U.S. Supreme Court: Federal defenders at issue in death penalty case

Federal defenders, who have already faced criticism from the Pennsylvania Supreme Court and a federal judge over their tactics, are now being asked to explain themselves to the U.S. Supreme Court, reported The Legal Intelligencer.
In refusing to review the death sentence of Michael Ballard, who pleaded guilty in 2011 to killing four people, including his ex-girlfriend, in Northampton County, the court took note of a letter from Ballard complaining about the federal defenders' attempts to get involved in his case.
According to the docket, the court has ordered Marc Bookman, the director of the Atlantic Center for Capital Representation, to respond to Ballard's June 2 letter within 40 days.
In his letter, Ballard said he "never authorized anyone" to file anything on his behalf and that he's not appealing his sentence "any further than it has been."
"It is my most ardent plea that asks now of you that the appeal filed in my behest be rejected summarily," Ballard wrote. "The reasons being: the 'federal defender's' filing have acted without my authorization; without my knowledge even. They are attempting to secure themselves as 'attorney's of record' so as to circumvent having to obtain my authorization.
"And lastly, but most importantly, they are acting against my own wishes to waive my appeals."
Bookman declined comment. Northampton County District Attorney John Morganelli was not available at press time. However, he told the Easton Express-Times he sent a copy of Ballard's letter to the court to let the justices know of Ballard's opposition.
"He (Bookman) has some explaining to do to the Supreme Court," Morganelli told The Express-Times.
In response to similar criticisms made in another article in The Legal, Bookman wrote a letter to the editor. In the letter, Bookman rejected the idea the defenders were gaming the system.
"The implication is that, but for the delaying tactics of the defense attorneys, there would have been regular executions in Pennsylvania, rather than the three individuals who wanted to be executed in the late 1990s," Bookman wrote. "This does not explain the more than 100 reversals of death sentences, reversals based on constitutional errors rather than delay. In short, this 'gaming' is nothing more than outstanding lawyering.
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Lawrence County one of worst in collecting fingerprints

Missing prints mean inaccurate criminal background checks
In 2013, 30,000 suspected criminals whose charges included sex crimes, assaults and murder were not fingerprinted by Pennsylvania police, according to state records, reported PublicSource.org.
State law requires that suspected offenders be fingerprinted within 48 hours of arrest.
So, if thousands of people aren’t getting fingerprinted, whose fault is it?
Luzerne, McKean, Lawrence and Northumberland counties are the four worst when it comes to fingerprinting, with police failing to fingerprint roughly 40 percent of the people they arrest, according to data compiled by the Pennsylvania Commission on Crime and Delinquency and analyzed by PublicSource.
“It’s up to the police to do it. It’s a mandatory function. It’s not anybody else’s job but the arresting department,” said Eric Radnovich, director of the Bureau of Justice Services at the Cumberland County District Attorney’s Office.
But police often pass the buck, relying on judges, jailers or even defendants themselves to be sure prints are made. In many cases, prints are made more than a year later, if they’re made at all.
The social cost of not fingerprinting those who are arrested is not small: Without a fingerprint, a defendant has no criminal history.
That means they can’t be tracked. Neither the court system nor other police departments have a record. Their background check would be clean if they wanted to teach or coach in a school or daycare or work in a nursing home. Their offenses wouldn’t be on record if they wanted to buy a gun.
“Just think about someone in your neighborhood who was arrested for a sex offense involving a child. It’s like the system is blind to him,” Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing, told PublicSource.
Lawrence Counties is missing 38.1 percent of cases from the last half of 2013. Prints were missing for hundreds of cases.  In nearby Beaver County only 1.9  percent of prints are missing.
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The Cautionary Instruction: High Court rules cellphone contents protected

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 27, 2014
The U.S. Supreme just made it more difficult to continue an investigation of criminal conduct incident to the arrest of a suspect.
In Riley v. California and United States v. Wurie, the court said that with rare exceptions, the Fourth Amendment requires that police obtain a search warrant to probe the contents of cellphones in the possession of arrestees. Rejecting government assertions of the need for quick access to the contents of cellphones, the court stressed the damage to personal privacy that would result from police seizure of devices that “place vast quantities of personal information literally in the hands of individuals.”
The law prior to these decisions provided that an arresting officer may search an arrestee to discover and remove weapons and to seize evidence to prevent its concealment or destruction. Included in virtually every search is a cellphone.
“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ ” Chief Justice John Roberts Jr. wrote for the court. He added that cellphones and smartphones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies, wrote Adam Liptak of the New York Times.
“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”
The court also held that while the police may not search the cellphone data, they may search the cellphone itself to make sure it cannot be used as a weapon. Justice Samuel Alito filed a concurring opinion, noting that he was not convinced that the rule on searches incident to arrest is based on the need to protect the safety of the arresting officers and the need to prevent the destruction of evidence.
The justices said the police are not “without specific means” to address their concern about the remote wiping of a cellphone to remove evidence. “Remote wiping can be fully prevented by disconnecting a phone from the network,” Roberts wrote. The authorities, he said, can turn the phone off or remove its battery.
(Image: Evan Vucci/Associated Press)

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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GateHouse: The battle against impaired driving rages on

Matthew T. Mangino
GateHouse News Service
June 27, 2014
A 2012 report found that deaths resulting from impaired driving, commonly referred to as drunk driving, fell below 10,000 for the first time since researchers began tracking such numbers. Advocates for tougher impaired driving laws were thrilled. When the National Highway Traffic Safety Administration released new data in fall 2013, those same people were deflated.

The statistics reflected an increase. For the first time in six years, impaired driving deaths rose. The increase was substantial, almost 5 percent. There were 10,322 impaired driving fatalities in 2012 — compared to 9,865 in 2011.

Has a 20-year downward trend been reversed?

If it has, it is not the result of young people getting behind the wheel while impaired. Fewer teens are drinking and driving, according to researchers at the Centers for Disease Control and Prevention. The CDC found that drunken driving among teens has decreased by 54 percent over the last 20 years.

Driving while impaired accounts for about one-third of all traffic fatalities. According to the NHTSA, overall traffic fatalities increased to 33,561, which is a 3.3 percent increase.

For years researchers have believed that deaths on America’s highways are preventable, and they have adopted measures to prove it. They have identified policies that help keep impaired drivers off the road. Between 1991 — when there were 15,827 impaired-driving deaths — and 2012 — when there were 10,322 — the rate of impaired driving fatalities per 100,000 people decreased 48 percent nationally, according to the NHTSA.

Great strides have been made in combating impaired driving.

Since 1992, when the NHTSA first recommended to Congress that states reduce the legal impairment threshold from .10 blood alcohol content to .08, all 50 states and the District of Columbia adopted the lower impairment standard.

Other initiatives, like ignition interlock, have saved lives. Ignition Interlock is an in-car Breathalyzer, a device that can be installed to prevent people who have consumed alcohol from driving. They are installed after a driver has been convicted of driving while impaired. Data show that legally impaired drivers involved in fatal crashes were eight times more likely to have a prior DWI conviction than drivers who had not been drinking, reported the CDC.

Research shows that ignition interlocks can reduce the rate of re-arrest among drivers convicted of driving while impaired by two-thirds.

Another effective tool is the sobriety checkpoint. Law enforcement officers stop all drivers on a designated road to assess their level of alcohol impairment. Checkpoints deter impaired driving by increasing the drivers’ perceived risk of arrest if they choose to get behind the wheel impaired.

Research has shown that checkpoints reduce impaired driving crashes and deaths by as much as 20 percent, according to the CDC.

What is on the horizon in the battle against impaired driving?

Researchers are currently trying to develop a breath test to detect marijuana use for purposes of investigating impaired driving. Technology exists to use roadside testing for alcohol. Preliminary breath tests, or PBTs, are frequently employed by law enforcement agencies.
Researchers in Poland have developed a new tool that employs lasers to detect alcohol in moving vehicles from the side of the road. The technology was developed by the Military University of Technology in 2013.

When alcohol is detected in a vehicle, the device sends a message to police along with a photo of the suspected vehicle and the license plate number. This gives law enforcement the ability to pull over a vehicle and determine whether a driver is intoxicated.

Even without advanced technologies, the war wages on. According to FBI statistics, every year police officers across the country arrest about 1.4 million motorists for driving while impaired.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com, and follow him on Twitter at @MatthewTMangino.

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Book Review: Dignity Rights: Courts, Constitutions, and the Worth of the Human Person. By Erin Daly

This review by Matthew T. Mangino appeared in the April, 2014 edition of The Champion a national publication of The National Association of Criminal Defense Attorneys.

Erin Daly tells us that law is a practical enterprise that deals with a real problem in real peoples’ lives.  With that as a backdrop, Daly takes off on an ambitious journey to explain the evolution of dignity in American, and the world’s, jurisprudence.  Dignity Rights: Courts, Constitutions, and the Worth of the Human Person is worth the effort.

There was a  “cavalcade” of constitutional dignity rights after World War II. There was no denying that phenomenon as policymakers came to terms with the horrors that occurred in Asia and Europe. In 1948, the Universal Declaration of Human Rights (UDHR) inspired the postwar constitutional drafting.

By the end of World War II the U.S. Constitution had been examined, reviewed, analyzed, interpreted, expanded, restricted, revered and condemned countless times.  With that being said, the U.S. Constitution never mentions dignity.

Maybe that’s why the concept of human dignity has been a late-comer to American jurisprudence.

 Daly, a professor at Widener University Law School wrote, “The influence of World War II on dignity jurisprudence in America is visible, though less pronounced than in some other countries.”

            The U.S. Supreme Court’s first mention of dignity as an individual right is a fleeting reference in Skinner v. Oklahoma in 1942. In a 1945 dissent in U.S. v. Screws, Justice Frank Murphy wrote, “The right was his…because he was a human being. As such he was entitled to all the respect and fair treatment that befits the dignity of man.”

From the mid-twentieth century up through the present, Daly points out that the concept of dignity arose “most clearly in the context of the police state, as defendants and inmates argued forcefully that the investigative, prosecutorial and punitive practices of the government violated their individual dignity.”

In Miranda v. Arizona the Supreme Court wrote of oppressive interrogations as “destructive of human dignity.” In Roper v. Simmons, the court outlawed the execution of juveniles.  The Court wrote, “The basic concept of the Eighth Amendment is nothing less than the dignity of man.”

Although dignity has seeped into high court decisions, Daly writes, “It cannot be denied that the U.S. Supreme Court has so far declined to embrace human dignity with the ardor of its global peers.” In fact, 95 percent of the opinions from the Roberts Court do not mention dignity and half of those that do mention dignity in connection with inchoate ideas.

Daly explains there is more to the story of the U.S. Supreme Court’s inattention to human dignity. The court has sparred over exactly what dignity means and what dignity is.  In a controversy over the right of self-representation at trial, Justice Stephen Breyer wrote that such action “will not ‘affirm the dignity’ of a defendant who lacks the mental capacity” to defend himself.   Daly wrote that Breyer “holds that the state can limit a person’s choice in order to enhance his or her personal dignity.”

Justice Antonin Scalia unabashedly takes another approach.  He wrote, in dissent, in Indiana v. Edwards, “the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the state—the dignity of individual choice.”

Daly reminds us of what Lincoln said more than a century and a half ago, when vital questions are left to the Supreme Court, “People will cease to be their own rulers.”  Daly doesn’t see it that way.

The dichotomy on the court with regard to dignity is a product of conservative and progressive agendas of the respective jurists.  There are fundamental differences as to the state’s role in supporting dignity.

As the role of government in promoting dignity evolves around the world there is no denying that the commitment to democracy is on the rise.  Daly asserts, as democracy spreads a new version of the judicial role it allows the people, their government and courts to work together to develop policy with constitutional values.

Daly suggests that dignity jurisprudence promotes democracy by recognizing that “[E]ach person has one very important, very valuable asset that is inalienable and irreducible and infinite”—dignity.  The concept of dignity also permits democracy to thrive, especially in the middle class.  Judicial pressure on political branches of government can promote worthy causes such as eradicating “extreme poverty.”  Finally, jurisprudence of dignity invites people into public discourse.

Daly wraps the connection of dignity, democracy and jurisprudence into a neat little bow.  Constitutions and courts protect human dignity.  People feel dignity—they are empowered and increasingly participate in politics.  That power forces policymakers to listen.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. in New Castle, Pennsylvania. You can read his blog every day at www.mattmangino.com and follow him on twitter @MatthewTMangino)

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Violence Policy Center: Gun related deaths on the rise

States with weak gun-control laws and higher rates of gun ownership tend to have higher rates of gun deaths, while states with stronger policies and fewer gun owners have significantly lower rates of gun-related deaths, according to a recent Violence Policy Center study.
Analyzing 2011 data from the Centers for Disease Control and Prevention, the report found that the state with the highest gun death rate, which includes murder, accidental shooting deaths and suicides, was Louisiana, where 18.91 per 100,000 residents died by gun violence and nearly 46 percent of households owned guns, reported The Huffington Post.
Mississippi, Alaska, Wyoming and Montana had the next highest rates of gun deaths, while Rhode Island ranked as the state with the lowest rate of deaths by firearms at 3.14 per 100,000, followed by Hawaii, Massachusetts, New York and New Jersey.
Nationwide, guns killed 32,351 people in 2011 -- a 679-person increase from the previous year -- for an average gun death rate of 10.38.
On both a statewide and federal level, America’s firearm-related death rate significantly outnumbered most other Western industrialized countries. The 2011 gun death rate in Australia was 0.86 per 100,000 and in the United Kingdom it was 0.23 per 100,000.
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California's prison realignment not making the grade

Nearly 15 months after starting the "boldest move in criminal justice in decades," California Gov. Jerry Brown declared victory over a prison crisis that had appalled federal judges and stumped governors for two decades. Diverting thousands of criminals from state prisons into county jails and probation departments not only had eased crowding, he said, but also reduced costs, increased safety and improved rehabilitation. "The prison emergency is over in California," Brown said last year, reported the Los Angeles Times.
The prison population fell sharply at first, dropping from 162,400 to 133,000, but it is rising again. There now are 135,400 inmates in state custody, a number expected to grow to 147,000 in 2019.
The state Finance Department originally projected that realignment would reduce prison spending by $1.4 billion this fiscal year and that about two-thirds of that savings would be passed on to counties to cover the costs of their new charges.
Instead, the state's increased costs for private prison space and the compensation it pays out for county jails, prosecutors and probation departments adds up to about $2 billion a year more for corrections than when Brown regained office.
Without stemming the flow of prisoners into the system, the problems created by crowding continue. The Little Hoover Commission, an independent state agency that investigates government operations, said in a May report that realignment simply "changed the place where the sentence is served."Many jails are now overcrowded, and tens of thousands of criminals have been freed to make room for more. Brown insists his plan is working, although he has conceded that change can be slow. "It is not going to create miracles overnight," he said this spring. The governor's office has embraced the idea that much of the incarceration, probation and rehabilitation cycle should take place on the local level, instead of being left to the state. Putting prisoners back in local hands "is encouraging and stimulating creative alternatives," he said.
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Florida expands 'stand your ground' to warning shots

An update of Florida's controversial "Stand Your Ground" law allows Floridians who threaten to use a gun or who fire a warning shot to protect themselves the chance to avoid criminal prosecution, reported ABC News.

The change, signed into law June 20, 2014 by Gov. Rick Scott, was partly inspired by the case of Marissa Alexander who was sentenced to 20 years in prison after firing a shot during a dispute with her allegedly abusive husband.

Alexander's lawyers attempted to claim self-defense and that it was a warning shot, but the jury found Alexander guilty and she was sentenced to 20 years in prison under Florida's current sentencing rules.

An appellate court later overturned the conviction and ordered a retrial for Alexander.

Alexander's defense team said they are "grateful" for the change in the law.

"We learned today that Governor Rick Scott has signed the corrective Stand Your Ground Bill, which was advanced by the legislature as a result of concern about Marissa's case among others," read the statement. "We are of course grateful for the governor's actions."

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Florida carries out third execution nationwide in 24 hours

The 23rd Execution of 2014
In the third execution nationwide in less than 24 hours, a three-time Florida murderer John Ruthell Henry was put to death by lethal injection on June 18, 2014, according to The USA Today.
The execution of Henry was the state's 13th since April 2013 and the 18th since Gov. Rick Scott took office in 2011. The trio of executions Tuesday and Wednesday were the first since the botched lethal injection of an Oklahoma killer in April.
Henry, 63, was pronounced dead at 7:43 p.m. after being injected with three drugs at the Florida State Prison in Starke.
He was convicted in the 1985 stabbing deaths of Suzanne Henry and her 5-year-old son near Tampa. Two years earlier, he was paroled after serving seven years for brutally stabbing his girlfriend, Patricia Roddy, in 1976.
The U.S. 11th Circuit Court of Appeals and the U.S. Supreme Court rejected Henry's pleas to delay the execution. His attorney argued he had a low IQ, was mentally disabled and therefore should not be put to death under the U.S. Constitution's ban on cruel and unusual punishment.
Henry refused his last meal and was described by a prison official as being calm hours before his death.
He was injected with midazolam hydrochloride, vecuronium bromide and potassium chloride.
Murderers in Georgia and Missouri were executed late Tuesday and early Wednesday after a seven-week pause triggered by the botched lethal injection of Clayton Lockett in Oklahoma in late April.
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Missouri executes murderer of two

The 22nd Execution of 2014
Missouri has carried out the execution of 46-year-old John Winfield for the murders of two women in St. Louis County 18 years ago, reported Missourinet. Winfield received a lethal injection of pentobarbital at 12:01 on June 18, 2014 and was pronounced dead at 12:10.
Winfield appeared to tell the witnesses that were there for him, “I love you,” after the curtains were opened to the execution chamber. After the 5 grams of the drug was administered, Winfield took a series of deep breaths and then stopped moving. The execution appeared to take less than a minute.
Winfield declined to make a final statement and did not accept food prior to the execution. His body was released to one of his attorneys.

The execution was witnessed by five members of the family of one of the women he killed, Shawnee Murphy, as well as his ex-girlfriend Carmelita Donald whom he shot four times leaving her blind, three members of her family, his mother, his daughter, and two of his friends. There were no representatives present of the other woman he fatally shot, Arthea Sanders.

Winfield is the seventh man executed in Missouri since November, and the seventh since the state began using pentobarbital compounded by a pharmacy that the Department of Corrections will not officially confirm the identity of.
After the execution was carried out, Attorney General Chris Koster also issued a statement. He writes, “Nearly two decades have passed since John Winfield’s cowardly acts of rage and jealously changed the lives of three families forever. He brutally murdered two defenseless young women, one in front of her children, and attempted to murder the mother of his own children, leaving her permanently disabled. For his actions, a court lawfully sentenced him to death under Missouri law, and tonight that sentence has been carried out.”
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Georgia carries out first execution nationwide in 7 weeks

The 21st Execution of 2014
Georgia inmate Marcus Wellons was put to death on June 17, 2014 for the 1989 rape and murder of a Cobb County teenager in the state’s first execution where the source of its lethal-injection drug was cloaked in secrecy, reported the Atlanta Journal-Constitution.
Wellons’ execution received heightened scrutiny because it was the first one in the country to be carried out since a botched execution occurred in Oklahoma seven weeks ago.
That incident ratcheted up the debate over the lethal-injection process and the use of made-to-order drugs produced by undisclosed compounding pharmacies. Even a federal appeals court judge who declined to halt the execution Tuesday cited what happened in Oklahoma as a reason why Georgia should not have a lethal-injection secrecy law.
Wellons, 58, was pronounced dead at 11:56 p.m. after his final appeals were denied by the U.S. Supreme Court.
Wellons apologized to the family of India Roberts the teenager he was convicted of killing and said, “I ask and hope they will find peace in my death.”
He thanked his family and friends for their love and prayers and added, “I’m going home to be with Jesus.”
Wellons hummed as prayer was being said and as the warden read the death warrant. Otherwise there was little movement visible as he lay on the gurney. He was seen to exhale a couple of times before his body seemed to quiver and then there was no more movement.
Three minutes before Wellons was declared dead a nurse standing to his left was seen asking one of the corrections officers if he was ok, just before the officer fainted.
In 1993, a Cobb County jury sentenced Wellons to death for the rape and murder of 15-year-old India Roberts in the Vinings townhouse of Wellons’ girlfriend. Wellons was supposed to be moving out of the townhouse when he abducted India as she was walking to her school bus stop the morning of Aug. 31, 1989. She was believed to have been strangled with a telephone cord.
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GateHouse: Shootings on the rise in New York City

Matthew T. Mangino
GateHouse News Service
June 20, 2014


New York City Police Commissioner Bill Bratton had all of the answers recently when he was besieged with questions about the increasing number of shootings and shooting victims in the city.

Here is an excerpt of the most astonishing answer: This year’s increase in shootings “wouldn’t be as steep if last year’s numbers hadn’t dropped so low.” Translation: If law enforcement efforts were not so effective last year when I wasn’t commissioner, I wouldn’t look so bad this year as the new commissioner.

According to recent figures, there were 507 shooting victims as of June 8, compared to 448 last year, a 13.2 percent increase. The number of shootings stands at 434, compared to 392 a year ago, a 10.7 percent increase, reported Capitol New York.

At the same time, the number of guns seized off city streets has declined. The police have confiscated about 1,290 guns so far this year, 10 percent fewer than this time last year, when it seized 1,435 firearms.

As a result, many New Yorkers are starting to rethink the controversial court decision limiting NYPD’s practice of stop-and-frisk. Last year, U.S. District Judge Shira Scheindlin called the city’s stop and frisk “indirect racial profiling” because it targeted racially defined groups, resulting in the disproportionate and discriminatory stopping of tens of thousands of blacks and Hispanics while the city’s highest officials “turned a blind eye,” she said.

“No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life,” Scheindlin wrote in her opinion.

At the time, former Police Commissioner Ray Kelly defended the department’s stop-and-frisk practices during a round of television appearances. He emphatically claimed there’s “no question” violent crime will spike if stop-and-frisk is abandoned.

Last summer, in this column I wrote, “[I]t would be a mistake to pooh-pooh the impact of stop-and-frisk.”

“We’ve had an increase, a temporary increase, in shootings. … Crime goes up, it goes down,” Commissioner Bratton told The Christian Science Monitor. “It’s always going to go up at some point in time. We’ll always have the ability to push it down.”

In the first quarter of 2013, under the administration of former Mayor Michael Bloomberg and Commissioner Kelly, the NYPD stopped, questioned and frisked nearly 100,000 people on New York City streets, reported The Monitor. In the first three months of 2014, under Mayor Bill de Blasio and Commissioner Bratton the number of stops dropped to about 14,000 — an 89 percent decrease.

Can the sudden increase in shootings be the result of dramatically fewer stops? In just 28 days, between May 11 and June 8, there was a startling surge in shooting victims. Reuters reported there were 121 victims of gunfire, compared with 86 for the same period last year, a 41 percent increase.

The interesting thing is that homicides have continued to fall in spite of the increase in shootings. There were 120 murders reported so far in 2014 compared with 140 a year earlier, a 15 percent decline. That puts the city on track to set a new low after posting a total of 333 murders last year, the fewest homicides recorded citywide since 1963.

The declining homicide rate, despite an increase in shooting victims, may reflect in part on improved emergency medical response time, Steven Messner, a criminal justice professor at the State University of New York at Albany told Reuters.

“There continues to be better response times getting to the scene and getting people to the hospital so that shootings that previously would have ended in a fatality, won’t,” he said.
Even with better response times and more effective treatment protocols — if the shootings continue to increase — homicides will inevitably rise as well.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com, and follow him on Twitter at @MatthewTMangino.
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The Cautionary Instruction: Supreme Court takes up Facebook threats

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 20, 2014
The U.S. Supreme Court has agreed to hear the case of Anthony D. Elonis of Berks County, Pennsylvania who was sentenced to nearly four years in federal prison for posting ominous photos and making violent rants on his Facebook page against former co-workers, law enforcement officials and his estranged wife.
The case dates back to 2010, when Elonis' wife left him after a seven-year marriage and took their two children. Apparently despondent , he lost his job at an Allentown amusement park and began a series of dark postings, often in the form of rap lyrics. In his Facebook profile, he said the rants were therapeutic and disclaimed any "true threat."
Columnist Dahlia Lithwick wrote this week, “This case is not only crucially important in that it will force the court to clarify its own "true threats" doctrine and finally apply it to social media to determine whether -- as Justice Stephen Breyer has suggested -- the whole world is a crowded theater. Breyer was referring to Justice Oliver Wendell Holmes’ First Amendment decision in Schenck v. United States.
For more than 40 years, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment. But the court has cautioned that laws prohibiting threats must not infringe on constitutionally protected speech. That includes "political hyperbole" or "unpleasantly sharp attacks" that fall shy of true threats.
The federal statute targeting threats of violence is likely to be used more often in the coming years "as our speech increasingly migrates from in-person and traditional handwritten communication to digital devices and the Internet," said Clay Calvert, a law professor at the University of Florida.
The court's precedent for such cases is now 11 years old. In 2003, the Supreme Court ruled in Virginia v. Black [http://www.oyez.org/cases/2000-2009/2002/2002_01_1107] that a state law equating cross-burning with intimidation went too far, reasoning that not all cross-burning was meant as a threat. Since then, lower state and federal courts have split on what constitutes a threat -- the perpetrator's subjective intent to threaten, or anyone else's objective interpretation.
"There is a lot of fear right now about threats made online,” says Hanni Fakhoury, a lawyer at the Electronic Frontier Foundation, a digital civil liberties non-profit. “But it seems like we’ve elevated the Second Amendment above the First Amendment." "We’ve tolerated stupid speech a long time in this country, and we shouldn’t let the Internet shake that balance,” says Fakhoury. “We need a holistic approach to problems, not just, ‘If you say a threat on the Internet, you’re going to jail.'"

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

Pennsylvania assisted suicide law rarely used

Gus Yiambilis is charged with homicide and causing/aiding in suicide in the carbon monoxide poisoning death of his 59-year-old mother, reported the Bucks County Courier Times.

Yiambilis’ case might be the first prosecution in Bucks County, Pennsylvania for assisting in a suicide, a rarely used felony charge in Pennsylvania. Some legal experts believe the case has the potential to break new ground in the right-to-die movement, which has largely focused on assisted suicide cases involving the elderly, the terminally ill or people with life-altering disabilities.

Katherine Pearson, an attorney and a Penn State Dickinson School of Law expert on legal issues facing older adults, described the Yiambilis case as “extremely rare,” since neither mother nor son was physically disabled or terminally ill, but simply expressed a desire to die.

“Where there was no indication of suffering, physical suffering, or terminal illness, I can’t think of one that I’ve seen,” she said. “There may be a proof problem for the prosecution on that side of the case.”

Nationally, legal experts note that arrests for assisting in suicide are less common than years ago, which some believe signals changing attitudes about end-of-life decisions, despite existing laws that outlaw it in all but five U.S. states.

Statewide, 53 people were convicted of causing/aiding in suicide between 2004 and 2012, according to data from the Pennsylvania Commission on Sentencing. The data reflects sentences reported to the commission through its secure Web application.

Most of those convicted — 39 — were sentenced to state prison. Only 10 were sentenced to so-called “restorative sanctions,” non-confinement sentences that include fines, according to the commission.

Assisting in suicide has been a crime in Pennsylvania since 1973 and the law specifically notes that survivors of suicide pacts can be guilty under the statute.

Under the law, a person can be charged in either of two ways: criminal homicide for intentionally causing someone to kill himself by force, duress or deception or, as Yiambilis is charged, for aiding or soliciting suicide. That’s when a person intentionally aids or solicits another person to commit suicide or their behavior causes someone to attempt or commit suicide.

Yiambilis also is charged with homicide, but not under the assisting in suicide law.

Pennsylvania District Attorneys Association executive director Richard Long said that he has not heard of many prosecutions under the law.

“It’s one of those things that a district attorney has to make a determination on regarding the facts and determinations involving a suicide,” Long added.

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SCOTUS to consider true-threat exception to freedom of speech

The U.S. Supreme Court will review the true-threat exception to freedom of speech when it considers the case of Anthony Douglas Elonis, a Berks County, Pennsylvania man who threatened his estranged wife, former co-workers and police through posts on his Facebook page, reported The Legal Intelligencer.
The high court carved out an exception to the constitutional protection of free speech for threatening language, but it never clearly defined the bounds of that exception.
So the question for the Supreme Court is whether someone can be convicted for making threats based on a reasonable person's understanding of the language as threatening or if the conviction must be based on the speaker's subjective intent to threaten.
When it ruled in September, the U.S. Court of Appeals for the Third Circuit followed the lead of most circuits that have ruled on the issue—with the exception of the Ninth Circuit—and declined to interpret a 2003 opinion from the U.S. Supreme Court as requiring subjective intent from the speaker in order to trigger the true-threat exception to the First Amendment's protection of speech.
The understanding of the speech as a threat to a reasonable person is to be weighed, rather than the intent of the speaker to threaten, under the Third Circuit's standard.
The high court framed the question this way: "Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a 'reasonable person' would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort."
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Pennsylvania DOC hiring freeze raises safety concerns

The money-saving hiring freeze placed on Pennsylvania state prisons amid budget pressure has raised concerns about safety in the institutions, reported the Citizen Voice.

Roy Pinto, president of the Pennsylvania State Corrections Officers Association, told the Associated Press that prison staffing is at the 2008 level, while the state prison population has grown by 5,000 more inmates since then. He said officers’ biggest concern is their own safety and a hiring freeze that lasts well past July 1 — the soonest Secretary of Corrections John Wetzel projected it to end when he imposed the freeze May 27 — will increase the danger.

Susan Bensinger, deputy press secretary for Pennsylvania DOC, said the freeze is across the board, not just for hiring correctional officers.

“We feel that freeze is going to be a short-term, temporary freeze,” she said.

As of April, more than 50,000 inmates were in state prisons. The state prison system has 9,483 security staff employment positions, but prison officials were unable to provide the total number of vacant security staff positions. Of the approximately 16,000 total employees, there are 422 vacant positions.

Bensinger said that number of vacant positions “is not out of line with where we normally are.”

The DOC freezes lasted no longer than six months, according to Bensinger; state freezes have lasted up to a year. She said there’s no safety concerns among administrative members regarding the vacant positions because if there are “critical positions” that need to be immediately filled, staff can apply for an exception.

“Wetzel started out as correctional officer,” Bensinger said. “He would not compromise the safety of staff and public to save a dollar.”

Bensinger said the DOC initiates freezes to make determinations about filling positions and managing the budget. It’s a temporary stop in hiring so the administration can review all open positions to determine what will need to be filled and what can wait without compromising safety and security, adding it also provides some temporary savings.

The state’s finances are under extreme pressure, according to the AP. Tax collections for the 2013-14 fiscal year ending June 30 are about $600 million behind expectations, putting Republican Gov. Tom Corbett’s $29.4 billion budget proposal out of balance by more than $1 billion.

“With a need for supplemental appropriations this year and the budget uncertainties looming next year, the implementation of a freeze at this time is prudent fiscal measure,” Bensinger said.

Each month, she said, there are about 100 turnovers in the statewide prison system, and hiring state employees is always a process — no matter the agency — given civil service tests, application reviews, physicals and mental health evaluations.

A class of 42 trainees graduated Friday to become correctional officers. Despite the freeze, Bensinger said, those individuals will be granted one year of conditional employment.

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Court refuses to scrutinize the 'trial penalty'

A Washington federal judge refused an opportunity to shed light on the “trial penalty”—the consequences defendants face when they choose to go to trial reported, The National Law Journal.
Attorneys sought to unseal a PowerPoint presentation that prosecutors prepared in the case against Kevin Ring, a former lobbyist convicted in the Jack Abramoff scandal.
A jury convicted Ring in late 2010 of trading things of value—including meals and trips—in exchange for favors from public officials. It was his second trial. A jury hung following his first trial in 2009. Ring is serving 20 months in prison.
Ring’s lawyers at Miller & Chevalier asked the court in December to unseal portions of a PowerPoint document the government used during a reverse proffer session—a meeting where the government tells a defendant about the case to force a decision over whether to plea or go to trial. Ring’s lawyers argued there was a strong presumption in favor of public access to judicial proceedings and court records.
The presentation, Miller & Chevalier partner Andrew Wise wrote, would educate public interest groups, academics and others “about how pleas and charging decisions can work and how prosecutors’ actions can affect the criminal justice process.”
But U.S. District Judge Ellen Segal Huvelle noted in her June 10 decision that the PowerPoint presentation was never filed with the court; it was provided to Ring and his lawyers before Ring was indicted in September 2008. As a result, the judge said, the presumptive right of public access didn’t apply.
“A document is part of the judicial record if it is filed with the court and plays a role in the adjudicatory process,” Huvelle wrote. “If a document is not filed with the court, it is not part of the judicial record and is not subject to a common law right of access.”
Wise declined to comment.
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Mangino talks OJ Simpson on WFMJ-TV

Watch my interview on WFMJ Weekend Today about the 20th anniversary of the OJ Simpson arrest and trial.  Click here to watch the interview. Then scroll through Weekend Today Videos.

Connecticut sentences man to death after repealing the death penalty

In 2006, Richard Roszkowski murdered a 9-year-old girl. He shot her three times as well as killing two adults.
Last month, a Connecticut judge sentenced Roszkowski to death for the crimes — despite the fact that the state eliminated the death penalty in 2012, reported NPR.
"This is a terrible sentence," Judge John Blawie said at the sentencing hearing. "But it is in truth, sir, a sentence you wrote for yourself on Sept. 7, 2006."
The penalty left Connecticut in an interesting situation. Three states — Connecticut, New Mexico and Maryland — have abolished the death penalty, but only for those crimes committed after the repeal was passed.
According to the Death Penalty Information Center, Connecticut is the only state to have sentenced someone to death after repealing the death penalty. The state supreme court is considering whether that is unconstitutional.
Kevin Kane, the state's top prosecutor, says "it's not really complicated." He thinks lawmakers didn't leave any room for interpretation.
"They very clearly and very recently voted that the death penalty should apply, or does apply, to any case committed before April of 2012. We can't say, 'Well, gee, they repealed it, so it must mean that it can't be sought anymore.' "
This means the death penalty could still be used for the 11 people on Connecticut's death row, as well as for anyone who may have committed a crime before the repeal in 2012.
While he says there is no ambiguity in the law, Kane originally counseled the state legislature against such a prospective repeal. He told lawmakers that he wouldn't seek the death penalty for a hypothetical crime that occurred the day before the repeal became effective. Doing so would seem arbitrary, he said, and he wouldn't feel right doing it.
But now, the law is the law. "We've taken an oath to uphold the law as the legislature passes it, and that's our obligation," Kane says.
Kane says the legislature is a direct expression of the voice of the people. Yet Connecticut's record is another expression of the state's attitude toward capital punishment. Even when it had the death penalty, Connecticut rarely executed people – putting only one person to death in more than 50 years.
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GateHouse: Prisons, America’s ‘new asylums’

Matthew T. Mangino
GateHouse News Media
June 13, 2014
A new report by the Treatment Advocacy Center, “The Treatment of Persons with Mental Illness in Prisons and Jails,” has found that the number of individuals with serious mental illness in prisons and jails now exceeds the number in state psychiatric hospitals by a factor of 10.

In 2012, there were an estimated 356,268 inmates with severe mental illnesses in U.S. prisons and jails. There were only 35,000 mentally ill individuals in state psychiatric hospitals.

The report suggests that prisons and jails have become America’s “new asylums.”

“In 44 of the 50 states and the District of Columbia, a prison or jail in that state holds more individuals with serious mental illness than the largest remaining state psychiatric hospital,” according to the report prepared by the TAC, a nonprofit organization dedicated to the timely and effective treatment of severe mental illness.

Mental health agencies are not the only entities sounding the alarm. Cook County, Illinois, Sheriff Tom Dart says that society has cast aside the mentally ill, which is the primary reason why prisons are overcrowded in his state.

According to the Chicago Defender, the Cook County Jail is currently the largest mental health facility in the U.S. with 30-35 percent of its 9,000 daily population living with a serious mental illness.

“Society doesn’t want to fund mental health [programs],” said Dart.

Bob Carolla, a spokesman for the National Alliance on Mental Illness, told the Defender that people will end up in the prison system if they don’t have access to “adequate and effective” mental health treatment.

“In [the] last few years we’ve seen massive state budget cuts in mental health services, so that makes the problem only greater, with more people being funneled into jail,” he said.

Untreated psychiatric illness often gets worse. The problems are not just inside the prison walls. Many inmates with mental health problems leave prison more unstable than when they entered. The treatment of inmates with mental illness can be very costly and is often a strain on corrections’ budgets.

Just as important, inmates who are transitioning back into the community need to have immediate and seamless mental health services. Without adequate treatment the results can be catastrophic.

Last weekend, a Brooklyn, New York, man, with a history of psychiatric commitments, was accused of stabbing two children in an elevator. Investigators indicated that he may not have connected with mental health services after being released from prison on May 23.

Brian Stettin, policy director of the TAC, told CBS News, “You can’t just drop someone with severe mental illness into the community and expect they’re going to find their way to treatment.”

Last December, President Barack Obama told an audience at the National Conference on Mental Health, “[L]ess than 40 percent of people with mental illness receive treatment … even though three-quarters of mental illnesses emerge by the age of 24, only about half of children with mental health problems receive treatment.”

Why?

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

According to the TAC’s report, “one of the driving forces behind the closure of state mental hospitals and subsequent transinstitutionalization of mentally ill individuals from hospitals to prisons and jails has been a belief that it saves money.”

Those savings may be illusory.

The TAC makes a cogent argument for unbiased cost assessments that identify the comprehensive expense of incarcerating mentally ill individuals and provide public officials with a more accurate basis for making mental illness treatment policy.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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The Cautionary Instruction: America’s ‘punishment tax’

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 13, 2014
Fifty-five-year-old Eileen DiNino died in a Berks County jail last weekend. DiNino’s crime -- failure to pay fines racked up by her son’s truancy. She was in jail because her son didn’t go to school.
The guy that threw her in jail, District Judge Dean R. Patton, told the Reading Eagle, “This woman should not have died alone in prison … Our ultimate goal is not to fine people or put them in jail, but that is the only tool the Legislature has given us when people can’t afford to pay.”
Hundreds of parents, some impoverished and overwhelmed, have been jailed in Pennsylvania for failing to pay court fines that arise from truancy hearings after their children skip school, creating what some call a “debtor’s prison.”
Nationwide, indigent offenders are being jailed if they don’t pay fines and what amount to revenue-producing court costs. In 2010, the Brennan Center for Justice issued a report on Florida’s reliance on fees to fund its courts.

Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The process of cranking up fees to pay for courts became known as “cash register justice.”
In fact, some states apply "poverty penalties," such as late fees, payment plan fees and interest, when people are unable to pay all their debts in a lump sum, reported CBS News Moneywatch.
Alabama charges a 30 percent collection fee, for instance, while Florida allows private debt collectors to add a 40 percent surcharge on the original debt. In North Carolina people are charged for using a public defender, so indigent defendants who cannot afford an attorney are forced to face jail time without counsel.
According to a 2013 report prepared by the ACLU, The Outskirts of Hope, the inability to pay a fine in Ohio is “the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants and even jail time.”
In some Ohio counties offenders are being jailed because they are too poor to pay fines. That is a violation of federal and state law and the perpetuation of “debtors’ prison.”
All of this, in spite of a 30-year-old U.S. Supreme Court ruling that courts cannot properly revoke a defendant's probation for failure to pay a fine and make restitution, absent evidence that the defendant was willfully refusing to pay.
Like Eileen DeNino, men and women, across the country are being sent to jail simply because they don’t have money. The ever-increasing court fees and costs are not about deterrence, retribution or rehabilitation -- they’re about creating revenue. America has created the “punishment tax” -- and jail cells are routinely being used to collect it.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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Mangino talks The Executioner's Toll, 2010 on WYTV-TV

Watch my interview on WYTV-TV about my book The Executioner's Toll, 2010.  Click here to watch.

SCOTUS will not hear Miller v. Alabama retroactivity issue

The U.S. Supreme Court has declined to hear an appeal by juvenile-justice advocates to revisit the sentences of juveniles sentenced to life without parole, reported the Philadelphia Inquirer. "We are obviously disappointed," said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center.  This week's developments are rooted in a complex legal history.

In June 2012, the Supreme Court ruled in Miller v. Alabama that children under 18 convicted of homicide could no longer receive mandatory sentences of life without parole. Such automatic sentences, the court found, are unconstitutional, violating the Eighth Amendment's prohibition against cruel and unusual punishment. Life sentences for juveniles committing murder are allowable; they just cannot be mandatory.
The court said children cannot be blamed the same way adults can, since juveniles do not fully weigh risks, are prone to peer pressure, and do not possess completely developed brains. The court also said juveniles have "greater prospects for reform" than adults.The ruling caused confusion, however. While it said that juveniles committing murder could not receive mandatory sentences of life without parole in 2012 and beyond, it did not address inmates already serving such sentences.
In October 2013, the Pennsylvania Supreme Court stepped into the void. In Cunningham v. Pennsylvania attorney's argued that the U.S. Supreme Court's ruling could not be applied retroactively. Anyone given a mandatory sentence of life without parole who had exhausted all appeals by 2012 would not fall under the federal ruling, the state court said. Advocates were troubled by the notion that the year a person was sentenced would determine whether he or she would face life without parole."The vagaries of timing should not determine if a juvenile should spend the rest of his or her life in prison with no possibility of parole," according to a Juvenile Law Center statement last year.
The center, along with the Defender Association of Philadelphia, appealed the Pennsylvania decision to the U.S. Supreme Court. Monday's nondecision was the result. "This is a surprise, and not a very good one," said Bradley Bridge, an assistant defender with the association. "It's puzzling. "Bridge said Pennsylvania had become the third state to say the U.S. Supreme Court ruling is not retroactive. Six states have gone the other way. Such a split cannot stand for long, said Emily Keller of the Law Center. Bridge agreed, saying it was "intolerable for a citizen of Pennsylvania to be denied relief, while a citizen of Texas [one of the six states that allows the ruling to be retroactive] gets relief. That is not a just result."
At some point, Keller and Bridge said, the U.S. Supreme Court will have to make a ruling that will stand for every state.Hugh Burns, chief of the appeals unit of the Philadelphia District Attorney's Office, agreed that "it's not fair" that "those who take a life after a certain date get a break others do not." But, he added, "law is all about line drawing." More important, Burns said, he takes issue with the U.S. Supreme Court's saying that a juvenile's young brain can't determine right from wrong."The idea that a person's brain isn't developed to understand that murdering someone is wrong and subject to serious penalty is to me very odd," he said.
Pennsylvania has more than 500 people convicted as juveniles and given mandatory life sentences - 300 of them from Philadelphia, advocates say. The United States is the only country that doles out mandatory life sentences to juveniles. And Pennsylvania has 25 percent of such offenders, advocates say - more than any other state or nation.

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PA Supreme Court: Expert on interrogations inadmissible for false confessions

On May 28, the Pennsylvania Supreme Court decided in Commonwealth v. Alicia that expert testimony regarding interrogation techniques that could lead to false confessions is inadmissible at trial, reported The Legal Intelligencer.
The decision seems to be diametrically opposed to the court's decision on the same day abandoning its prior holdings banning expert testimony regarding the accuracy of eyewitness identification, finding that the decision of whether to admit such evidence should be left up to the trial court.
Justice McCaffery, writing for the majority in Alicia, said that while the high court had never previously addressed the admissibility of expert testimony concerning false confessions, it has previously rejected other types of defense expert testimony that infringe on a jury's ability to assess a witness' credibility.
"General expert testimony that certain interrogation techniques have the potential to induce false confessions improperly invites the jury to determine that those particular interrogation techniques were used to elicit the confession in question, and hence to conclude that it should not be considered reliable," McCaffery said.
McCaffery acknowledged that the Indiana Supreme Court, the Florida District Court of Appeals and the U.S. Court of Appeals for the Seventh Circuit have all allowed expert testimony on false confessions.
But McCaffery said he found more compelling the U.S. District Court for the Tenth Circuit's rationale for precluding such testimony in the 2010 case United States v. Benally.
Like the Benally court, McCaffery said allowing expert testimony regarding false confessions is "an impermissible invasion of the jury's role as the exclusive arbiter of credibility."
McCaffery added that allowing defendants to submit expert testimony that certain interrogation techniques have a propensity to elicit false confessions would not be constructive because the prosecution would likely counter with its own expert testimony that the same techniques typically elicit true confessions.
"Ultimately, we believe that the matter of whether appellee's confession is false is best left to the jury's common sense and life experience, after proper development of relevant issues related to, inter alia, the particular circumstances surrounding the elicitation of his confession, using the traditional and time-honored techniques of cross-examination and argument," McCaffery said.
In a footnote, McCaffery addressed his support of the Walker ruling (eyewitness identification), saying "the accuracy of an eyewitness identification is a matter readily distinguishable from the veracity of a confession to a crime."
"In assessing the reliability of an eyewitness identification, the issue is generally not whether the victim or witness is telling the truth—the victim or witness is often entirely and honestly convinced, and convincing to the fact-finder, that he or she has correctly identified the true perpetrator," McCaffery said. "The issue is rather whether the witness' identification is indeed accurate."
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AG investigation of investigation approved by judge

A judge reviewing state Attorney General Kathleen Kane’s investigation of Gov. Tom Corbett's investigation of Jerry Sandusky's child sexual abuse case has approved the report and the document could be released soon, reported the Pittsburgh Tribune-Review.
Kane’s inquiry into why it took Corbett three years to investigate and charge Sandusky needed the judge’s approval because the report contains grand jury testimony, which had expectations of secrecy, according to the Centre Daily Times.
In a meeting  PennLive’s editorial board, which was live-streamed on the Internet, Kane said the report is “nearing completion,” and investigators are dealing with “legalities” they must abide by before the report can be released.
After the report is approved by the judge, those who were interviewed will get a chance to review portions of it. Kane declined to comment about who will get a chance to review the document.  However, it is expected that Gov. Corbett and former assistant attorney general Frank Fina will get to review the report.
Corbett was interviewed last week by the special prosecutor in the case.
Fulfilling an election vow, Kane appointed former federal prosecutor H. Geoffrey Moulton Jr. to probe Corbett’s investigation, which she questioned during her own campaign for attorney general. The issue became a focal point and Kane won in a landslide.
Moulton has since been investigating how previous attorneys general Tom Corbett — who is now governor — and Corbett’s appointed successor, Linda Kelly, handled allegations against Sandusky between 2009 and 2011.
The investigation into Sandusky’s abuse started when a teen, Aaron Fisher, told Clinton County authorities in January 2009 that the former Penn State coach had touched him inappropriately. The case was referred to Centre County’s then-district attorney, Michael Madeira, who referred it to the Attorney General’s Office.
Sandusky was sentenced to at least 30 years in prison and is serving his time in solitary confinement. He maintains his innocence, but has exhausted his appeals to higher courts.
“From the very beginning, I said this report was most important to me and I believe to all of Pennsylvania because it dealt with child sexual abuse,” Kane told PennLive. “To me, making sure our children are protected is the most important thing. If we can do things in a better way, by all means we should look into doing things a better way.”
Kane wouldn’t go into specifics about the report, but she called it factual, fair and complete.
“What is expected from this report is the facts,” she said. “Where we can make a determination we’ll make it, where we can’t, we’ll tell you that as well. At some points it may be left up to the reader to determine what their feeling is, but I can tell you , it’s a very fair and accurate report."
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Read more here: http://www.centredaily.com/2014/06/03/4207666/judge-approves-kanes-sandusky.html?sp=/99/264/&ihp=1#storylink=cpy

What’s wrong with Ohio’s death penalty? Not a thing

Matthew T. Mangino
The Youngstown Vindicator
June 8, 2014
Ohio’s death penalty is back in the news. Federal Judge Gregory Frost has ordered a 2 1/2-month moratorium on executions to figure out what is wrong with the death penalty. The answer is simple — there is nothing wrong with Ohio’s death penalty.
The temporary order delays executions scheduled for July and August while attorneys prepare arguments over the state’s new lethal- injection procedure. Ohio has led the way in lethal injection. In the last five years, Ohio has used a three-drug protocol, moved to a single- drug protocol and now utilizes a two-drug protocol. Along the way, Ohio has utilized a number of different drugs for executions — at times being the first state to use a new drug.
In January, the execution of Dennis McGuire did not go as planned. The execution that was supposed to last about 10 minutes lasted 25 minutes instead. Last month, in Oklahoma Clayton Lockett’s execution went really bad. In fact, the execution was stopped and Lockett later died of a heart attack.
Penalty rhetoric
Judge Frost has been up to his elbows in death- penalty rhetoric dating back to a “botched” execution in 2009. He has used terms like “human experimentation” when talking about Ohio’s lethal injection protocol and “lip service” when talking about the Department of Rehabilitation and Correction’s policy implementation.
In fact, this isn’t the first time in the last five years that Judge Frost imposed an execution moratorium. With that said, Ohio has been at the forefront of execution policy nationwide.
Only Texas has executed more people than Ohio since 2010. That year, chronicled in my book “The Executioner’s Toll, 2010,” Ohio carried out eight executions all on the heels of Judge Frost’s first moratorium.
Ohio’s death penalty works because executions are being carried out. That is not the case in most states and therein lies the problem. In Pennsylvania, there are approximately 193 men and women on death row and that number grows every year. Only four states have more killers on death row.
However, Pennsylvania has executed only three killers since 1978 and all three volunteered to be executed. Since that time, 24 death- row inmates died of natural causes and three committed suicide. The last person executed in Pennsylvania was Philadelphia serial killer Gary Heidnik in 1999.
Death row
Ohio has 143 men and women on death row. In 2010, when Ohio carried out eight executions, the state added an equal amount of offenders to death row with newly imposed death sentences.
In 1994, the heyday of the modern death penalty, there were 328 men and women sentenced to death nationwide. In 2010, there were far fewer offenders sentenced to death, 112, still more than twice the number executed that year.
As I argued in “The Executioner’s Toll, 2010,” few believe that the 3,100 or so men and women on the nation’s death rows will ultimately face execution.
Let’s say that death-penalty verdicts continue at 2010’s pace of 112 per year for the next 10 years. There would be approximately 4,500 men and women on death row. Let’s say that all 32 states with the death penalty executed one offender a month for the next 10 years — that is not entirely realistic since only eight states have more than 120 offenders on death row — at that frantic, and frankly impossible, pace, death row would still be populated.
Arbitrary
Since the reinstatement of the death penalty in 1976, the likelihood that an offender sentenced to death will ultimately be executed is about 1 in 7. The problem with the death penalty isn’t lethal injection or the electric chair and firing squad as some states are considering; the problem is having a criminal sanction that is sparingly sought, rarely imposed, and the act of carrying it out has become so rare that it appears arbitrary.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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The Cautionary Instruction: Lawmakers more ambitious with government reduction bill

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 6, 2014
Pennsylvania has one of the largest and most expensive legislatures in the country. The General Assembly’s annual budget exceeds a quarter of a billion dollars. Those dollars go to pay the salary of 253 legislators and about 2,600 staffers.
New Hampshire has the largest legislature in the country with 424 members, but they are part-timers who make about $100 a year, compared with the $84,000 base salary for Pennsylvania lawmakers.
Proposals to reduce the size of the legislature come up in nearly every legislative session. In 2011, there was a proposal to reduce the House from 203 members to 121 and the Senate from 50 to 30 members.
However, this year some senators were not satisfied with just reducing the number of lawmakers.
“There’s also two other branches of government that need to be reduced also, in my opinion,” said Senate President Pro Tempore Joe Scarnati.

This week, a Senate committee passed resolutions to eliminate 55 legislative seats and several appellate judgeships. Even the executive branch of government was not exempt. The proposed legislation would eliminate the position of Lt. Governor. Proposed constitutional amendments to shrink the size of government across the three branches have been sent to the full Senate for consideration.
Scarnati’s plan would reduce the state Supreme Court from seven to five seats and cap the Superior Court at 11 members. Without a Lt. Governor, Scarnati’s plan provides for a special election to replace a governor who leaves office, with the Senate President Pro Tempore filling in.
Scarnati currently holds that position in the senate and filled the Lt. Governor’s office after Lt. Governor Catherine Baker Knoll died in 2008.
Pennsylvania attorneys and political observers expressed shock and disapproval over Senate bills. “I think it caught a lot of us by surprise that the judiciary was included in that mix,” John J. Hare, chair of the appellate advocacy and post-trial practice group at Marshall Dennehey Warner Coleman & Goggin in Philadelphia told The Legal Intelligencer. “I had no idea that they were going to bring the judiciary into this and I think [cutting judgeships] would be really unfortunate.”
Both reduction measures passed unanimously out of committee -- one bill addressed the House, the other addressed the Senate, judiciary, and lieutenant governor.
Senators said their concerns could be debated without slowing down the lengthy process ahead. A constitutional amendment must first pass the General Assembly in two consecutive legislative sessions, and then clear a voter referendum.
Not everyone is enamored with idea of reducing the size of the legislature. Opponents say the dangers include moving access to state lawmakers farther away from constituents, diluting the representation of rural areas, and the overstated cost savings projections.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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GateHouse: No one immune from random acts of violence

Matthew T. Mangino
GateHouse News Media
June 6, 2014
Twenty-five years ago, Lawrence Sherman, currently the director of the Cambridge Institute of Criminology at Cambridge University and a distinguished university professor at the University of Maryland’s Department of Criminology, told the New York Times that the risk of being killed by a stray bullet “is increasingly a matter of being in the wrong place at the wrong time.’’

If that includes the breakfast table, a bus, picnic or office building, then anyplace can be the wrong place. Last June, in the state of Washington, a stray bullet killed 23-year-old Allyssa Smith during a family picnic. Smith was at her parents’ home for Father’s Day when a stray bullet fired from a rifle rigged like a machine took her life.

Last year, a 14-year-old girl on a New York City bus, D’Asia Robinson, had just left a friend’s birthday party when she was killed by a stray bullet.

Earlier this year, 5-year-old Payton Benson was killed by a stray bullet as she ate breakfast inside her Omaha, Nebraska, home. Police responded to reports of a hail of gunfire around 9:45 a.m. about a block away from Benson’s home. Police found Benson in her home critically wounded.

Last week, Dr. Betty Howard, a Chicago teacher, was killed when she was struck by a stray bullet. Police said Howard was visiting a real estate office around 5:30 p.m. when she was struck by bullets that pierced the building’s wall.

Stray bullets take a senseless toll on neighborhoods. Yet public health officials know little about the phenomenon. The U.S. Centers for Disease Control and Prevention tracks accidental shootings, but they do not account for harm caused by stray bullets, according to the St. Louis Post-Dispatch.

Several years ago a researcher was not satisfied with the lack of information on the scope and magnitude of harm caused by stray bullets. Dr. Garen Wintemute, a professor of emergency medicine at the University of California-Davis, and fellow researchers, using a single year of media reports of shootings from 2008 and 2009, found stray bullets injured or killed 317 people. According to the Post-Dispatch, more than 80 percent of the victims had no idea they were in danger until they were shot, and 40 percent were at home. One in five died, making stray bullets just as lethal as those bullets that strike their intended targets.

This week, Wintemute told NPR that violence is often thought of as disproportionately affecting young men. The victims of stray bullets, however, are incidental to that violence and tend to be proportionate with the general population. He found that more than 30 percent of the victims of stray bullet shootings are children younger than 14. Males and females were affected about equally.

“[It’s] not the age group that we’re used to thinking about, not the gender that we’re used to thinking about when we think about violence,” Wintemute told NPR.

There are a number of ways that stray bullets injure or kill innocent people. Every year with the arrival of hunting season, there are stories of stray bullets causing harm. Even celebratory gunfire can be lethal — shot into the air a bullet must return to the ground. However, 60 percent of the incidents occurred as the result of intentional gunfire.

Sherman’s 25-year-old research noted that those who live in poor neighborhoods, where a significant number of shootings occur, seemed to be at greater risk. In Chicago, outside a school building with “Don’t Shoot” stickers plastered to the walls, the principal, Sherryl Moore-Ollie, recently told the Chicago Tribune when asked about her students’ reaction to violence, “They’ve been desensitized … [t]hey hear shooting every day.”

Unfortunately, some of those bullets go astray, and every one of those students is the potential object of a random act of violence.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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Prison max-outs compromise public safety

A nationwide study by Pew Charitable Trusts finds that 21 percent of Pennsylvania inmates serve there maximum sentence and are often release back into the community without any supervision. Across the county more than 1 in 5 state inmates maxed out their prison terms and were released to their communities without any supervision in 2012, undermining efforts to reduce reoffending rates and improve public safety.
A wide range of laws and policies adopted in the 1980s and ’90s has resulted in a sharp increase in the rate at which inmates serve their full sentences behind bars, leaving no time at the end for parole or probation agencies to monitor their whereabouts and activities or help them transition back into society by providing substance abuse, mental health, or other intervention programs.
“There’s a broad consensus that public safety is best served when offenders have a period of supervision and services when they leave prison,” said Adam Gelb, director of Pew’s public safety performance project. “Yet the trend is toward releasing more and more inmates without any supervision or services whatsoever. Carving out a supervision period from the prison sentence can cut crime and corrections costs.”
Key findings of the report, Max Out: The Rise in Prison Inmates Released Without Supervision, include:

• Between 1990 and 2012, the number of inmates who maxed out their sentences in prison grew 119 percent, from fewer than 50,000 to more than 100,000.
• The max-out rate, the proportion of prisoners released without receiving supervision, was more than 1 in 5, or 22 percent of all releases, in 2012.
• Max-out rates vary widely by state: In Arkansas, California, Louisiana, Michigan, Missouri, Oregon, New Hampshire, and Wisconsin, fewer than 10 percent of inmates were released without supervision in 2012. More than 40 percent of inmates maxed out their prison terms and left without supervision in Florida, Maine, Massachusetts, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, and Utah.
• Nonviolent offenders are driving the increase. In a subset of states with data available by offense type, 20 and 25 percent of drug and property offenders, respectively, were released without supervision in 2000, but those figures grew to 31 and 32 percent, or nearly 1 in 3, in 2011.

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U.S. Supreme Court Remands Excessive-Force Case

Matthew T. Mangino
The Pennsylvania Law Weekly
June 2, 2014
Last month, the U.S. Supreme Court vacated a decision of the U.S. Court of Appeals for the Fifth Circuit. The high court sent the case back, instructing the appeals court to give consideration to the court's recent decision in Tolan v. Cotton, 572 U. S. ___ (2014).
The Tolan decision was only two weeks old when the Supreme Court, on May 19, remanded Thomas v. Nugent, No.13-862. Both Tolan and Thomas were out of the Fifth Circuit and dealt with allegations of excessive force by police—one involving a shooting, the other a tasing.
In Tolan, the Supreme Court said the Fifth Circuit had not given proper weight to evidence offered by Robert Tolan, who sued police after being shot.
In 2008, Jeffrey Cotton, a Texas police officer, shot Tolan in front of Tolan's parents' home. Cotton was under the mistaken belief, due to a clerical error by another officer, that Tolan and another man had stolen a vehicle.
Tolan sued Cotton in federal district court, alleging excessive force in violation of the Fourth Amendment. Cotton filed a motion for summary judgment and argued that he was entitled to qualified immunity. Qualified immunity protects government officials from being sued when their conduct has not violated a clearly established constitutional right.
The district court ruled in favor of Cotton, finding his use of force was not unreasonable and did not violate the Fourth Amendment.
The Fifth Circuit affirmed the lower court decision. The appeals court held that Cotton was entitled to qualified immunity regardless of whether he violated the Fourth Amendment because he did not violate a "clearly established" right.
In support of its ruling, the court cited evidence that would lead a reasonable officer in Cotton's position to believe that Tolan presented an immediate threat to his safety.
For qualified immunity to attach, an official must demonstrate his conduct was objectively reasonable, as in Harlow v. Fitzgerald, 457 U.S. 800 (1982).
In a per curiam opinion, the Supreme Court held that the Fifth Circuit erred in its application of summary judgment. The Supreme Court said the Fifth Circuit improperly sided with the account offered by the police officer. A judge, when deciding an issue raised through a motion for summary judgment, must view the evidence in a light most favorable to the nonmoving party—in this case, the alleged victim of excessive force.
The court vacated the judgment and remanded the case to the Fifth Circuit with instructions to acknowledge and credit evidence in Tolan's favor when determining whether Cotton's actions violated clearly established law.
Two weeks later, when faced with a similar issue in Thomas, the court relied on Tolan to resolve the issue.
The second decision also dates back to 2008, this time in Louisiana. The police arrested a man named Baron Pikes. During his arrest, Pikes was tasered at least eight times. Later, at the police station, Pikes fell ill. He later died.
The officer who repeatedly tasered Pikes, Scott Nugent, was fired and charged with manslaughter. He was found not guilty, but the family of Pikes, namely Latrina D. Thomas, sued Nugent in federal court for excessive force.
Nugent's lawyer argued, as did the police in the Tolan case, that the lawsuit be dismissed because Nugent was acting in his official capacity as a police officer and was entitled to qualified immunity. The trial judge disagreed and allowed the case to move forward to trial. The Fifth Circuit reversed the trial court.
The Fifth Circuit found that lawyers for Pikes' family had failed to prove that repeatedly tasing a restrained suspect in police custody for failing to comply with a police command violated the Fourth Amendment to the U.S. Constitution.
With the Thomas case heading back to the Fifth Circuit for a review of the facts in a light most favorable to the plaintiff, it is worth looking at the law with regard to excessive force—particularly force involving the use of a Taser.
In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court identified three factors that courts must weigh when determining whether law enforcement personnel have used excessive force: "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest."
At least five circuits have found, under certain circumstances, using a Taser on an individual no longer resisting is excessive force. In the Fourth Circuit, repeatedly tasing "an individual who no longer is armed, has been brought to the ground and is no longer actively resisting arrest" constitutes excessive force, per Meyers v. Baltimore County, 713 F.3d 723 (4th Cir. 2013).
The Sixth Circuit held that a policeman used excessive force when he tasered a handcuffed individual a single time, even though the individual was yelling profanities at the officer. The court held that it is "unreasonable to use significant force on a restrained subject even if some level of passive resistance is presented," in Wells v. City of Dearborn Heights, 538 Fed. Appx 631 (6th Cir. 2013).
In Cyrus v. Town of Mukwonago, 624 F.3d 856, 862-63 (7th Cir. 2010), the Seventh Circuit denied summary judgment on a claim of excessive force against officers that repeatedly tasered an individual who did not release his hands for handcuffing.
On the other hand, more than a few circuits have approved the use of a Taser to subdue individuals who resist arrest or refuse to comply with police orders. The Eleventh Circuit held the use of a Taser to "effectuate [an] arrest" was reasonable when the individual was "hostile, belligerent and uncooperative," in Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004). The Tenth Circuit ruled that the use of a Taser to overcome a suspect resisting arrest is reasonable in Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir. 1993).
In Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992), the Sixth Circuit found it was reasonable to use a Taser to subdue a paranoid schizophrenic who locked himself in an apartment and disobeyed police orders to open the door and drop his weapon.
In Pennsylvania, success on a claim of excessive force requires a claimant to defeat qualified immunity. A plaintiff must show a violation of a constitutional or statutory right and whether it would have been clear to a reasonable officer that the conduct in question was unlawful in light of clearly established law.
If an officer can show at least one prong was not met, then qualified immunity applies and the suit is barred, per Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010). 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, The Executioner's Toll, 2010, was recently released by McFarland & Co. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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