related crimes, they would cut prison spending by $229 million over 10 years and free up 22,000 "bed-years." One person released 12 months early frees up one bed-year.

To read more Click Here

Sunday, November 10, 2013

Watch my interview on WKBN-TV

Brine is the toxic waste water by-product of fracking. Ohio is a popular brine dumping ground for out-of-state companies.

27 First News Legal Contributor and attorney Matt Mangino says Pennsylvania and West Virginia have tougher dumping laws. In fact, there are only five disposal sites in the Keystone state. He says not only is Ohio law friendlier to dispose of shale waste water, but the state is also making big money.

"Out of state customers pay 20 cents a barrel, so in 2012 I think Ohio made $2 million in waste water disposal; $1.5 million was from out of state companies,” said Mangino.

Click Here to watch the interview

Saturday, November 9, 2013

GateHouse: The perils of crime forecasting

Matthew T. Mangino
GateHouse News Service
November 8, 2013
Imagine a crime-fighting model that rushes police not to where a crime has just been committed, but to where a crime is going to be committed.
Does that sound like the plot of a futuristic sci-fi movie?  The concept is not only possible — it is a reality in a number of cities across the country. 
The idea of forecasting crime, in much the same way meteorologists forecast weather, has turned the law enforcement community on its head. The old model — dial 911, police dispatched, criminal gone — has been discarded for sophisticated computer generated models that predict were crime is going to occur.
“We’re entering a new era of police work where advances in technology are providing us with an additional tool to use in our crime prevention efforts,” Fort Lauderdale (Fla.) Police Chief Frank Adderley told Fast Company Magazine. “Integrating advanced data analysis into our operational strategies will help us maximize resources and stay one step ahead of the criminals.”
Jeremy Heffner of Azavea, a firm specializing in geographic information system mapping, told Temple University’s Philadelphia Neighborhoods, “You can kind of think of crime as a disease. If a crime happens, we can see how it affects the likelihood that another incident is going to happen within a certain area in a certain amount of time after that.”
Heffner suggests that if a residential burglary occurs within a specific neighborhood, the chances that another will occur in that neighborhood increases as a result of the first crime, much like a contained outbreak of disease in a given area.
Jeffrey Brantingham, co-founder of the predictive policing company PredPol, explained his company’s software to Government Technology magazine. PredPol takes information about crime being committed — when and where it happens — and applies mathematical algorithms, and uses it as the basis to forecast where crime will happen in the future.
The concept grew out of using crime mapping and hot spots to track where crime is occurring. Instead of push pins placed on a precinct cork board, a computer churns out data driven trends about a street, neighborhood or whole community.
Forecasting models are dynamic; they can change. As data is analyzed the forecast is updated in real time.  This allows police officers to adapt to the contours and patterns of the model and effectively utilize crime fighting resources.
Brantingham is quick to point out that while the forecasting models are about predicting crime, they are not a profiling tool to identify who is committing crimes.
“We’re actually not saying anything about who, we are saying something about where and when crime is most likely to occur regardless of who may or may not be prone to commit those crimes,” he told Government Technology.
And this is where it gets tricky. The United States Constitution protects people from unlawful searches and seizures. The Fourth Amendment provides that any search, arrest or detention will be based on reasonable suspicion or probable cause.
Can a computer loaded with data provide the requisite level of suspicion? Does American jurisprudence permit the sacrifice of the rights of an occasional outlier for the sake of the greater good? That is a fundamental question of justice.  Eighteenth-century English jurist William Blackstone said, "It is better that 10 guilty persons escape than that one innocent suffer.”
Andrew Guthrie Ferguson, a law professor at the University of the District of Columbia who has focused his research on crime forecasting software told National Public Radio that the departments using crime forecasting have told police not to use it as a basis for stops.
"The idea that you wouldn't use something that is actually part of the officer's suspicion and not put that in — [that] may come to a head when that officer is testifying," Ferguson added.
To what extent will liberty suffer to protect the public from crime or the potential of crime?
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, November 8, 2013

The Cautionary Instruction: Sixth Amendment not a guarantee of perfect counsel

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 8, 2013

This week, the U.S. Supreme Court ruled in Burt v. Titlow that the Sixth Circuit Court of Appeals did not apply the correct standard of review when it decided that advice given Vonlee Titlow about her plea bargain was inadequate.

Titlow had been living with her uncle Donald Rogers and his wife, Billie Rogers, in Troy, MI, at the time of his death in August 2000.

Titlow's boyfriend told police that Titlow and Billie had discovered Donald passed out, and then tried to pour vodka down his throat while holding his nose shut. Titlow allegedly stopped the vodka plan and left the room, at which point Billie apparently smothered Donald with the pillow.

The boyfriend had Titlow recount these details sometime later while wearing a wire.

As the sole beneficiary of Donald's estate, Billie bought new cars for herself and Titlow, wrote Titlow a check for $70,260 and gave Titlow gambling money that Billie deducted from a ledger with $100,000 written on it.

Three days before Billie’s trial, Titlow hired a new attorney who demanded a better plea offer. The state refused and without Titlow's testimony Billie was acquitted. Titlow was later convicted of second degree murder.

Titlow raised an ineffective assistance of counsel claim asserting she was not properly advised during the plea bargain process. The Sixth Circuit set aside Titlow's conviction and ordered prosecutors to re-offer the plea deal in the case, despite the fact that the agreement required Titlow to testify against Billie, who had subsequently died.

Justice Samuel Alito wrote, "When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a ‘doubly deferential’ standard of review that gives both the state court and the defense attorney the benefit of the doubt."

"He [Titlow’s new counsel] may well have violated the rules of professional conduct … and he waited weeks before consulting respondent's first lawyer about the case," wrote Alito. “But the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance, and we have held that a lawyer's violation of ethical norms does not make the lawyer per se ineffective."

Although the Court was bothered by the conduct of Titlow's attorney, the Court believed she was "adequately advised before deciding to withdraw the guilty plea."

The U.S. Supreme Court ruled in 2012 that plea bargaining is now governed by the Sixth Amendment right to effective assistance of counsel.

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, November 7, 2013

NYC 'stop and frisk' monitoring on hold

Southern District Judge Shira Scheindlin has been ordered off the stop-and-frisk cases by the U.S. Court of Appeals for the Second Circuit, according to the New York Law Journal. The circuit said the judge had given the "appearance of partiality" in her handling of Floyd v. City of New York.

The Court stayed, pending appeal, Scheindlin's appointment of a monitor to reform New York City Police Department stop-and-frisk policies and practices she had held unconstitutional.

The circuit also stayed Scheindlin's opinion and order issued on Jan. 8, 2013 in the related case of Ligon v. City of New York, 13-3123, where she issued a preliminary injunction ordering police to cease making stops for trespass without reasonable suspicion outside of privately-owned buildings in the Bronx.

Finally, the circuit stayed the remedies opinion she issued on Aug. 12 that applied to both Floyd and Ligon. In addition to the appointment of a monitor, Scheindlin directed several other measures be taken, including a one-year pilot program in which police in one precinct in each of the city's five boroughs wear body cameras to record stop encounters for one year. 

To read more Click Here

Wednesday, November 6, 2013

Supreme Court establishes standard for plea bargain advice

Yesterday, the U.S. Supreme Court ruled in Burt v. Titlow that the Sixth Circuit Court of Appeals did not apply the correct standard of review when it decided that Vonlee Titlow's counsel was ineffective.

Titlow was arrested along with another woman for the murder of the woman's husband. Her attorney had worked out a plea to manslaughter if Titlow testified against the wife.

Three days before wife's trial Titlow hired a new attorney who demands a better plea offers.  The state refused and without Titlow's testimony the wife was acquitted.  Titlow was later convicted of second degree murder.

Titlow raised the ineffective assistance of counsel claim asserting she was not properly advised during the plea bargain process.  The Sixth Circuit agreed.  The U.S. Supreme Court reversed. 

Justice Samuel Alito wrote, "When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a ‘doubly deferential’ standard of review that gives both the state court and the defense attorney the benefit of the doubt."

Although the Court was bothered by the conduct of Titlow's attorney, the Court believed she was "adequately advised before deciding to withdraw the guilty plea."

The U.S. Supreme Court ruled in 2012 that plea bargaining is now governed by the Sixth Amendment right to effective assistance of counsel.

For full opinion Click Here

Tuesday, November 5, 2013

Florida to reopen prisons to deal with overcrowding

A year after Florida closed several prisons to save money, the state says it must reopen some of them because of projections of a growing inmate population, reported the Tampa Bay Times.

The Department of Corrections wants the Legislature to appropriate $59 million to open nine shuttered facilities next year from Miami to the Panhandle, including two prisons, five work camps and two re-entry centers. The prisons, in Raiford and Polk City, were closed in July 2012 and were touted by Gov. Rick Scott as good-news, cost-cutting steps in the budget.

The new request is based on a July forecast from the state Criminal Justice Estimating Conference showing that even as the crime rate continues to drop, new admissions to the prison system are rising. They are projected to increase by 2.7 percent next year and 1.4 percent the following year, requiring more than 1,000 new prison beds.

The current inmate population is about 101,000.

Scott, who's seeking re-election in 2014, recently asked state agencies to cut spending by $100 million, but the prison system alone wants $124 million more next year, including money for more officers, new buses and vans, the food service system and an electronic timekeeping system

The sudden shift is reviving the debate over whether Florida locks up too many nonviolent drug offenders who should get treatment, not just punishment. Florida has the nation's third-largest prison system and spends about $18,000 a year on average to house each of its inmates. Nearly three of every 10 inmates are back behind bars within three years.

They're not getting treatment. They're being housed, and I don't know how smart that is," said Sen. Rob Bradley, R-Fleming Island, at a recent hearing of the committee he chairs, which oversees the prison system's $2.4 billion budget.

Scott must decide whether to include the request to reopen the prisons and work camps in the election-year budget he'll send to the Legislature in February.

To read more Click Here

Monday, November 4, 2013

Political posturing will not achieve justice, accountability

Matthew T. Mangino
The Youngstown Vindicator
November 3, 2013

Executions in Ohio have become a regular occurrence. State Rep. John Becker would like to see those numbers increase. He has introduced House Bill 244, legislation that provides prosecutors with the option of pursuing the death penalty for some sex-related crimes.

The crimes in Becker’s legislation include aggravated rape, aggravated rape of a child, aggravated sexual battery, aggravated sexual battery of a child, and aggravated unlawful sexual conduct with a minor.

“In light of the Ariel Castro kidnapping case ... I wanted to give prosecutors the option to pursue the death penalty for repeat sexual offenders,” Becker said in a legislative press release.

“Prosecutors would be able to use the death penalty threat as a tool for plea-bargain negotiations,” Becker added. “Nobody in this country has ever been executed for a sex crime, but that could change.”

Becker is wrong at every turn — yet his knee-jerk reaction to the incomprehensible crimes committed by Castro has many supporters. Even The Vindicator wrote last month, “Becker’s action to bring the issue of appropriate punishment for such disgusting crimes to the halls of the General Assembly deserves commendation. Many, if not most, in Ohio would sympathize with his reasoning that violent child-sex offenders deserve execution.”

It is understandable why the death penalty for sex offenders might be resurrected in Ohio. Since 2010, Ohio has executed more inmates than traditional “law and order” states like Mississippi, Alabama, Florida and Oklahoma. Only Texas has more executions than Ohio.

Why are Becker’s proposals misguided?

First, Ariel Castro would not have been eligible for the death penalty under Becker’s proposal because he did not have a prior sex-related conviction.

Secondly, it is unethical for a prosecutor to charge a defendant with a crime for the sole purpose of using the charge as a tool in plea bargaining. Yet, that is exactly what the sponsor of the bill is proposing.

Finally, to suggest that no one in the country has ever been executed for a sex crime is preposterous. Many African-American men were sentenced to death and duly executed across the South for rape. A significant majority of those rapes were perpetrated against white women, and the verdicts were rendered by all-white juries.

More importantly, the law is pure politics with little chance of being passed and less chance of being carried out — a waste of time and government resources.

Rape as an executable offense was banned 36 years ago. In Coker v. Georgia, the Supreme Court barred the use of the death penalty as punishment for the rape of an adult woman. Some states, like Louisiana, believed that “children are a class that need special protection.” Therefore rape of a child is unique in terms of the harm it inflicts upon the victim and society and deserving of the death penalty.

In 2008, in Kennedy v. Louisiana, the Supreme Court addressed that issue as well. In a 5-4 opinion, the Supreme Court ruled that the Eighth Amendment bars the imposition of the death penalty for the rape of a child. In assessing the “evolving standards of decency that mark the progress of a maturing society,” the court rejected Louisiana’s argument that society’s standards are evolving to embrace capital punishment for the crime of child rape.

At the time, only six states had passed laws penalizing child rape with the death penalty.

There is no question that short of murder, child rape is the most reprehensible crime. However, pursuing the death penalty for child rape is not only an impossibility — it is based on flawed thinking. If the penalty for child rape was the same for murder of a child what would be the incentive for an offender to let his victim live? A child molester could turn into a killer with nothing to lose.

No one quarrels with locking away arepeat child rapist for life. Use the criminal courts and civil restrictions to ensure that the offender never hurts another child. Few would oppose the vigorous pursuit of those ends.

Puff-chested posturing and bravado may boost a politician’s poll numbers, but achieves neither justice nor accountability.

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)

Sunday, November 3, 2013

GateHouse: Supreme Court takes up some unfinished business

Matthew T. Mangino
GateHouse News Service
November 1, 2013

Eric Nesbitt, an airman stationed at Langley Airbase in Virginia, was murdered during a robbery in 1996. Two men, Daryl Atkins and William Jones, were responsible for his death. Even though there was testimony at Atkins’ trial that his IQ was only 59, he was sentenced to death.

Atkins appealed. The issue of his mental disability made its way to the U.S. Supreme Court in 2002.  The court, in a decision that bears the name Atkins v. Virginia, banned the execution of the mentally disabled. The decision was based on what the court called evolving standards of decency.

Only 13 years earlier, the Supreme Court ruled that executing the mentally disabled did not violate the Eighth Amendment ban against cruel and unusual punishment.

In Atkins the Supreme Court made an about face — executing the mentally disabled was now unconstitutional. However, what the court failed to do was define mental disability.

That decision was left to individual states. At the time there were 37 states with the death penalty, today there are 32.

As a result of Atkins, states went about drafting legislation and courts began crafting individualized methods for determining mental disability. Some states decided the issue after conviction; some states made the determination before trial — but more importantly, states employed different methods for defining the same thing.

Atkins’ case was sent back to Virginia to determine if he was mentally disabled. The guy whose case abolished the execution of the mentally disabled was subsequently determined not to be mentally disabled and placed back on death row.

Atkins was later removed from death row for completely unrelated reasons and is now serving a life sentence.

After the Atkins decision, many offenders on death row were deemed mentally disabled and were resentenced to life in prison. For those that killed after 2002, and alleged a mental disability, there was a patchwork of state laws and policies to determine eligibility for the death penalty.

Eleven years have passed and finally the Supreme Court has agreed to do what the court should have done in 2002 — provide a framework for determining mental disability.

The new case, Hall v. Florida, arose from the 1978 murder of Karol Hurst, who was 21 years old and seven months pregnant when Freddie L. Hall and an accomplice forced her into her car in a supermarket parking lot. According to the New York Times, 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.

The trial court originally placed Hall’s IQ at 60, although the court found he was not mentally disabled.

"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," Hall’s brief argues, according to the USA Today. "The state of Florida cannot invent out of whole cloth a bright line cutoff for determining mental retardation."

"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 upholding Hall’s conviction. "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."

That time has come. The Supreme Court must provide a uniform procedure for determining mental disability for purposes of the death penalty.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.
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Saturday, November 2, 2013

The Cautionary Instruction: PA Supreme Court rules Miller v. Alabama not retroactive

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
November 1, 2013

This week, the Pennsylvania Supreme Court decided Commonwealth v. Ian Cunningham. The 4-3 decision ruled that Miller v. Alabama, the U.S. Supreme Court decision striking down mandatory life in prison for juveniles, is not retroactive.

The deciding fourth vote was cast by Justice Correale F. Stevens who was not on the Court when Cunningham was argued.

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

The linchpin of the Miller decision was that "mandatory life without parole for a juvenile precludes consideration of…” anything that might be unique or mitigating about a particular crime or offender. The sentence was mandatory and nothing else mattered but the conviction.

Majority opinion
Concurring opinion
Dissenting opinion
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 in Cunningham, written by Justice Thomas G. Saylor, found nothing to convince the court that “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."

There have been a number of conflicting decisions among state and federal circuits with regard to Miller. 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.

Cunningham had argued that the Miller decision was a substantive rule of law declared by the Supreme Court and therefore retroactive to cases that were not on direct appeal at the time Miller was decided. This would include the nation leading 450 offenders in Pennsylvania’s prisons serving life for offenses committed as juveniles.

The Pennsylvania Supreme Court found, applying Teague v. Lane, 489 U.S. 288 (1989), that the Miller holding “does not categorically bar a penalty for a class of offenders,” and is therefore procedural and not substantive.

If Miller set forth a procedural rule then retroactivity would apply if the ruling was considered a watershed decision.

According to the Court, a watershed decision is limited to “sweeping” changes on the order of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963) the decision that all indigent defendants charged with felonies are entitled to counsel. The Court held “modifications of a less broadscale nature, while they may be very important, simply do not require retroactive application.”

With so much on the line for so many inmates in Pennsylvania, and across the country, the Supreme Court found Cunningham fell into the latter category.

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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Friday, November 1, 2013

Read my Co-Authored Article in The International Journal of Criminology and Sociology

On October 30, 2013, The International Journal of Criminology and Sociology published a peer reviewed article I wrote along with Dr. David R. Champion of Slippery Rock University.  The article, Prosecutorial Discretion and the Death Penalty: An Integral Perspective explores the decision making process for prosecutors in capital cases.

The abstract provides: The prosecutor’s choice to pursue the death penalty is one of the most momentous decisions he or she will face. Capital punishment represents the ultimate power of the state over its citizenry, and the decision to take the life of an offender is fraught with moral complexity. This paper reviews some of the extant literature on the US death penalty in general and the particular issue of decision-making for prosecutors. Further, we introduce discussion on how Wilber’s Integral theory might be applied to the topic. We present aspects of Integral theory, including the four quadrant model and what Wilber refers to as the Basic Moral Intuition (BMI), as possible tools that may be used to navigate the ethical difficulties surrounding this decision-making process. We anticipate that delving into aspects of the Integral theory and contemplating on how they relate to concrete issues of criminal prosecution may assist CJ practitioners in how they might find pathways to resolutions of ethical quandaries.

Full access to the article is available Here