The Crime Report: What’s the Matter With the Death Penalty?

Matthew T. Mangino
The Crime Report
July 31, 2014
There have been three “botched” executions across the country in the last six months.
On January 16, Dennis McGuire in Ohio gasped for air for some 25 minutes before succumbing to Ohio’s new two-drug lethal injection protocol.
On April 29, during Clayton D. Lockett’s execution in Oklahoma, he “began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow.” The director of the Oklahoma Department of Corrections halted the execution—Lockett died of a heart attack 43 minutes after the process began.
Just last week in Arizona, the execution of Joseph R. Wood, III began at 1:57 p.m. and he was pronounced dead at 3:49 p.m. The execution did not go as planned.
“I’ve witnessed a number of executions before and I’ve never seen anything like this,” Dale Baich, one of Wood’s attorneys, told The Washington Post. “Nor has an execution that I observed taken this long.”
Stephanie Grisham, spokeswoman for the Arizona attorney general’s office took a contrary position. “I’m telling you he was snoring,” she told  the Arizona Republic. “There was no gasping or snorting. Nothing. He looked like he was asleep.”
Even those witnessing the execution couldn’t agree on what happened.
One thing for sure: the three executions described here were not what Americans have come to expect from lethal injection—the accepted and antiseptic form of state-sponsored death.
Since 2009, when Ohio Governor Ted Strickland stopped Romell Broom’s execution because prison personnel took more than two “painful” hours to search for a suitable vein, executions have been more or less routine, sterile and swift.
Between Broom and McGuire there were 170 lethal injection executions (not to mention two electrocutions and a firing squad) without incident.  All of those executions were uneventful and swift.   For some, it was too swift and too easy.
In researching my book “The Executioner’s Toll, 2010,” I found that some of the victims’ families were struck by the ease with which the condemned slipped into a lethal slumber.
“I think the way he went . . ." a family member said as she paused, breaking into tears, "It was too easy for him."
“It was like laying down and going to sleep," said the relative of another murder victim.
Speaking after his daughter’s killer was executed, an angry father put it this way, “I wish my daughter could have died the way he died today. Wasn't no pain.”
What is different today than in 2010?
As states scrambled to obtain increasingly scare execution drugs, new compounds were being used in new combinations. Within two months of Broom’s failed execution in Ohio, the state carried out a single-drug execution using sodium thiopental.
Prior to Broom, every state used a similar lethal three-drug cocktail to carry out executions. But, in 2010, Oklahoma changed the drugs in its execution protocol to include midazolam; in 2011 Ohio switched to a single dose of pentobarbital; in 2013 Florida changed the drugs in its three drug protocol; in 2014 Ohio switched to a two-drug protocol to include midazolam; this year Arizona switched its protocol to include midazolam.
Lethal injection has been around since 1982, when Texas first used the method touted as the most humane way to carry out an execution.  The U.S. Supreme Court agreed.  In 2008, the Supreme Court decided in Baze v. Rees. The opinion written by Chief Justice John Roberts ruled that lethal injection was humane and constitutional.
However, Justice John Paul Stevens made an interesting observation in a concurring opinion in Baze. “I am now convinced,” he wrote, “that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.”
The paralytic agent was added to the original three drug protocol not because it made the execution more humane for the condemned offender, but because it made the execution more tolerable for witnesses.
State officials did not want the inmate to squirm, gyrate and writhe during the process—offending the sensibilities of those observing.
Should states be concerned with those sensibilities?
Just before Woods’ execution in Arizona, U.S. 9th Circuit Court Chief Judge Alex Kozinski dissented to an order halting his execution.  He wrote: "Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and beautiful—like something any one of us might experience in our final moments."
And he added:  “Executions are, in fact, brutal, savage events, and nothing the state tries to do can mask that reality.”
Kosinski told the Los Angeles Times he would scrap lethal injection for other forms of execution.
"I personally think we should go to the guillotine, but shooting is probably the right way to go.”
The guillotine was quick and "pretty much foolproof," he said, but probably would not be accepted by the public. A firing squad would be "messy but effective."
The guillotine has never been used in the U.S. in a state sanctioned execution. However, the firing squad is not that far-fetched. Ronnie Lee Gardner was executed by firing squad in Utah in 2010.  In fact, Deborah W. Denno, a law professor at Fordham University and an expert on the death penalty told the New York Times the most humane way to carry out the death penalty is through the use of a firing squad.
Denno said the firing squad is quick, effective and affordable.
”It’s the most humane procedure,” he  said.
Earlier this month, U.S. District Judge Cormac Carney ruled in Jones v. Chappell that California's death penalty violates the Eighth Amendment ban on cruel and unusual punishment, reported the Los Angles Times. The state’s death penalty, he held, is arbitrary and no longer serves the purposes of deterrence and retribution because of systemic delays.
Has the death penalty come full circle?
In Furman v. Georgia, the 1972 decision that struck down the death penalty, Justice Potter Stewart wrote: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”
Justice Potter further noted, “I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."
Carrying out an execution today is as freakishly arbitrary as imposing the death penalty was in 1972.  There are about 742 inmates on California’s death row, a state that has not carried out an execution in more than eight years.
If one of those inmates is suddenly scheduled for execution—wouldn’t that be a lot like being struck by lightning?
 
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 & Company. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

Paper: Vast majority of executed offenders possess significant functional deficits

The overwhelming majority of those facing execution today have what the court termed in Hall v. Florida to be diminished culpability, wrote Harvard professor Charles J. Ogeltree, Jr. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows. The Failure of Mitigation?, a new study by Robert J. Smith, Sophie Cull and Zoë Robinson, published in Hastings Law Journal, of the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits.

One-third of the offenders had intellectual disabilities, borderline intellectual function or traumatic brain injuries, a similarly debilitating impairment. More than half of the 100 had a severe mental illness such as schizophrenia, post-traumatic stress disorder or psychosis.
The Smith, Cull and Robinson concluded that the vast majority of executed offenders possess significant functional deficits.
To read more Click Here

Mangino commentary on WYSU-FM

Listen to my commentary on the plight of the mentally ill in prison on National Public Radio affiliate WYSU-FM (88.5) at Youngstown State University.  Click HERE to listen.

Mangino talks death penalty with Antonio Mora on Al Jazeera America

Watch my interview with Antonio Mora host of Consider This on Al Jazeera America.  Click HERE to watch the interview.

California death penalty decision unlikely to sway U.S. Supreme Court

A federal judge's decision striking down California's death penalty would be unlikely to receive a warm reception from the U.S. Supreme Court, which repeatedly has turned away similar challenges during the past 20 years, according to The National Law Journal.
U.S. District Judge Cormac Carney of Santa Ana, Calif., ruled on July 16 in Jones v. Chappell that the state's death penalty violates the Eighth Amendment ban on cruel and unusual punishment. The state’s death penalty, he held, is arbitrary and no longer serves the purposes of deterrence and retribution because of systemic delays.
Those delays exceed 25 years on average, said Carney, who was appointed by President George W. Bush, and "are inherent to California's dysfunctional death penalty system, not the result of individual inmates' delay tactics, except perhaps in isolated cases."
The national average of time to execution was an estimated 12.5 years between 2000 and 2012. In 2012, the delay increased to 15.8 years, according to the U.S. Department of Justice.
California Attorney General Kamala Harris had yet to announce whether she would appeal to the U.S. Court of Appeals for the Ninth Circuit.
"It doesn’t totally surprise me that every few years a judge will speak honestly about what's going on," said death penalty litigator Bryan Stevenson of the Equal Justice Initiative. "Although some people would disagree with his legal conclusion, most people don’t disagree with his analysis of how things are functioning."
Carney's decision differed from rulings by other state and federal judges who have identified various problems with death sentences, said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty.
"The judge here has pulled together all of the ways the system is dysfunctional," she said. "He is not challenging the policy per se; he is saying that in practice, this isn't working in a constitutional way. His analysis is applicable to the rest of the country. It has implications certainly for the Supreme Court, but also for policy analysis."
In his 29-page Jones decision, Carney wrote that since 1978, when California voters restored the death penalty, more than 900 people have been sentenced to death. Of that number, he said, 13 have been executed.
In my book The Executioner's Toll, 2010 I made similar argument about the arbitrary way in which the death penalty is carried out. 
To read more Click Here

GateHouse: ‘Ban the Box’ provides opportunity for ex-offenders

Matthew T. Mangino
GateHouse News Service
July 25, 2014


A prison term should not mean a lifetime of misfortune for a former offender. Yet that is what the criminal justice system produces every day. Former offenders are saddled for life with criminal records that make employment, education and public benefits difficult, if not impossible, to obtain.

Job seekers with criminal records have always struggled to find work. It is not just violent offenders and felons who are rejected by employers. A misdemeanor or an old conviction can be enough to cost a person a chance at a job.

As “tough-on-crime” politicians pressed for draconian penalties and ever-widening collateral sanctions, more and more offenders seeking to enter the workforce have been strapped with debilitating limitations. About 70 million people in the U.S. have been convicted of a crime.

A conviction has real and lasting consequences. Forbes Magazine reported that a survey by the Society for Human Resources Management found that 96 percent of human resource professionals say their companies perform criminal background checks on applicants.

Many criminal justice practitioners point to the lack of employment opportunities for returning prisoners as the most important obstacle to a successful reentry. A failed re-entry means a return to prison, soaring taxpayer funded corrections costs and increased victimization.

Some states, and cities, are trying to do something to eliminate barriers for former offenders seeking employment.

There is a growing movement called “Ban the Box,” a reference to the check box on a job application that asks, “Have you ever been convicted of a crime?” Having the checkbox may prevent many ex-offenders from getting a fair shot at a job.

Some employers immediately set aside an applicant who checks the box. This prevents prospective employees from having an opportunity to sell themselves in an interview and it prevents prospective employers from evaluating an applicant on the merits.

Ban the Box will not prevent employers from checking an applicant’s criminal record. The measure merely postpones the review to later in the assessment process to give former offenders a chance at getting a job.

Four states — Hawaii, Massachusetts, Minnesota and Rhode Island — have passed laws that force private employers to remove the question regarding conviction history from job applications, according to National Employment Law Project (NELP).

Eight more states — California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nebraska, New Mexico — have removed the question from applications for public or state jobs.

In addition, more than 60 cities have banned the box, including Baltimore, Louisville and Indianapolis. According NELP, New York City is considering its own version, called the NYC Fair Chance Act.

Federal law already provides some protection for former offenders seeking employment, although the law does not prohibit employers from asking about an applicant’s criminal history.

The U.S. Equal Employment Opportunity Commission prohibits employers from discriminating when they use criminal history information. The Civil Rights Act of 1964 prohibits employers from treating people with similar criminal records differently because of their gender, religion, race or national origin.

Like laws in Pennsylvania, New York and Wisconsin, federal law prohibits an employer from using an applicant’s criminal record in employment decisions if the conviction does not help the employer accurately decide if the person is likely to be a responsible, reliable or safe employee.

Is America a country where people get second chances or a country where a single mistake follows a person for life?

There is a lot of work to be done to provide former offenders with a meaningful opportunity to earning a living wage. Progress is being made. This week, Washington, D.C., banned the box, Illinois’ governor signed a similar law and, according to National Public Radio, Walmart and Target have eliminated the criminal history question from their employment applications.

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.
Visit the Column

Mangino interviewed on WKBN-TV about the death penalty

Watch the interview on WKBN-TV


YOUNGSTOWN, Ohio (WKBN) – With Arizona now having what some are calling a botched execution under its belt, and sharing in other state’s trials with lethal injection, more states are being forced to make experimental lethal cocktails to kill their most violent offenders.

In Arizona Wednesday, inmate Joseph Rudolph Wood was the latest to be put to death with a new mixture of drugs. States had to come up with an alternative after a Britain pharmaceutical company withdrew their concoction for use in executions last year.
Eyewitnesses say they could see and hear Wood breathing and gasping for air during the nearly two hour ordeal.
“He closed his eyes. He went to sleep, and then he started gasping and did so for more than an hour and a half,” said a witness.
Arizona’s botched execution is the third one of the year. The others were in Oklahoma and here in Ohio. A federal judge in Ohio ordered a temporary ban on executions earlier this year after convicted killer Dennis McGuire gasped for 26 minutes during his execution in January.
Former Lawrence County District Attorney Matt Mangino says states need to find an alternative quick.
“To have that happen and continue to happen in such a short space of time is a concern,” Mangino said. “The 8^th Amendment requires these executions to be carried humanely, but the question is what is humane.”
Some family members of victims are less concerned about the condemned killers’ rights, or the humane aspect of their deaths.
“Everyone is more worried about did he suffer? Who really suffered were my dad and my sister when they were killed,” said Jeanne Brown.
Brown’s father and sister, Eugene and Debra Dietz, were shot to death in 1989 at the family’s automotive shop in Tucson.
How soon capital punishment states will find a new solution or right mixture is anyone’s guess. But it may not come in time for Ohio’s next execution scheduled for September 18, 2014

The Cautionary Instruction: Pittsburgh Police Department's morale problem

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
July 25, 2014
"What's going on in Pittsburgh is a crisis in confidence," said Councilman Rev. Ricky Burgess during acting Public Safety Director Stephen Bucar's confirmation hearing this week.
"I absolutely agree with you that there's a confidence problem in some parts of the city," responded Bucar. "In attending these police chief meetings, I can see some of the anger and frustration in some areas of the city."
Bucar acknowledged low morale at the police bureau, but he was quick to mention that the department is a “very professional organization.”
Bucar should be applauded for acknowledging the problem, but the mere fact that he brought it up points to the work needed to rectify the problem. President Dwight D. Eisenhower, when he was General Eisenhower was constantly concerned with troop morale. He once said, "The best morale exists when you never hear the word mentioned. When you hear a lot of talk about it, it's usually lousy."
What Eisenhower meant was you cannot just talk about improving morale you’ve got to do something about it.
Bucar went on to say, the department has a “small number of bad seeds” and they get all the publicity. “It taints and paints with a broad brush,” he said, adding that public perception of officers affects their work.
Although research on police morale has evolved significantly over the years, almost all of the early research in this field focused on operational stress that officers face. The source of low morale was based on the premise that law enforcement professionals are placed in continuously difficult situations and are required to deal with these situations in the course of their duties.
What has evolved recently is the theory of organizational stress. A study of more than 2,500 officers indicated that “the findings reveal the majority of the 10 greatest sources of anger and frustration among officers have a crucial common denominator, their administrators.”
Low morale, whether operation or organizational, has consequences. A morale problem can increase turnover, absenteeism and low productivity — all of which make neighborhoods more vulnerable. Low morale can also spur civil liability which depletes resources and drives up taxpayer costs. Finally, and most tragic, low morale drives up officer suicide.
Bucar says the way forward is to build leadership that instills respect in the rank and file, and hire a new chief who not only can inspire officers but successfully reach out to communities that have seen a deteriorating relationship with the department.
“It can’t be somebody who hasn’t earned that respect by being in law enforcement for a number of years,” he said. “I have to build that trust and I have to be confident that my police chief shares that interest in drilling down in those communities that don’t trust the police.”

---

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.
Visit Ipso Facto

Mangino interviewed on WFMJ-TV regarding Pennsylvania's tougher child abuse laws

Watch the interview on WFMJ-TV.           

(WFMJ-TV) Pennsylvania's new laws that just took effect in January, will come into play when a mother accused of a severe case of child abuse comes to trial.
Mary Rader, and her parents Dennis and Deana Beighley, who live together in a home in Greenville could receive as much as 20 years in prison if they are found guilty of aggravated assault and other criminal charges.
Police reports state Rader's seven year old son weighed about 25 pounds and was described as a human skeleton, by doctors.
Attorney Matthew Mangino said state lawmakers toughened Pennsylvania's laws after former Penn State University football coach, Jerry Sandusky, was convicted of abusing 10 boys. In the past teachers, coaches and others were not included in the definition of child abuser. Laws were also expanded to include acts of omission.
"So, if you are in a home where you know a child is being abused and you let that abuse continue, that omission could make you responsible as well," said Mangino.
Although Pennsylvania is one of 10 states without a statute specifically addressing torture, Mangino said the laws have always been a powerful tool that allows the county District Attorney to bring serious charges.
"There are certainly situations where torture wouldn't amount to aggravated assault. In this case, prosecutors are pursuing the most serious charge they can with the most serious penalties that are available," said Mangino.
In addition, people accused of abusing a child can be criminally charged whether or not they intended to harm that child.
The boy has gained significant weight but faces serious hurdles due to the alleged neglect.
A preliminary hearing for Rader and the Beighleys is scheduled for July 30.

Another botched execution, Arizona execution takes 2 hours

The 26th execution of 2014
A convicted murderer in Arizona gasped and snorted for more than 90 minutes after a lethal injection July 23, 2014, his attorneys and witnesses said, dying in a botched execution that prompted the governor to order an investigation and the state Supreme Court to mandate that the materials used in the procedure be preserved, reported the Los Angeles Times.
Joseph Rudolph Wood III's execution almost certainly will reinvigorate the national debate over the death penalty. He received an injection at 1:52 p.m. at the Arizona State Prison Complex in Florence. The execution became so prolonged that reporters witnessing the execution counted several hundred of his wheezes before he was finally declared dead at 3:49 p.m. — nearly two hours after the procedure began.
The incident comes in a year in which lethal injections had already triggered controversy over botched procedures and secrecy.

Wood had fought without success to get more information about the drugs and the expertise of his executioners. His request, which was rejected by the U.S. Supreme Court, prompted one prominent appellate judge to call for the return of the firing squad.
The Arizona Supreme Court ordered officials to preserve the remaining drugs used in his execution and the drug labels.
Gov. Jan Brewer ordered the state Department of Corrections to conduct a full review, saying she was “concerned” about the length of time it took Wood to die.
“One thing is certain, however, inmate Wood died in a lawful manner, and by eyewitness and medical accounts he did not suffer,” Brewer said in a statement. “This is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims — and the lifetime of suffering he has caused their family.”
Wood, 55, was sentenced to death in 1991 for the August 1989 shooting deaths of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, in Tucson.
“This man conducted a horrific murder, and you guys are going, ‘Let's worry about the drugs,'” Richard Brown, Debra Dietz's brother-in-law, told reporters. “Why didn't they give him a bullet, why didn't we give him Drano?”
Wood's last words were to his victims' family, according to an Associated Press reporter who witnessed the execution: “I take comfort knowing today my pain stops, and I said a prayer that on this or any other day you may find peace in all of your hearts and may God forgive you all.”
It took so long for Wood to die after receiving an injection of midazolam combined with hydromorphone that his attorneys filed emergency appeals to save his life.

“At 1:57 p.m [officials] reported that Mr. Wood was sedated, but at 2:02 he began to breathe,” said the legal filing in federal court from public defender Jon M. Sands. “At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. ... staff rechecked for sedation. He is still alive.”
A Wood attorney also went to the state Supreme Court, which was conducting a hearing by telephone when he was pronounced dead.
The question of whether he suffered divided those who watched the procedure.
Another attorney for Wood, Dale A. Baich, was among them. He said that during the 1 hour and 40 minutes Wood was gasping and snorting, he could not tell whether he was conscious. “There was no sound in the witness room, so we could not hear,” he said.
A spokeswoman for the Arizona attorney general's office who was also a witness disputed that. “There was no gasping of air. There was snoring,” Stephanie Grisham said. “He just laid there. It was quite peaceful.”    
Wood's execution revived memories of those in Ohio and Oklahoma this year.
Ohio used the same drug combination to execute Dennis McGuire in January. Witnesses said that “McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes, with his chest heaving and his fist clenched.” Ohio executions are on hold while a federal court reviews the state's execution protocol.
Then, in April, Oklahoma murderer Clayton Lockett die bout d of a heart attack 43 minutes after his execution began — and after the state had called off his execution as he writhed and gasped. Details about the lethal drugs and those who administer them are kept secret in many states.
To read more Click Here

Federal Judge Calls for Firing Squad to Carry Out Executions

Killing people is a brutal and messy business, and if Americans can't deal with that, they shouldn't be condemning people to death, said a top federal judge, according to the website Newser. In a strongly worded dissent in an Arizona lethal-injection case, Alex Kozinski, chief judge of the Ninth US Circuit Court of Appeals, calls the current system "inherently flawed" and says states that want to execute inmates should return to more "primitive—and foolproof—methods" of execution, NBC reports. "The guillotine is probably best but seems inconsistent with our national ethos," he writes. "And the electric chair, hanging, and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or 10 large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time."
Kozinski says the switch to lethal injections in the '70s was misguided, the Guardian reports. "Subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure," he writes, adding that drugs are used "to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. … But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality."
The use of a firing squad is not far-fetched.  In my book, The Executioner's Toll, 2010 I chronicled the execution of Ronnie Lee Gardner whose 2010 execution in Utah was carried out by firing squad.

To read more Click Here

'Stand Your Ground' on trial in Detroit

Jury selection has begun in the murder trial of Theodore Wafer, a 55-year-old Dearborn Heights, Michigan homeowner charged in the shooting death of 19-year-old Detroit native Renisha McBride last year and whose case has grabbed national headlines drawing comparisons to the racially charged Trayvon Martin case in Florida, reported the Detroit News. Like the Martin case, shooter is white and a the victim black.

Wafer is charged with second-degree murder, manslaughter and felony use of a firearm in McBride’s death. Authorities say Wafer shot McBride in the face with a shotgun as she knocked on the front door to this home in the early morning on Nov. 2, following a car accident. The home is on the Dearborn Heights and Detroit border.

Police say they received a 911 call around 4:42 a.m. reporting a fatal shooting.

“I just shot somebody on my front porch with a shotgun, banging on my door,” Wafer said on the 911 call. Wafer’s lawyers have said he believed McBride was an intruder.

To read more Click Here

FedEx Indicted on Drug Distribution Charges

FedEx Corp. was indicted on charges of shipping illegal drugs to online pharmacies that ended up in the hands of dealers and addicts. reported the National Law Journal.
The indictment, brought by a federal grand jury in San Francisco, says FedEx has been shipping controlled substances and misbranded prescription drugs, such as Ambien and Diazepam, for illegal Internet pharmacies since 2000. FedEx continued the activities despite warnings from the Drug Enforcement Agency, the Food and Drug Administration and members of Congress in 2004.
“The advent of Internet pharmacies allowed the cheap and easy distribution of massive amounts of illegal prescription drugs to every corner of the United States, while allowing perpetrators to conceal their identities through the anonymity the Internet provides,” U.S. Attorney Melinda Haag said. “This indictment highlights the importance of holding corporations that knowingly enable illegal activity responsible for their role in aiding criminal behavior.”
The indictment alleges conspiracy and distribution of controlled substances and misbranded drugs.
According to federal prosecutors, FedEx couriers in Kentucky, Tennessee and Virginia had told senior management they feared for their safety, reporting that customers had stopped their trucks on the road, or jumped on them, demanding pills.
The indictment specifically names two online pharmacies, saying they fill orders without requiring a prescription from a legitimate physician.
Prosecutors want FedEx, which is expected to appear in court on July 29, to forfeit $820 million in proceeds from the illegal shipments, according to the indictment.
Last year, United Parcel Service Inc. settled similar allegations for $40 million.
To read more Click Here

Missouri executes man who killed three people

The 25th Execution of 2014


Missouri inmate John Middleton was executed on July 16, 2014. His execution for the murders of Alfred Pinegar, Randy Hamilton and Stacey Hodge in Northwest Missouri in 1995 was scheduled to have happened at 12:01 Wednesday morning but was delayed through the day by various court filings.


He died peacefully at 7:06 p.m., strapped to a gurney in the Bonne Terre prison’s death chamber after a frantic two-day effort by his attorneys to save his life.


"You are killing an innocent man,” he said in his last statement.

Middleton barely moved as the lethal injection of pentobarbital was administered, turning his head slightly to the right after looking toward three members of his family when the curtains on the execution chambers windows were opened.  He showed no signs of distress or discomfort.

“Nineteen years seems like a long time to wait for justice,” said Michael Black, an uncle of Alfred Pinegar, after the execution, “It’s a lifetime for a little girl who had to grow up without her father…Our family has waited all this time, never forgetting that our son, grandson, uncle, nephew, father and best friend is not with us.”

“In those 19 years, we, as a family, have had to live with the thoughts of John Middleton being able to enjoy a meal, the smell of spring in the air or any number of simple pleasures,” he continued, “These are things that Alfred, Randy and Stacey cannot enjoy . These simple things we cannot share with Alfred.”

Black said he can go to Pinegar’s grave “and tell him it’s done now; he has finally been punished for his crimes.”

Middleton, a methamphetamine user and dealer in northwest Missouri, murdered the three, considering them “snitches” who had informed law enforcement about his meth dealings.

To read more Click Here

GateHouse: ‘Mayhem’ in Chicago, not what it seems

Matthew T. Mangino
GateHouse News Service
July 18, 2014
The July Fourth weekend was a bloodbath in Chicago. There were 82 shootings and 16 people killed. The shootings brought unwanted national attention to the nation’s third largest city. The attention was not only unwanted but unwarranted.

A look at FBI crime statistics reveals that Chicago has been at or near the top of U.S. cities in the number of annual murders. In 2012, Chicago got the distinction of being the nation’s “Murder Capital” when the city led the nation with 500 murders. Over the last 30 years, Chicago has been among the top three cities with the most murders.

All of that sounds bad. The raw numbers cast a shadow over the city as though it were a killing zone, and everyone living in Chicago or passing through is in danger. According to the Pew Research Center, about 2.7 million people live in Chicago, more than any other city except New York and Los Angeles. The more people, the more murders. Looking at the total number of homicides in a city is too simplistic. It is unfair to label a city as the murder capital without considering the size and composition of the city.

Adjust the raw numbers for population size and determine the murder rate per 100,000 people, and a Chicago’s violence problem looks very different.

Chicago’s murder rate of 18.5 per 100,000 people came in 21st nationwide. According to Pew, that number nearly quadruples the national average of 4.7 but is nowhere near the highest in the country. Flint, Michigan, had the highest murder rate of any sizeable U.S. city. In 2012, there were 62 murders per 100,000 people.

Although Chicago’s murder rate is still high, the city has shown substantial improvement. In 1994 there were 928 murders in the city. According to the Chicago Tribune, that number has been reduced by more than half. There were 440 murders last year.

A bloody stretch like the July Fourth holiday, and the media frenzy that ensued, reinforces the notion of Chicago as the USA’s murder capital and perpetuates the city’s violent reputation, but as National Public Radio suggested, “It’s a particularly gruesome bit of statistical noise.”

“It was an awful, awful horrific weekend,” Yale University Professor Andrew U. Papachristos told NPR. “But you cannot predict a trend based on a weekend. There are spikes and drops. It never goes down in a straight line.”

In fact, in a paper published last year, “Overview: 48 Years of Crime in Chicago,” Papachristos wrote, “Chicago has seen impressive declines in crime over the last four and a half decades … the overall levels of crime and violence have fallen to record lows.”

Papachristos also points to what he calls “the crime gap” — the huge disparity in homicide rates in different areas of Chicago, which is true for most major cities. “Even though the numbers in Chicago are what they are, the gap between the worst neighborhoods and the best neighborhoods is massive,” he told NPR. Papachristos’ research found that between 2000 and 2010, the murder rate for Jefferson Park on Chicago’s Northwest side was about 3.1 per 100,000 residents. In West Garfield Park, on the West Side, the homicide rate was an astounding 64 per 100,000.

In 2012, there were 14,827 murders nationwide — about two murders an hour. That was a slight increase from 2011 but an unprecedented decrease from the high point of 24,700 in 1991.

Criminologists continue to debate the reason for the decline. Theories abound from a decline in the demand for crack cocaine, technological advancements, policing strategies, incarceration rates, even abortion and the decline of lead in the air.

The bottom line — regardless of how the media portrays it, Chicago — and America — are much safer places than they used to be.

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.
Visit The Column

The Cautionary Instruction: California death penalty struck down

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 18, 2014
A Federal Judge struck down California's death penalty. US District Judge Cormac Carney found that lengthy delays in carrying out the death penalty amounted to a violation of the Eight Amendment’s ban on cruel and unusual punishment.
Judge Carney wrote:

Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed.

My book The Executioner's Toll, 2010, released in April made those very arguments:

Let's say that death penalty verdicts continue at 2010's pace of 112 per year for the next ten 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 ten years; these occurrences are not completely realistic since only eight states have more than 120 offenders on death row. After ten years at that frantic, and frankly impossible, pace, there would be 4,300 executions, still leaving about 200 people on death row. Carrying out an execution today is as freakishly arbitrary as imposing the death penalty was in 1972. If you are one of 697 inmates on California’s death row, a state that has not carried out an execution in five years, and suddenly you are scheduled for execution — that is a lot like being struck by lightning.

The death penalty has been a permissible form of punishment for certain crimes in the United States throughout the nation's history, with the first recorded case occurring in 1608, according to Jurist at the University of Pittsburgh School of Law.
The Supreme Court has held on numerous occasions that state proscription of the death penalty is not a violation of the Eighth Amendment's ban on cruel and unusual punishment. The court has also held, however, that the Eighth Amendment does impose limitations on when and how states may use the death penalty.
The most recent Gallup Poll on the death penalty has support at about 60 percent, down from a high in 1994 of 80 percent. That’s not to say that 60 percent is not a significant number or that 32 of 50 states with the death penalty is not a substantial majority. But, unequivocally the death penalty is trending downward.

---

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.
Visit Ipso Facto

California Death Penalty Struck Down

A Federal Judge struck down California's death penalty. US District Judge Cormac Carney found that the lengthy delays create uncertainty for death row inmates, amounting to cruel and unusual punishment. 

Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed.

My book The Executioner's Toll, 2010, released in April made those very arguments:

 

Let's say that death penalty verdicts continue at 2010's pace of 112 per year for the next ten years. There would be approximately 4,500 men and women on death row. Let's say that all 34 states with the death penalty executed one offender a month for the next ten years; these occurrences are not completely realistic since only eight states have more than 120 offenders on death row.  After ten years at that frantic, and frankly impossible, pace, there would be 4,300 executions, still leaving about 200 people on death row.

Carrying out an execution today is as freakishly arbitrary as imposing the death penalty was in 1972.  If you are one of 697 inmates on California’s death row, a state that has not carried out an execution in five years, and suddenly you are scheduled for execution—that is a lot like being struck by lightning.

Former justice releases plan for judicial selection

Justice at Stake applauded the recent release by its Honorary Chair, Supreme Court Justice Sandra Day O’Connor, of her advancement of a model for choosing state judges. The plan, “The O’Connor Judicial Selection Plan,” is the culmination of a years-long study on judicial selection conducted by the Institute for the Advancement of the American Legal System (IAALS) and Justice O’Connor. The plan includes “a judicial nominating commission to screen judicial applicants and identify the best qualified candidates, appointment by the governor of one of those candidates, broad-based and objective evaluation of judges’ performance on the bench, and periodic retention elections,” according to an announcement by Justice O’Connor and IAALS. 
“Justice O’Connor has advocated tirelessly for fair and impartial courts, and is renowned for her leadership role in this area,” said Liz Seaton, Deputy Executive Director of Justice at Stake. “We are extremely proud that today, she and our partner group, IAALS, have released a plan that seeks to improve the U.S. justice system. We applaud this latest, outstanding achievement in a distinguished career and encourage everyone to read it.”
Judicial selection plans like the one released today are among reforms Justice at Stake supports as a means of reducing the influence of money and politics in judicial selection and ensuring the advancement of the best-qualified candidates to state high courts.  

NYPD using cutting-edge technology to solve crimes

According to the New York Daily News here is how NYPD uses technology to solve crimes. At a recent CompStat session  bullet cartridges found at several crime scenes over the prior two months were matched to one gun.
Surveillance cameras at multiple crime scenes revealed the same vehicle present at each scene. From there they tied the vehicle to an owner, and soon enough to a suspect.

All types of technology are now in play.

The NYPD recently provided the Daily News with an unprecedented look at its 21st century arsenal, which includes: 

• Thousands of security cameras scattered throughout the city linked together in a network called the Domain Awareness System (DAS). 

• Records of hundreds of thousands of license plate numbers scanned and pinned to specific locations at specific times. 

• Social media posts bragging about criminal behavior. 

• Facial recognition technology that matches facial characteristics of potential suspects to images in a massive NYPD database. 

• Improved ballistics capability that allows cops to quickly identify the source of a bullet. 

• Prosecutors in Manhattan, Brooklyn and Staten Island have created crime strategies units, using data to identify ties between crimes. Authorities can also map the crime to spot trends, quality of life issues or gang activity. 

• A system of sensors the NYPD plans to install that would detect gunshots — even when residents don’t report the shootings. Cops can then sync the sensors with cameras to capture footage of the crime. 

• Last week, a select group of cops answered calls with Microsoft tablet computers in hand that can instantly tap into the criminal history at an address — including residents with outstanding warrants. 

The department also has set aside $1.5 million for a sound sensor system called Shotspot that captures gunshots at specific locations. That allows police to respond to shots even if no one calls 911. 

To read more Click Here

The Vindicator: More time to install GPS

Matthew T. Mangino
The Youngstown Vindicator
July 6, 2014
Last week a new state court rule of procedure, proposed by the Ohio Supreme Court, took effect. The rule gives prosecutors and law enforcement up to 10 days, instead of three days, to install an electronic Global Positioning System (GPS) device to track a person, vehicle, container or package.
GPS is a network of global navigation satellites operated and maintained by the U.S. government. The space-based system was set up to enhance navigational systems. GPS can now provide accurate positional data at any given time, in any weather condition, anywhere on Earth. This data may be freely obtained using a GPS receiver. The technology is so widely available that many new vehicles, and all smartphones, come with GPS for everyday use.
Little fanfare
The Ohio rule was adopted with little fanfare. The Ohio Constitution requires that Rules of Practice and Procedure be filed with the General Assembly. The rule could have been blocked if the General Assembly specifically objected to the change. Legislators are not in Columbus and won’t be again until the fall. The rule became effective July 1.
Two years ago, the U.S. Supreme Court ruled that police must obtain a search warrant before attaching an electronic tracking device to a vehicle. Ohio’s new rule complies with the Supreme Court’s directive. However, it provides law enforcement with an advantage the Supreme Court refused to acknowledge.
When the Supreme Court decided United States v. Jones, 565 U.S. ___ (2012), the justices unanimously ruled that the police violated the U.S. Constitution when they placed a GPS device on a suspect’s car and monitored the vehicle’s movements. The police had obtained a warrant before placing the device on Jones’ vehicle.
The Jones case began in 2004. At that time, a law enforcement task force began investigating Jones, a nightclub owner, for alleged cocaine trafficking.
According to Law.com, the task force obtained a warrant and covertly installed a GPS device on Jones’ Jeep Grand Cherokee. However, the task force installed the device one day after the expiration of the warrant. Using information obtained from the device, the task force was able to locate Jones and obtain surveillance photos and videos at a suspected drug house.

Ohio’s new rule extends the life of a warrant. A warrant should be reasonable with regard to time and scope. Ohio has, without much objection, tripled the lifespan of a warrant authorizing a device to track the whereabouts of the target of an investigation.
Franklin County Prosecutor Ron O’Brien told the Columbus Dispatch that the three-day rule has been in effect for about 40 years, starting well before the development of sophisticated electronic devices to track either a package or a vehicle.
“On occasion, once you develop a case, a car goes missing and you can’t find it within three days,” O’Brien said. “Then we would have to go get a new warrant.”
Sixty-five years ago, the U.S. Supreme Court said that the Fourth Amendment doesn’t deny police officers the discretion to draw an inference from evidence; it simply ensures that inferences will be reviewed by a “detached magistrate.”
Stale warrant
The detached magistrate’s review is essential to ensure the protections of the Fourth Amendment. A fundamental protection for those suspected of a crime is that a stale — untimely — warrant will not be honored.
The Ohio Supreme Court has now precluded the detached magistrate from determining how much time is reasonable as it relates to carrying out the directives of a warrant. The U.S. Supreme Court was offended by a stale warrant in 2012—Ohio now intends to avoid the staleness issue altogether.
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 @MatthewTMangino.
Visit The Vindictor

Florida executes man for killing 11-year-old girl

The 24th Execution of 2014

A man who confessed to the rape and murder of an 11-year-old girl was executed by lethal injection on July 10, reported the Orlando Sentinel.

Eddie Wayne Davis, 45, was sentenced to death in 1995 after he admitted to taking the girl from her mother's home, sexually assaulting and strangling her.

His death follows a string of executions in the U.S. South last month, including those of two other men in Florida and Georgia, in the wake of a botched Oklahoma execution in April that sparked an uproar among death penalty opponents.

Davis confessed three times to the murder of Kimberly Waters, who was found strangled in a dumpster in 1994. He was 25 years old at the time of her killing, but his defense team claimed that he was mentally of a juvenile.

Prison authorities said Davis was calm as he awaited his fate. He met with his mother and a Catholic spiritual adviser during the day before eating his last meal, and issued no final statement.

Davis is the seventh person executed in Florida this year, matching the total number of executions in 2013. The state has not seen more executions in a single year since 1984, when eight prisoners were put to death, according to the Department of Corrections.

The Florida Supreme Court rejected Davis' claim that a metabolic blood disorder known as porphyria might cause him to have a painful reaction to midazolam, the first of three drugs used by the state in executing convicted killers.

Another convicted murderer in Georgia had his death sentence, also due to be carried out on July 10, commuted to life imprisonment by the state Board of Pardons and Paroles. Tommy Lee Waldrip, 68, was convicted of the 1991 shooting death of a man who had been scheduled to testify against his son in an armed robbery trial.

It was the fifth death sentence commuted by the Georgia Parole Board since 2002 and the first since April 2012.

To read more Click Here

GateHouse: Overdose the leading cause of injury death

Matthew T. Mangino
GateHouse News Service
July 11, 2014
Vermont Gov. Peter Shumlin delivered his annual State of the State address in January, and according to Rolling Stone Magazine, Shumlin devoted his entire speech to what he perceived as the state’s biggest threat — heroin addiction.

“In every corner of our state, heroin and opiate-drug addiction threatens us,” he said. “What started as an OxyContin and prescription-drug-addiction problem in Vermont has now grown into a full-blown heroin crisis.”

Less than a month later, Oscar winning actor Philip Seymour Hoffman died of a heroin overdose in New York City.

Deaths from drug overdose have been rising steadily over the past two decades and have become the leading cause of injury death in the United States, according to the Centers for Disease Control and Prevention. Every day in the United States, 113 people die as a result of a drug overdose.

To add some perspective, the CDC documented 38,329 fatal drug overdoses in the United States in 2010. That same year, 15,529 people with an AIDs diagnosis died and 11,078 people were murdered with a firearm.

These deaths are not occurring in filthy “drug houses” where junkies share dirty needles to get high. Fatal overdoses from opiate prescription medications such as oxycodone, hydrocodone, and methadone have quadrupled since 1999, accounting for an estimated 16,651 deaths in 2010.

“It is pretty amazing. Many people are focusing on the return of heroin and saying, ‘It’s all the fault of criminals.’ You’ve got to remember, 4 in 5 of people today who start using heroin began their opioid addiction on prescription opioids. The responsibility doesn’t start today with the stereotypical criminal street dealer,” Keith Humphreys, one of the nation’s leading addiction researchers from Stanford University told the Washington Post.

Why so many overdoses?

Humphreys says “overdose occurs because [addicts] had a loss of tolerance.” Tolerance is lost by the “consumption of other substances. This is particularly true of alcohol, which seems to lower the body’s ability to tolerate opiates.” Humphreys goes on to say, “Most of what we call “opiate overdoses” are really polydrug overdoses: alcohol and heroin, alcohol and oxycontin, benzodiazepine, alcohol and Vicodin, combinations like that.”

Robert S. Hoffman an emergency physician at NYU Langone Medical Center and Bellevue Hospital wrote in a New York Times op-ed earlier this year, “[T]hat up to 85 percent of users overdose in the presence of others.” As a result, an opportunity exists “for friends, family and other non-health care providers to intervene.”

Naloxone is an antidote to heroin overdose. The antidote has been in clinical use for more than 30 years. According to Hoffman, it can be administered via needle or as a nasal spray, and it works by displacing heroin from its receptors in the brain and rapidly restoring the overdose victim to consciousness and normal breathing.

Hoffman writes, “Some people might argue that the widespread distribution of a safe, effective and inexpensive antidote might actually encourage drug use. But that’s like suggesting that air bags and seatbelts encourage unsafe driving.”

Seventeen states and the District of Columbia have amended their laws to increase access to naloxone, resulting in over 10,000 overdose reversals since 2001, reported the U.S. Department of Justice.

This spring, U.S. Attorney General Eric Holder called the rise in overdose deaths from heroin and other prescription pain-killers an “urgent public health crisis.”
“When confronting the problem of substance abuse, it makes sense to focus attention on the most dangerous types of drugs. And right now, few substances are more lethal than prescription opiates and heroin.” Holder said.

One remedial measure recommended by Holder — encourage first responders to carry naloxone.

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.
Visit the column

The Cautionary Instruction: Pennsylvania’s 'Revenge-Porn' bill awaits governor’s signature

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 11, 2014
As part of a flurry of last-minute activity, state lawmakers have sent Governor Tom Corbett a bill that would outlaw so-called "revenge porn" in Pennsylvania.
On revenge porn sites, users upload X-rated photos of ex-lovers. I’m going to refer to the victims as women — occasionally men are victimized — but the victims are predominately women. The X-rated material is posted without the woman's permission. A woman sends a personal, intimate photograph to her boyfriend and when the relationship ends; her image is all over the internet, often with a name, location and links to her social media accounts.
Basically, revenge porn works like this:

1. Person A and Person B get married, date or hook up. They exchange or make intimate photographs and/or videos.

2. Person A and Person B stop getting along, and Person A gets angry.

3. Person A disseminates Person B’s private photographs or videos without consent — either to humiliate person B, or for profit, or both.

State Senator Judy Schwank a Democrat from Berks County, proposed the Senate’s version of the bill, saying that when it becomes law upon receiving Governor Corbett’s signature as expected, "persons who publicly post sexual images of their partners in order to annoy them or harm them will commit a crime that will have significant consequences."
She's not kidding: Violations of Pennsylvania's revenge-porn law will carry up to two years in state prison — or five years if the victim is a minor, which means that teenagers will need to be real clear about this law when they go through the emotional turmoil of their first break-up — and, like many crimes, will also come with the potential for financial damages in civil court.
According to the National Conference of State Legislatures, laws have been enacted in 10 states including Arizona, Idaho, Utah, Virginia and Wisconsin. At least 27 other state legislatures are considering some measure to outlaw similar conduct. In New Jersey, legislation was passed in the wake of the tragic suicide of 18-year-old Rutgers University student Tyler Clementi who was videotaped without his consent during a sexual encounter with another male.
California was ahead of the curve, passing a law in the fall of 2013 to prohibit the distribution of "intimate" images taken "with the intent to cause serious emotional distress." But some argue the law — which protects any images that were taken with the subject's consent if the distributor of the image is also the photographer — doesn’t go far enough.
(Image: matto353/iStock)

---

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.
Visit Ipso Facto

Child pornography sniffing police dogs

According to the Huffington Post, police dogs in New England are being trained to sniff out child pornography as state police in Massachusetts and Rhode Island to fight child porn trafficking, according to the Providence Journal.
Smart pups, like Thoreau, a golden Labrador who trained at the Connecticut State Police Training Academy for 22 weeks, can pinpoint hard drives, thumb drives and other technological devices that may be hidden in a home.
The Providence Journal reports:

Given to the state police by the Connecticut State Police, the dog assisted in its first search warrant in June pinpointing a thumb drive containing child pornography hidden four layers deep in a tin box inside a metal cabinet. That discovery led the police to secure an arrest warrant, state police Cpl. Eric Yelle says.
“If it has a memory card, he’ll sniff it out,” Det. Adam Houston, Thoreau’s handler, says.

At times, child pornographers hide devices in ceiling tiles or even radios.  

 Of course, not every memory card or hard drive contains child pornography. But police say that hard drives containing illicit material are often hidden away from suspects' computers, the Boston Globe reports. Not for long -- Thoreau and some 65 other dogs trained in the Connecticut police academy program are here to help.
To read more Click Here

Gun violence kills 14 in Chicago over holiday weekend

Gun violence erupted in Chicago over the holiday weekend, with 14 people killed and another 68 wounded from July 3 through early July 7. Two of the fatal shootings were by Chicago police, reported The Christian Science Monitor.
It was the city’s highest concentration of gun violence this year, but in its wake it was ascribed to familiar suspected causes, depending on the source: inadequate policing, lax gun laws, and lack of economic opportunity.
Most of the Chicago shootings took place in areas plagued by school closings and systemic losses in manufacturing jobs: Englewood, Roseland, Gresham, and West Pullman. Most of the fatalities were teenage boys or young adult men.

In gun violence over the Fourth of July weekend last year, 11 people were killed and 62 wounded.

While over the long term gun violence in Chicago is declining, the high-profile street violence is a political liability for Chicago Mayor Rahm Emanuel, who released a statement calling the number of shootings and murders “simply unacceptable.”

To read more Click Here

PLW: Death-Penalty Support Waning, Not Disappearing

Matthew T. Mangino
The Pennsylvania Law Weekly
July 8, 2014
There was a recent lull in executions in this country. For 49 days beginning on April 29 there was not a single execution nationwide. Then on June 17 and June 18 there were executions in Florida, Georgia and Missouri. The last execution prior to June 17 was in Oklahoma, and it did not go well.
Clayton Lockett died after his April 29 execution was halted when prison officials noticed he was writhing on the gurney, gritting his teeth and attempting to lift his head.
Oklahoma was using a novel three-drug execution protocol. Prison officials believed the lethal injection drugs were not being administered properly. The doctor inside the death chamber reported an IV became dislodged and the lethal drugs were not flowing through Lockett's veins.
The state's prison director halted the execution. Lockett died about 43 minutes later from what has been described as a heart attack, according to news reports. A number of executions were subsequently postponed in the wake of Lockett's "failed" execution.
On June 18, the scheduled execution of Lewis Jordan in Pennsylvania was postponed. Jordan was convicted in 2009 of shooting Philadelphia police officer Chuck Cassidy in the head during the robbery of a Dunkin' Donuts.
The reason for the postponement was not renewed concern over lethal injection or the botched execution of Lockett. The reason was that, although Pennsylvania has had the death penalty for more than 35 years and more than 200 men and women are on death row, Pennsylvania does not carry out involuntary executions.
Since 1999, Pennsylvania governors have signed approximately 205 execution warrants without a single execution, according to information from The Philadelphia Inquirer. There have been three executions in Pennsylvania since 1978. All three—Keith Zettlemoyer and Leon Moser in 1995; and Gary Heidnik in 1999—waived their appeal rights and volunteered to be executed.
Three-hundred forty-eight men and two women were executed in the state's electric chair between 1915 and April 2, 1962, when Elmo Smith was executed for the rape and murder of a Montgomery County girl. Smith was also the last person involuntarily executed in Pennsylvania.
Why the near non-existence of executions in Pennsylvania?
Pennsylvania Supreme Court Chief Justice Ronald D. Castille vehemently complained about delay tactics and frivolous filings used by federal defenders in capital murder cases, according to a York Daily Record report from 2012.
In a written opinion in Commonwealth v. Spotz, No. 576 (April 29, 2011), Castille said, "When the families of murder victims, and other concerned citizens, ask why there is no effective death penalty in Pennsylvania, the dirty secret answer is: ask the federal court."
Castille characterized the defender's conduct as "the zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania."
The federal court and federal defenders might be part of the problem in Pennsylvania, but around the country the problem is simple: Support for the death penalty appears to be waning. In the last five years, six states have abolished the death penalty. In Washington, Oregon and Colorado, governors have unilaterally imposed moratoriums on executions.
Ohio, the most prolific state in terms of executions over the last five years, excluding Texas, just had a two-and-a-half-month execution moratorium imposed by a federal judge.
The most recent Gallup poll on the death penalty has support at about 60 percent, down from a high in 1994 of 80 percent. That's not to say that 60 percent is not a significant number or that 32 of 50 states with the death penalty are not a substantial majority. But, unequivocally, the death penalty is trending downward.
Yet, how do we explain the efforts in places like Utah, Missouri and Oklahoma to bring back the electric chair or firing squad. In researching my book, "The Executioner's Toll, 2010"—examining every execution in America in a single year—I was struck by the palpable anguish of the families of victims, even years after their loved ones were violently taken from them.
The mother of Clarence Threat, whose murderer, Darick Walker, was executed May 20, 2010, said she did not support the death penalty, but she did not wish to stop Walker's execution. Her response, though not vengeful, starts in the direction of the most common response from victims' families: Lethal injection is too easy. In 2010, not only did some families want retribution, they wanted revenge—a painful sort of revenge.
Speaking after his daughter's killer was executed, an angry father put it this way, "I wish my daughter could have died the way he died today. Wasn't no pain."
A mother after watching an execution: "I hope he burns 70 times in Hell."
"He should have been hung outside the courthouse," said a father unimpressed with death by lethal injection.
"I was hoping that he would have a prayer, a sign that he had been saved," said a distraught mother of a murder victim. "I think the way he went ..." She paused, breaking into tears. "It was too easy for him."
"It was like laying down and going to sleep," said the relative of a murder victim. "My nephew suffered."
Lethal injection wasn't sufficient for a member of another family, "It was too humane. I'd rather have seen him in an electric chair."
Public opinion polls have, in the past, supported the proposition that the more one knows about a specific murder or murderer, the more likely that person will support the death penalty. Saddam Hussein and Timothy McVeigh are examples that even those who otherwise oppose the death penalty can support an execution.
In 2001, when 67 percent of people said they supported the death penalty, 81 percent supported the execution of McVeigh. In 2006, when 65 percent of people said they supported the death penalty, 82 percent supported the execution of Hussein.
When murder or the death penalty touches an individual, the theoretical, moral and legal aspects of capital punishment disappear. It is personal. Victims' families are not thinking about deterrence—they're thinking about vengeance. Support for the death penalty may be on a downward slope, but it is far from being rejected. 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was recently released by McFarland & Co. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
Visit PLW

Ex-Ill. Gov. Ryan emerges from prison to fight death penalty

George Ryan, an ex-Illinois governor and now an ex-convict, says he’d like to re-engage with the cause he left behind when he went to prison in 2007 — campaigning for the end of the death penalty in the U.S., reported the St. Louis Post-Dispatch.
“Americans should come to their senses,” Ryan said this week, in an hourlong interview at his kitchen table.
Newly free to speak after a year of federal supervision that followed his more than five years in prison for corruption, Ryan appeared to have recovered some of his old voice and feistiness, in contrast to the subdued figure that emerged a year ago from the federal penitentiary in Terre Haute, Ind., and ducked briefly into a Chicago halfway house.
At his home in Kankakee, south of Chicago, the Republican, 80, held forth on capital punishment, the state of American politics and the criminal justice system — though not the difficult details of his own corruption case.
He said he’d like to spend some time on the national circuit to encourage other states to follow Illinois’ lead in abolishing capital punishment. That move came in 2011 and stemmed from Ryan’s decision to clear death row in 2003. While he was treated as a champion by death penalty opponents at the time, he acknowledged some public figures now may have trouble openly associating with him.

“I’m an ex-convict,” he said. “People tend to frown on that.”
To read more Click Here

Mangino a guest on WFMJ-TV Today Weekend

Watch my interview on WFMJ-TV Today Weekend about the murder trial of Oscar Pistorius in South Africa.  To watch the interview Click Here

Man confronting intruder killed with own gun

A Texas minister was killed with his own gun as he tried to confront an intruder at his northwest Harris County home early on the 4th of July, reported KPRC-TV in Houston..
Just after midnight, deputies were called out to a home in the 4200 block of Amber Lake Drive in the Deerfield Village subdivision.
Investigators said the minister, 69-year-old Donald Frazier, and his wife woke up when they heard their generator turn on.
Frazier noticed the entry door to the garage was open so grabbed his gun and went outside to investigate. That is when he saw a man in his garage and the two began to fight.
Frazier’s wife saw the struggle and called 911, according to investigators.
During the struggle, deputies said the intruder, identified as Daniel Durham, managed to grab Frazier’s gun and shoot him with it.
Neighbors said they thought the gunshots were fireworks.
“It was about three or four hours into our sleeping and we heard some pops. It was real crisp. It sounded like a small-caliber gun maybe a .22,” neighbor Rick Soto said.
Frazier died at the scene.
To read more Click Here

The Cautionary Instruction: Oscar Pistorius strikes out with mental illness defense

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 3, 2014
Olympic star and double-amputee Oscar Pistorius shot and killed his girlfriend in 2013. Pistorius is on trial in South Africa for her murder. He acknowledges that he shot Reeva Steenkamp when he mistook her for an intruder.
In May, Pistorius was ordered by a judge to undergo psychiatric tests at the request of the chief prosecutor, Gerrie Nel. The prosecutor said he had no option but to ask for it after an expert witness for the defense testified that Pistorius had an anxiety disorder since childhood that may have influenced his judgment when he fatally shot Steenkamp.
Under South African law Pistorius could be acquitted if it’s found that he was not criminally responsible for Steenkamp’s shooting because of a mental illness.
Under South African law a defendant may lack the capacity to knowingly commit a crime because of mental illness. This was previously referred to as an “insanity” defense — South African law now refers to it as pathological incapacity.
By law the defense of pathological incapacity provides:

“A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable —

(a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission.”

In the United States a majority of states, including Pennsylvania, apply the M’Naughten Rule when evaluating insanity.
Under the law, a person is legally insane only if, at the time of the act, he was laboring "under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.''
The rule sets a very high standard. The insanity defense is sought in few cases and proving it is extremely rare.
"You can be severely mentally ill but not qualify as legally insane,'' said Thomas P. Rogers, a lawyer from eastern Pennsylvania.
The hurdle is such, said Rogers, that a defendant has to "believe he's shooting Martians, not his wife, because voices are telling him they're Martians, and that he's supposed to shoot them.''
After a month long break in the trial, a panel of mental health experts concluded that Pistorius was not suffering from a mental illness when he killed his girlfriend. The experts reported to the court that Pistorius was "capable of appreciating the wrongfulness of his act" when he killed Steenkamp.

---

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.
Visit Ipso Facto

GateHouse: DNA transference under scrutiny in criminal prosecutions

Matthew T. Mangino
GateHouse News Service
July 4, 2014


When DNA comes up in a criminal investigation, people listen. DNA is “the gold standard” of forensic science, nearly beyond question when it comes to a criminal conviction or exoneration. Many believe the identifying power of DNA is infallible and, as a result, treat it as an absolute form of evidence, rather than any other form of trace evidence.

According to the Innocence Project, there have been 316 post-conviction DNA exonerations in the United States. Eighteen of those exonerated through DNA served time on death row. On the other hand, there have been countless convictions for everything from burglary to murder based on DNA evidence. Some of those cases had gone cold with little hope of being solved.

However, this idea of DNA infallibility has come into question in recent years with the news about errors in DNA testing. Last year, the New York City medical examiner’s office confirmed that it was reviewing more than 800 rape cases from a 10-year period during which DNA evidence may have been mishandled by a lab technician.

According to the ABA Journal, a former chemist at a lab in Boston was indicted on 27 counts of obstructing justice, tampering with evidence, perjury and other charges in connection with her handling of some of the thousands of cases she analyzed. Similar action has been taken in labs in St. Paul, Minnesota; Oklahoma City; and Nassau County, New York.

There will always be concern with the human element involved in DNA analysis — whether it be incompetence or maliciousness. However, there has been a burgeoning concern, although never proven, that a criminal prosecution could be based on the transference of DNA evidence. An honest and competent analyst could obtain DNA from a crime scene that was accidentally transferred there.

The concern has been substantiated. Lukis Anderson, a homeless alcoholic from San Jose, California, was implicated by DNA in the murder of a Silicon Valley millionaire in 2012.

DNA can be deposited at a crime scene in many different ways — a drop of blood, a hair, a flake of skin, even dandruff. Any of those things can be accidentally transferred from one location to another. Unlike a fingerprint, which cannot be inadvertently lifted from the wall in one building to the wall in a second building, DNA can be accidentally carried from one location to another.

According to the San Jose Mercury News, in Anderson’s case lawyers proved that paramedics who had treated him on the streets of downtown San Jose inadvertently transferred his DNA to a murder scene when they responded to that that location.

Anderson’s DNA was transferred to the murder scene by paramedics via a simple oxygen-monitoring probe they clipped first onto Anderson’s finger and then onto the dead man’s finger.

The case is believed to be the first in the nation in which transferred DNA evidence was shown to have falsely placed an innocent person at the scene of a crime.

“Before, we just had hypotheticals, stuff that DAs would say was smoke and mirrors,” Deputy Public Defender Kelley Kulick, who handled Anderson’s case, told The Mercury News. “Now, there is a case to support it.”

In a 2010 article in Investigative Genetics, the authors warned, “Greater effort needs to be made by police/crime investigators to investigate how a DNA sample arrived at the location where it was found … [a]wareness of these variables, and their impact on transfer events, will assist in weighting the likelihood of proposed alternative scenarios.”

Practitioners have long been concerned about the future possibility of accidental DNA transference playing a prominent role in a criminal prosecution — the future is now.

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.
Visit the Column

California's prison 'realignment' not impacting recidivism

California Governor Jerry Brown's "realignment" of criminal justice procedures, aimed at reducing overcrowding in state prisons by diverting more felons into local jails and probation, has not resulted in lower rates of new criminal activity among offenders, a study by the Public Policy Institute of California concludes, reported the Sacramento Bee.
New offenses by those released from custody are known as "recidivism" and putting felons under local control was supposed to include more drug treatment and other programs to reduce their criminal activity.
However, the PPIC study concludes, "We find that the post-realignment period has not seen dramatic changes in arrests or convictions of released offenders. In the context of realignment's broad reforms to the corrections system, our findings suggest that offender behavior has not changed substantially."
"Overall arrest rates of released offenders are down slightly, with the proportion of those arrested within a year of release declining by two percentage points," the authors of the study, Magnus Lofstrom, Steven Raphael, and Ryken Grattet, continue. "At the same time, the proportion of those arrested multiple times has increased noticeably, by about seven percentage points. These higher multiple arrest rates may reflect the substantial increase in the time that released offenders spend on the streets--a result of counties' limited jail capacity."To read more Click Here

Read more here: http://blogs.sacbee.com/capitolalertlatest/2014/06/ppic-study-says-realignment-has-not-reduced-recidivism-rate.html#storylink=cpy