Tuesday, September 30, 2014

More and more police departments move to body cameras

More and more  police agencies, especially after the unrest following an unarmed teenager’s shooting in Ferguson, Mo., are recording events with small body-mounted cameras, reported the New York Times.
In just the last few weeks, law enforcement agencies in at least a dozen cities, including Ferguson; Flagstaff, Ariz.; Minneapolis; Norfolk, Va.; and Washington, have said they are equipping officers with video cameras. Miami Beach approved the purchase of $3 million worth of cameras for police officers, parking enforcement workers, and building and fire inspectors.
The New York Police Department, the nation’s largest urban force, has studied how Los Angeles is incorporating body cameras and is planning its own pilot project. A law in New Jersey, signed this month, requires all municipal police departments to buy car-mounted or body cameras, and creates a new fine on drunken drivers to help pay for it. And the United States Border Patrol, with more than 21,000 agents, recently said it would start testing cameras this year.
The shift to supporting body cameras has been sudden and seismic, primarily because various interests, often opposed, have lined up in support of the idea. Liability-conscious city attorneys say the cameras could help in lawsuits; rights groups, including the American Civil Liberties Union, say police accountability will be bolstered by another layer of public documentation; and the Justice Department, surveying 63 police departments that were using body cameras and many others that were not, concluded in a report this month that the technology had the potential to “promote the perceived legitimacy and sense of procedural justice” in interactions between the public and law enforcement.
To read more Click Here

Monday, September 29, 2014

Supervised bail program flourishes in Pennsylvania county

In response to increased usage of Bradford County, Pennsylvania's supervised bail program, the program is being expanded, which will almost double the number of individuals who can enroll in the program, reported The Daily Review.
The program was launched in September 2013 to reduce the overcrowding at the Bradford County jail.
The Bradford County commissioners voted to create a third, full-time bail release officer position for the supervised bail program, which is a program aimed at increasing the number of defendants who are out on bail.
The additional officer will increase the number of defendants and others who can be enrolled in the program to approximately 75, Bradford County jail Warden Donald Stewart said.
Until now, the capacity of the program has stood at about 40 individuals, Stewart has said.
At Thursday's meeting of the Bradford County Prison Board, Stewart said that there were 53 defendants and others currently enrolled in the supervised bail program.
The number of individuals enrolled in the program had reached an all-time high of 57 at some point within the previous two weeks, he said.
Enrollment in the program was allowed to increase beyond the 40-person capacity because the two bail release officers felt they could handle the additional individuals, the warden said.
In an interview, Stewart said that enrollment in the supervised bail program has been growing because, over time, the county's four magisterial district judges have been using the program more, and because Bradford County Court Judge Maureen Beirne also began using the program not long after it was launched.
The supervised bail program "is a very successful program" which has saved the county money, Bradford County Commissioner Daryl Miller said.
To read more Click Here

Sunday, September 28, 2014

No evidence to connect violent video games with violent crime

A new study that suggests that there is no evidence to connect violent video games and violent crime. The study, Violent Video Games and Real-World Violence: Rhetoric Versus Data in the journal Psychology of Popular Media Culture argues scientists have been compiling the wrong data.
According to The Crime Report, researchers compared short-term violent crime statistics with video game sales, release dates of popular violent video games and Internet keyword searches for violent video game guides.
"Contrary to the claims that violent video games are linked to aggressive assaults and homicides, no evidence was found to suggest that this medium was positively related to real-world violence in the United States," researchers wrote.
Unexpectedly, many of the results were suggestive of a decrease in violent crime in response to violent video games.

For full report Click Here

Saturday, September 27, 2014

GateHouse: Ambush of police officers is a growing problem

Matthew T. Mangino
GateHouse Media
September 26, 2014

Hundreds of Pennsylvania state troopers, along with law enforcement officers from across the Northeast, are combing the mountains of northeastern Pennsylvania looking for Eric Matthew Frein, who allegedly ambushed two state troopers in the barrack’s parking lot in Blooming Grove, Pennsylvania.

The towns and villages surround Blooming Grove are in the midst of one of the largest manhunts in state history. Local residents have lived under a near para-military occupation with a “shelter in place” order, road closures, SWAT teams and assault vehicles rolling through the streets.

The search being conducted in eastern Pennsylvania may be unprecedented, but the ambush of law enforcement officers is not. Between 1990 and 2012, more than 1,200 law enforcement officers were murdered. About one in six of those murders were fatal ambushes, according to the International Association of Chiefs of Police (IACP).

According to the IACP, there are two types of ambushes. The traditional ambush is the “entrapment,” a premeditated attack, where the offender lures an unsuspecting officer into a location to carry out the ambush.

The second type is the “spontaneous” ambush. These are unprovoked attacks without long-term planning often considered “crimes of opportunity.” The offender makes the decision at the time of the officer’s approach and surprises the officer with an unprovoked assault.

The Pennsylvania attack and escape was meticulously planned. At a press conference, Pennsylvania State Police Lt. Col. George Bivens said that troopers tracking Frein have located various items that the suspect either left behind or stored beforehand. “Based on our investigations, we know that Frein has planned and prepared extensively for months and maybe years,” Bivens said.

In July, a 23-year-old Jersey City police officer was brutally ambushed. According to The Star-Ledger, the killer walked into a Jersey City drug store, assaulted a security guard, stole his gun and waited for the police to arrive. When a young officer responded to the call, he was shot in the head before he could get out of his patrol car.

It’s been a year since a Kentucky police officer was gunned down in an ambush by someone who “planted” tree limbs in the road to trick a vehicle into stopping. A Bardstown Police officer was heading home from a late-night shift. He stopped to remove the debris from the roadway and was shot multiple times with a shotgun.

An unusual aspect of the Kentucky killing is that it remains unsolved. The unsolved slaying of a police officer is a rarity in the United States, reported the Associated Press. According to the FBI, only eight police officer killings have gone unsolved in the U.S. between 1996 and 2012.

In a report recently released by the National Law Enforcement Officers Memorial Fund, the number of law enforcement professionals killed nationwide jumped 31 percent during the first half of 2014, compared to the same time in 2013. As of June 30, 25 officers were killed by gunfire — a 56 percent increase over last year’s figures — including five in ambush attacks. Those numbers have increased at least to 27 gunfire killings and seven ambushes.

Since 1990, the numbers of ambushes dropped from a peak of 526 in 1991, to a low of 196 in 2001, but it has crept up, reaching 267 in 2012, according to the IACP.

“Looking at 2009, about 31 percent of shooting (deaths) were ambushes,” Robert J. Kaminski, Ph.D., an associate professor of criminology and criminal justice at the University of South Carolina, told the Standard Speaker. That was the high-water mark for ambush killings of police officers — unfortunately 2014 may soon set the standard for senseless premeditated murder of police officers.

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

Friday, September 26, 2014

The Cautionary Instruction:'Ban the Box' a second chance for ex-offenders

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
September 26, 2014

Former offenders are saddled for life with criminal records that make employment, education and public benefits difficult, if not impossible, to obtain. 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.
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. 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 reentry 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 check box 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 perspective employees from having an opportunity to sell themselves in an interview and it prevents perspective 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.
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, Wal-Mart 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. 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

Thursday, September 25, 2014

Prisoner in Belgium serving life sentence allowed to die

An imprisoned 50-year-old Belgian man, serving a life sentence since the 1980s for rape and murder, will be put to death reported Vice News.com.
Frank Van Den Bleeken's death has been sanctioned by a court in Belgium, where capital punishment has been banned since 1996.
Van Den Bleeken is not being executed — he is being allowed to die. In a landmark case, the inmate was granted the right to a physician-assisted suicide, which means his death will come under the imprimatur of mercy, not punishment. The prisoner's attorneys successfully argued that Van Den Bleeken faced ongoing years of mental anguish with no chance of relief or of release from prison, since both he and his lawyers acknowledge that his violent sexual impulses are uncontrollable.
He will be the first prisoner to be euthanized since Belgium legalized assisted death 12 years ago.
The assisted suicide of a prisoner sits in stark contrast to the American system of execution by lethal injection.  Thirty people have been executed in the Untied States so far this year.
To read more Click Here

Wednesday, September 24, 2014

Suit filed to disclose Pennsylvania's lethal injection drugs in unlikely event of execution

The American Civil Liberties Union and four newspapers have asked a federal judge to unseal court records in an attempt to learn where Pennsylvania corrections officials purchased the drugs that will be used to execute  death row inmates.
The state chapter of the ACLU, The Guardian, the Philadelphia Inquirer, the Pittsburgh Post-Gazette and the Philadelphia City Paper are asking state courts to unseal documents that would reveal how, and from whom, the state obtained the drugs it planned to use to execute Hubert Michael Jr..  Michael's  September 22 execution was stayed by Governor Tom Corbett, according to the Los Angeles Times. His execution would have been the first in Pennsylvania in 15 years.
The suit also seeks to grant the public access to documents about the suppliers of drugs used in future state executions.
Pennsylvania has not carried out and involuntary execution in more than 50 years.  In the modern era of the death penalty Pennsylvania has executed three men.  All three gave up their appeal rights and volunteered to be executed.
“In light of the recent string of horrifically botched executions, the public is entitled to know how the state obtained the drugs they plan to use to carry out executions here in Pennsylvania,” Reggie Shuford, executive director of the Pennsylvania chapter of the ACLU, said in a statement.

The Pennsylvania lawsuit comes in the wake of a series of botched executions that have escalated the national debate over the use of the death penalty and the drugs most states employ when executing death row inmates.
There are currently 184 people on death row in Pennsylvania.

To read more Click Here

Tuesday, September 23, 2014

Race, culture and economic factors influence domestic violence

Advocates for victims of domestic violence stress that state legislatures must consider the influence of race, culture and other demographic factors to craft effective Domestic violence strategies, reported Stateline.
African-American women, for example, are most likely to be killed by an intimate partner. Domestic abuse among Asian/Pacific Islander communities often involves more than one family member battering the same victim in the home, according to the Asian & Pacific Islander Institute on Domestic Violence. And Latinas are less likely to seek help from a shelter, preferring to find protection from friends and family.
Currently no state is trying to prevent domestic violence by focusing on specific demographic groups, according to the National Conference of State Legislatures. Advocates say that’s a problem.
“What works for one victim or 20 victims might not work in another part of the city or the state,” says Michael Polenberg, vice president of government affairs for Safe Horizon in New York City. “It might not work two blocks from where you’re standing. There should be a diverse range of options for victims of crime to get help that recognizes cultural and linguistic differences.”
Nonprofit organizations are picking up the slack, often with federal money distributed by the states. Recently, the MacArthur Foundation awarded one of its “genius grants” to legal scholar Sarah Deer, a citizen of the Muscogee (Creek) Nation of Oklahoma, for her work advocating for Native women, who suffer the highest rates of violent crime in the country.
Because the movement to help battered women largely has been driven by white, middle-class women, said Deer, a professor at the William Mitchell College of Law in St. Paul, “the attention is on generic domestic violence, (without legislators) really thinking about the nuances of race and class."
To read more Click Here

Monday, September 22, 2014

Tennessee inmates seek to prevent use of electric chair

Ten death row inmates in Tennessee were permitted by a judge to amend pending lawsuits to include a challenge to the use of the electric chair, reported the Associated Press.
The general assembly passed a law earlier this year allowing prisoners to be electrocuted if Tennessee Department of Correction officials were unable to obtain the drug used for lethal injection.
Prior to that, prisoners could not be forced to die by the electric chair, although they were allowed to choose that method under some circumstances.
The death row plaintiffs claim the new law violates both the US and Tennessee constitutions. Among other things, they claim it violates evolving standards of decency. They also claim that the law is too vague. And they question whether the state’s electric chair actually operates as it is supposed to.
Davidson County chancellor Claudia Bonnyman ruled recently that the inmates could amend their lawsuit to include the new claims. The original lawsuit challenged the state’s new lethal injection protocol, adopted in September 2013. It switched execution from the use of three drugs to just one, pentobarbital.
The switch was a response to legal challenges over the effectiveness of the three-drug mixture and a nationwide shortage of one of them, sodium thiopental. Those issues have effectively prevented any executions in Tennessee for nearly five years.
To read more Click Here

Sunday, September 21, 2014

Dental analysis as crime solving tool under scrutiny

The use of expert testimony to match body wounds with dental records of the accused has played a role in hundreds of murder and rape cases. However, mounting evidence has shown that matching body wounds to a suspect’s dentition is prone to bias and unreliable, according to the New York Times.

A disputed bite-mark identification is at the center of an appeal that was filed Monday with the Mississippi Supreme Court. Eddie Lee Howard Jr., 61, has been on death row for two decades for the murder and rape of an 84-year-old woman, convicted largely because of what many experts call a far-fetched match of his teeth to purported bite wounds, discerned only after the woman’s body had been buried and exhumed.

The identification was made by Dr. Michael West, a Mississippi dentist who was sought out by prosecutors across the country in the 1980s and 1990s but whose freewheeling methods “put a huge black eye on bite-mark evidence,” in the words of Dr. Richard Souviron, a Florida-based dental expert who helped identify Ted Bundy in 1979, in an interview last week.

Since 2000, at least 17 people convicted of murder or rape based on “expert” bite matches have been exonerated and freed, usually because DNA tests showed they had been wrongfully accused, according to research by the Innocence Project in New York. Dr. West was the expert witness in two of those cases.

In six additional cases, one involving Dr. West and one involving Dr. Souviron, indictments and arrests linked to bite-mark identifications were dropped after new evidence showed that the matches were wrong.

Still, without glaring new proof of innocence, courts have been reluctant to reopen cases based on even the most dubious of dental claims, leaving scores more defendants with questionable convictions to languish in prison or on death row, said Chris Fabricant, the Innocence Project’s director of strategic litigation.

One of them is Mr. Howard. His appeal cites the scientific consensus that bite-mark identifications are unreliable, and questions the methods used by Dr. West. The appeal to reverse his conviction, prepared by the Mississippi Innocence Project at the University of Mississippi, also cites newly completed DNA testing that found no traces of Mr. Howard on the murder weapon, the body or elsewhere at the crime scene.

Georgia Kemp, a reclusive 84-year-old in Columbus, Miss., had been stabbed to death and was partially dressed when police found her body among smoldering fires in her rundown house in 1992. The medical examiner found bruises “consistent with” rape but no hair or semen to prove it.
In the absence of fingerprints or witnesses, it was understandable when the police turned to Mr. Howard as a person of interest: Only four months earlier, he had gone to Columbus after spending most of the two previous decades in prison for attempted rapes.

To read more Click Here

Saturday, September 20, 2014

GateHouse: Federal government complicit in militarization of police

Matthew T. Mangino
GateHouse Media
September 19, 2014
Nearly 50 years ago when Los Angeles Police Chief Daryl Gates organized the nation’s first special weapons and tactics team (SWAT), nobody envisioned that most police departments — large and small — across the country would someday have SWAT teams.

Gates wanted an elite team of specialized cops similar to the Army Rangers or Navy SEALs that could respond to riots, barricades, shootouts or hostage-takings, wrote Radley Balko in the Huffington Post. The SWAT team would be used exclusively for special incidents that Gates thought rank-and-file officers were not prepared to handle.

Only days after Michael Brown was shot and killed by a police officer in Ferguson, Missouri, Paul Szoldra — a former Iraqi war veteran — described what he saw in photographs of the police responding to protests in Ferguson.

“We are shown a heavily armed SWAT team. They have short-barreled 5.56-mm rifles … with scopes that can accurately hit a target out to 500 meters. On their side they carry pistols. On their front, over their body armor, they carry at least four to six extra magazines, loaded with 30 rounds each,” Szoldra wrote in Business Insider.

He continued, “They wear green tops, and pants fashioned after the U.S. Marine Corps MARPAT camouflage pattern. And they stand in front of a massive uparmored truck called a Bearcat, similar in look to a mine-resistant ambush protected vehicle.”

The militarization of the police has been hotly debated in the wake of Ferguson.

Today, SWAT teams are not unique to big incidents in big cities. Eastern Kentucky University professor Dr. Peter Kraska testified at a recent Senate hearing called by Missouri Sen. Claire McCaskill looking into the militarization of local police departments. He told McCaskill’s committee that the line between police and military is quickly blurring.

In the mid-1980s, one-third of police departments had SWAT teams, Kraska told the Louisville Courier-Journal. Now more than 80 percent of all police departments have a SWAT team. The number of SWAT deployments skyrocketed from 3,000 a year in the 1980s to an estimated 60,000 annually.

Though SWAT raids are commonly associated with police response to potentially violent situations, a recent ACLU report found that, “only a small handful of deployments — 7 percent — were for hostage, barricade, or active shooter scenarios.” According to the report, more than 60 percent of deployments were to search for drugs or for serving warrants on individual residences.

St. Louis County Police Col. Jon Belmar defended his department’s para-military response in Ferguson in a recent interview with USA Today. “Had we not had the ability to protect officers with those vehicles [armored], I am afraid that we would have to engage people with our own gun fire. I really think having the armor gave us the ability not to have pulled one trigger. …”

The militarization of the police is the byproduct of two wars — the war on drugs and the war on terror.

Local police departments have welcomed surplus military equipment from the Pentagon. According to the Wall Street Journal, billions of dollars of excess military equipment and funding to buy other gear funneled down to local police departments over the past two decades.

Some local police departments are so eager to get free surplus gear they have made an investment in keeping the military equipment flowing. According to Politco.com, last year about 30 law enforcement unions or police departments spent more than $2.1 million lobbying Congress to keep the surplus program in place.

The militarization of America’s police forces has been building for nearly a half-century with little oversight. Last week’s congressional hearings revealed that the federal government does not track the distribution of surplus military equipment to local police departments. That must change. The federal government should also begin tracking the use of SWAT teams and develop national standards for mobilizing SWAT teams.

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

Friday, September 19, 2014

The Cautionary Instruction: The paradox of falling crime and crowded prisons

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
September 19, 2014
The U.S. Department of Justice, Bureau of Justice Statistics (BJS) released two reports this week that appear to be in conflict with one another. Crime rates are down for 2013, but incarceration rates are up. Locking up a few thousand more people is not going to make crime rates fall, but it begs the question -- if there are fewer crimes shouldn’t there be less people in jail?
The nation's violent crime rate declined slightly last year after two years of increases according to BJS.
BJS’s National Crime Victimization Survey found the overall violent crime rate -- which includes rape or sexual assault, robbery, aggravated assault, and simple assault -- declined from 26.1 victimizations per 1,000 people in 2012 to 23.2 per 1,000 in 2013.
The rate of violent crime in 2013 was similar to the rate in 2011 -- 22.6 per 1,000. Since 1993, the rate of violent crime has declined from 79.8 to 23.2 victimizations per 1,000 persons age 12 or older.
The victimization report is based on an annual scientific survey of Americans on whether they had been victimized in the previous year. The interviews included about 90,630 households and 160,040 persons last year.
It differs from the FBI's Uniform Crime Report, which is based on voluntary submissions from local police departments of crimes reported to them. Many criminologists consider the victimization survey a more accurate picture of the nation's crime, because the FBI's data are incomplete.
At the same time, the incarceration rate has increased. At the end of 2013, the U.S. held an estimated 1,574,700 people in state and federal prisons, an increase of approximately 4,300 prisoners, about a three percent increase from 2012. This was the first increase reported since the peak of 1,615,500 prisoners in 2009.
The incarceration totals rose in 27 states. With at least 700,000 in local jails, not included in the BJS report, the national total behind bars remains well over 2 million. Only six states had fewer prisoners at the end of 2013 as compared to 2000.
Critics question why more people should be behind bars while crime is dropping.
Ted Gest, president of Criminal Justice Journalists and Washington bureau chief of The Crime Report, suggests that the basic answer is that there is not necessarily a connection between the two sets of numbers.
Gest wrote, “About 450,000 people entered prison last year as a result of a court sentence. That is only a small fraction of the 6.1 million violent crimes. Most crimes don't lead to arrests or prosecutions, and only some of those cases result in an offender going to prison. So it is very possible for the crime rate to be going slightly in one direction and the imprisonment rate slightly in the other, as was the case in 2013.”

(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

Thursday, September 18, 2014

Texas executes woman for starvation death of child

The 30th Execution of 2014
Texas executed Lisa Coleman on Wednesday evening. Coleman was the ninth person executed by Texas this year — more than any other state – and the 30th inmate executed in the United States over the same span, reported the Washington Post.
This particular execution was also unusual for this country, because executions of female inmates have almost never happened throughout the modern era of the death penalty.
Executions of women in the United States are incredibly rare. Coleman is just the 15th woman put to death since the Supreme Court reinstated the death penalty in 1976, according to the Death Penalty Information Center. That accounts for about 1 percent of the 1,389 executions over that time.
Coleman, 38, was sentenced to death after being found guilty of murdering Davontae Williams, her partner’s nine-year-old son, a decade ago. Davontae was emaciated, weighing 35 pounds at the time of his death in 2004, and had multiple injuries on his body. Coleman and Marcella Williams, her longtime girlfriend, had restrained him and deprived him of food, according to the Texas Department of Criminal Justice.
She was killed by lethal injection in Huntsville, Tex. The execution took about 12 minutes, lasting from 6:12 p.m. to 6:24 p.m., and nothing unusual happened, the Department of Criminal Justice reported. In her final remarks, she told her family and “the girls on the row” she loved them. Her last words were, “I’m done.”
Texas is far and away the most active state when it comes to capital punishment, having put 516 inmates to death since 1976. That is nearly five times as many executions as any other state (Oklahoma has put 111 people to death, while Virginia has executed 110 inmates). Of the 14 women executed since 1976, five of them were put to death in Texas.
To read more Click Here

Texas executes double murderer

The 29th Execution of 2014
Texas executed Willie Trottie on September 10, 2014 after the US supreme courts rejected last-minute appeals against the convicted double murderer being put to death by lethal injection, reported the Associated Press.
The death sentence against Trottie, who shot dead his former common-law wife and her brother more than two decades ago in Houston, was carried out on Wednesday evening. He had contended he had poor legal help at his trial and questioned the potency of the execution drug.
Trottie repeatedly expressed love to witnesses – both people he selected and relatives of his victims, Barbara and Titus Canada – and several times asked for forgiveness as he was about to be executed. “I love you all,” he said. “I’m going home, going to be with the Lord … Find it in your hearts to forgive me. I’m sorry.”
Trottie was pronounced dead at 6.35pm, 22 minutes after the injection began. He was the second person executed on September 10, 2014.
His was the eighth lethal injection this year in Texas and the first in the nation’s most active death penalty state since recent executions went awry in Oklahoma and Arizona. Unlike those states, where a drug combination is used for capital punishment, Texas uses a single lethal dose of pentobarbital.
To read more Click Here

Wednesday, September 17, 2014

Prisons grew last year for the first time in five years

According to Ted Gest of The Crime Report, prison population increased last year breaking a four year trend.   The U.S. Bureau of Justice Statistics, reported that the national total rose by 4,300 in 2013 to 1,574,700. Prisoner numbers went up in 27 states, an indication that tough sentencing continues in the courts even in an era of lower crime rates.
With at least 700,000 in local jails, not included in today's report, the national total behind bars remains well over 2 million.
Malcolm Young, a sentencing expert based in Washington, D.C., said he was "flabbergasted" by the rise, considering that there had been a decrease in sentenced prisoners in the states of nearly 50,000 in the three years starting in 2009.
Despite reforms in various states and the six-year-old federal Second Chance Act inmate re-entry initiative, noted that only six states had fewer prisoners at the end of last year than in 2000, Young said.
In previous years, Congress' failure to stabilize sentences was considered by analysts the primary reason for the continued expansion of federal prison rolls  That wasn't a factor last year, however, as the number held in federal facilities fell by 1,900.
Much of the 2013 national increase was due to higher counts in states with the most prisoners to begin with: 2 percent in Texas, 1 percent in California, and 1 percent in Florida.
"These figures challenge premature and overly optimistic forecasts of the end of mass incarceration," said Marc Mauer, Executive Director of the Washington, D.C.-based Sentencing Project, which long has advocated for putting fewer Americans in prison.
To read more Click Here

Tuesday, September 16, 2014

TCR: Ferguson Faces Multilayered Investigations

Matthew T. Mangino
The Crime Report
September 11, 2014
Ferguson, Mo. has stumbled into the national spotlight for all the wrong reasons. After Michael Brown, an unarmed black teenager, was shot and killed last month by Darren Wilson, a white police officer, multilayered investigations are underway.
The day after the killing, the St. Louis County Police Department announced in a statement, that "[W]e are investigating the incident like any other criminal investigation …The results of our investigation will be forwarded to the St. Louis County Prosecuting Attorney's Office who will decide on criminal charges.”
Within days of the shooting, large-scale protests erupted on the streets of Ferguson. Police responded with a paramilitary presence, and ultimately the governor called in the National Guard.
The ensuing controversy brought in the Department of Justice (DOJ). As the protests became more intense Attorney General Eric Holder announced the opening of a “concurrent federal inquiry” by the FBI, the DOJ and the U.S. Attorney.
Shortly afterwards, three members of Congress—Reps. John Conyers, Jr. (D-Mich.), Marcia L. Fudge (D-Ohio), and William Lacy Clay (D-Mo.)—asked the DOJ to consider expanding the scope of its investigation to include "the potential for any pattern or practice of police misconduct by the Ferguson Police Department."
The Ferguson investigation continued to expand. At a press conference, Holder said, “people consistently expressed concerns stemming from specific alleged incidents, from general policing practices, and from the lack of diversity on Ferguson’s police force.”
According to the Washington Post, Holder said the investigation will examine the department’s record of traffic stops, searches and arrests, and its treatment of people detained in the city jail.
Interestingly, the probes will include the Civil Rights Division, which has the authority to file suit and seek judicial remedies to force law enforcement agencies into reform; and the Department of Justice’s Office of Community Oriented Policing Services (COPS), which seeks to work collaboratively with police departments to pursue reform.
The Civil Rights Division will investigate the death of Brown as well as the Ferguson Police Department. The COPS office will investigate the St. Louis County Police.
The 1994 Violent Crime Control and Law Enforcement Act gave the Civil Rights Division of the Department of Justice the authority to conduct investigations into a “pattern or practice” of abuse by police including violations of individual civil rights. The law was passed in response to the 1991 beating of Rodney King by Los Angeles police officers and the riots that followed the police officers’ trial.
The first suit filed pursuant to the new act was against the Pittsburgh Police Department. In 1997, the DOJ alleged that Pittsburgh used excessive force, false arrests, improper searches and seizures, and a failure to supervise officers—including inadequate discipline.
The Las Vegas Police Department was the first agency in the country to participate in the COPS collaborative reform process. COPS—unlike the Civil Rights Division—has no authority to file civil lawsuits if the proposed recommendations are not implemented. The COPS role depends on a collaborative relationship between the Department of Justice and local police departments.
The Ferguson police appear to be interested in collaborative, not coercive, reform.
"Over the past few weeks we have hosted and participated in several meetings with the DOJ and feel our collaborative efforts are another step forward in showing our willingness to be transparent and forthright as we continue the process of earning back the trust of our residents and our neighbors in the St. Louis region," Ferguson Police Chief Tom Jackson wrote in a recent statement.
However, it does not appear that collaborative reform is available to the Ferguson Police Department. If the DOJ finds constitutional violations in Ferguson, a negotiation would begin to discuss strategies for achieving reform. The city could choose to challenge the proposed reforms or embrace them. According to the Police Executive Research Forum, the latter approach can speed up the process.
In Las Vegas, the police eventually adopted more than 75 recommendations made by COPS regarding the use of force. The COPS office is also pursuing collaborative reform in Philadelphia and Spokane, WA.
Even with the Collaborative Reform Model available, the DOJ has not been reluctant to use its authority. Since 2009, it has brought 33 legal actions against law enforcement agencies for their policies or alleged abuse. According to the Los Angeles Times, 16 cases have produced rulings or settlements resulting in reforms.
As a result of the DOJ’s first ever police reform suit, the Pittsburgh Police signed a federal Consent Decree. The Federal District Court appointed a monitor. The city remained under a monitor for five years.
According to the Vera Institute, the Pittsburgh Consent Decree is recognized as having brought about significant reforms through a cooperative relationship between the monitor and law enforcement administrators.
Other jurisdictions have not fared as well. Los Angeles, Oakland and Detroit spent—or continue to spend—more than a decade under court-ordered monitoring.
Some police chiefs have welcomed or even requested Justice Department investigations. A federal investigation can force otherwise reluctant local elected officials to provide the money for needed reforms and overrule labor concerns with regard to changes in policies and practices.
The findings of the investigations could also lead to a federal or state prosecution against Officer Wilson. To file criminal charges against the officer, Darren Wilson, the DOJ would have to show a racial motive or that Wilson used excessive force in killing Brown.
Along with the St. Louis County Police investigation of Wilson, a St. Louis County grand jury is hearing evidence on the shooting. A state prosecution would have to find that Wilson used excessive force and was not justified in shooting Brown.
With the ongoing investigation of the Ferguson and St. Louis County Police it is unlikely that Wilson, if prosecuted, will be prosecuted by state authorities.
Regardless of whether charges are filed against Wilson, his conduct will have a long term impact on policing—not only in Ferguson and St. Louis, but on police departments across the country.
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 Crime Report

Monday, September 15, 2014

DOJ report on police body-worn cameras

The U.S. Department of Justice Office of Community Oriented Policing Services (COPS Office) released Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned.   The report analyzes some of the costs and benefits of law enforcement using body-worn video technology, according to a DOJ press release.

“Law enforcement agencies across the nation are contemplating how best to use body-worn cameras and these guidelines will help them weight the costs and benefits,” said COPS Office Director Ronald L. Davis.   “There are many considerations when implementing a body-worn camera and this report will help chiefs and sheriffs make the best decision for their jurisdiction.”

The publication was developed jointly by the Police Executive Research Forum (PERF) and COPS through a cooperative agreement under the FY 2013 Community Policing Development Program.   PERF conducted research on the use of body-worn cameras, identified promising practices and lessons learned from the field, and produced a set of guidelines for agencies interested in implement a body-worn camera program.   Included in this effort was a one-day executive session with more than 200 police chiefs, sheriffs, scholars, representatives from federal criminal justice agencies, and other experts present to share experiences and lessons learned about body-worn cameras, to identify promising practices from the field, and to engage in a dialogue about the issues surrounding cameras.

The publication reviews the perceived benefits of body-worn cameras and considerations surrounding body-worn cameras before proposing a set of comprehensive policy recommendations that reflect the promising practices and lessons that emerged from PERF’s conference and its extensive discussions with police executives and other experts following the conference.

The policy recommendations cover all aspects of what a police department should consider when deciding to use body cameras including:

·          Basic camera usage, such as who will be assigned to wear the cameras and where on the body the cameras are authorized to be placed;

·          Recording protocols, including when to activate the camera, when to turn it off, and the types of circumstances in which recording is required, allowed or prohibited;

·          The process for downloading recorded data from the camera, including who is responsible for downloading, when data must be downloaded, where data will be stored, and how to safeguard against data tampering or deletion;

·          The length of time recorded data will be retained by the agency in various circumstances;

·          The process and policies for accessing and reviewing recorded data, including the persons authorized to access data and the circumstances in which recorded data can be reviewed; and

·          Policies for releasing recorded data to the public, including protocols regarding redactions and responding to public disclosure requests.

The Full Report

Sunday, September 14, 2014

Governor accepts changes to lethal injection protocol

Oklahoma Governor Mary Fallin recently released a statement regarding a report issued by the Department of Public Safety (DPS) concerning the botched execution of Clayton Lockett. The report was the result of an independent review, requested by Governor Fallin, of the Lockett execution and the state’s execution protocols. It contains suggested updates to Department of Corrections (DOC) execution protocols.
 “My thanks go out to Commissioner Michael Thompson and his team for conducting a thorough review of Clayton Lockett’s execution. In the coming days and weeks, I expect the Department of Corrections to implement the proposed improvements in protocols to ensure that future executions are performed effectively. In fact, I have been told by DOC Director Robert Patton that his agency has already taken steps to rewrite its execution protocol in a manner that is consistent with these recommendations.
 “I continue to believe the death penalty is an appropriate and just punishment for those guilty of the most heinous crimes, as Mr. Lockett certainly was. The state’s responsibility is to ensure a sentence of death is carried out in an effective manner. Commissioner Thompson’s report and his recommendations for improved DOC protocols will help ensure this high standard is met.”
 The state’s next scheduled execution is set for November 13. Charles Warner, who was convicted of the rape and murder of an 11 month old infant, has been sentenced to die by lethal injection.
To read more Click Here

Saturday, September 13, 2014

GateHouse: Law enforcement options in domestic violence cases

Matthew T. Mangino
GateHouse Media
September 12, 2014
A video released this week showing football star Ray Rice punching his fiancée, now his wife, in the face and leaving her apparently unconscious on the floor of a hotel elevator has ignited a contentious debate about the proper way to deal with domestic violence in this country.

The Philadelphia Inquirer reported that Rice ended up in a diversion program based on more than a dozen factors, including the victim Jayne Palmer’s wishes and Rice’s criminal history.

The Atlantic County Prosecutor’s Office reviewed the appalling video from inside the elevator before approving Rice for the diversion program.

The 12-month diversion program requires counseling, employment and remaining crime free. “We do try to look at the whole person,” Kathy Boyle, program administrator in Atlantic County, told the Inquirer. “Not just the nature of the offense.”

Domestic violence impacts many more women than even the data portrays. The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report prepared by the National Center for Injury Prevention and Control at the Centers for Disease Control and Prevention found that nearly one in three women in the United States have been slapped, pushed, or shoved by an intimate partner in their lifetime.

Domestic violence accounted for 21 percent of all violent crime from 2003 to 2012, according to the U.S. Department of Justice’s Bureau of Justice Statistics.

Violence against an intimate partner is a deplorable crime. An inordinate amount of domestic crime in never reported to police and not every act of domestic violence reported to authorities is prosecuted. There is research that indicates seeking alternatives to prosecution may not be entirely bad.

A recent study following up on a 1980s report about mandatory domestic violence arrest policies in Milwaukee — increased death rates of domestic violence victims from arresting vs. warning suspects in the Milwaukee Domestic Violence Experiment — found increased death rates among victims when suspects were arrested, rather than merely warned, by police.

“The foundational question being begged by this research is an important and understudied one: Is the criminal justice system the best societal response to non-felonious domestic assault?” Milwaukee Police Chief Edward Flynn asked when the report was released.

Rice’s attack on Palmer was a felonious act. He was charged with aggravated assault. However, the new research is worth a look. There are options available to law enforcement in domestic violence cases other than prosecution.

The new research was undertaken by the same primary researcher, Lawrence W. Sherman, a University of Maryland professor and director of Cambridge University’s Police Executive Program. Sherman suggested at a recent conference that “criminal penalties have enormous side effects. They do not always deter crime, and they may increase crime.” He went on to say, “We should get away from a one-size-fits-all policy.”

Researchers highlighted the findings that victims were 64 percent more likely to have died of all causes, such as heart disease, cancer or other illness, if their partner was arrested rather than warned, according to the Milwaukee Journal Sentinel.

Flynn said that more research is needed to provide law enforcement with better guidance on the effectiveness of arrests versus other tactics, such as referring alleged abusers to social services, reported The Crime Report. He noted that of 81 domestic violence homicides in Milwaukee in the last eight years, suspects in 61 of them had prior arrest records. Flynn refrained from concluding that the arrests somehow provoked the killings and therefore those arrests should not have been made.

“The impact of seeing a partner arrested could create a traumatic event for the victim, one that raises their risk of death,” concluded the report.

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

Friday, September 12, 2014

The Cautionary Instruction: The efforts to decrease domestic violence are working

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
September 12, 2014
Domestic violence impacts literally millions of women each year. The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report prepared by the National Center for Injury Prevention and Control at the Center for Disease Control found that nearly one in three women in the United States have been slapped, pushed, or shoved by an intimate partner in their lifetime.
With that grim statistic in mind and the alarming nature of professional football player Ray Rice’s case it may be surprising to know that domestic violence has dropped precipitously since the mid-1990s.
The rate of domestic violence in U.S. households declined 63 percent, from 13.5 victimizations per 1,000 persons age 12 or older in 1994 to 5.0 per 1,000 in 2012. Both serious domestic violence (rape, sexual assault, robbery and aggravated assault) and simple assault (push, shove, slap, threaten) decreased.
Why the long and sustained drop in domestic violence?
Steven Pinker in The Better Angels of Our Nature: Why Violence has Declined suggested, “Those countries in which women are better represented in government and in the professions, and in which they earn a larger proportion of earned income, are less likely to have women at the receiving end of spousal abuse.”
Researchers at Carnegie Mellon University found access to protective orders, assistance with child custody and support, divorce and property distribution and domestic legal disputes around immigration, housing and public benefits help alleviate the burdens of domestic violence.
Lonnie A. Powers, Executive Director of the Massachusetts Legal Assistance Corporation wrote recently that these services "appear to actually present women with real, long-term alternatives to their relationships."
Criminal justice practitioners have focused a lot of attention -- with considerable success -- on enhanced sentences, emergency shelters, counselors and hotlines. Those efforts are priceless after an assault has occurred. However, such efforts do not prevent the pervasiveness of violence.
Domestic violence includes rape, sexual assault, robbery, aggravated and simple assault committed by intimate partners -- current or former spouses, boyfriends and immediate family members.
I recently wrote in a column for GateHouse Media, “The greatest impact on violence against women in America and around the world is to empower women. In this country, women have excelled at every level. That kind of transformation is underway in many countries around the globe. However, until full equality is achieved professionally and personally, here and abroad, the scourge of domestic violence will continue.”

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

Thursday, September 11, 2014

The Vindicator: Facial recognition technology easily accessable in Ohio

Matthew T. Mangino
The Youngstown Vindicator
September 7, 2014
A year ago, a Cincinnati Enquirer investigation revealed that Attorney General Mike DeWine launched a facial-recognition software program that tapped into Ohio’s database of driver’s license photographs.
DeWine did this without public input and without even bothering to tell Ohioans. In addition, he provided access to more than 25,000 individuals involved in law enforcement and the courts—the most liberal access to facial data in the U.S.
Facial-recognition technology is a cutting-edge biometric tool increasingly used by law-enforcement across the country and around the world. Though not yet as reliable as DNA or fingerprints, facial recognition can help determine a suspect’s identity through individual variations in irises, skin textures, vein patterns, palm prints and a person’s gait while walking, according to the Washington Post.
Just as fingerprints detect lines on your hand, facial recognition detects lines on your face, and then compares them against a database of photographs. Law- enforcement officials use it when they have a photograph of a suspect and need to make an identification.
‘Biometric technology’
“You can see very different appearances on the surface of a picture — from mustache to beards to glasses and moles — but this biometric technology has allowed us to match pictures with suspects, which helps police work immeasurably,” Tom Stickrath, superintendent of the Ohio Bureau of Criminal Investigation told WKYC-TV in Cleveland.
The pervasive use of facial recognition has triggered concerns. Such systems collect data on law abiding citizens from driver’s license and non-driver ID card databases. This data is collected without individuals knowing it and dumped into a database of millions of images.

According to the Enquirer investigation, 26 states and the District of Columbia allow law enforcement to use facial recognition systems—all having more limitations than Ohio. In Pennsylvania, access is limited to about 500 people. When Ohio’s program was launched, 165 members of Pennsylvania’s state police had access to Ohio’s law enforcement database and its facial recognition search.
One in three officers authorized for access in Pennsylvania were also authorized for access in Ohio. According to the Enquirer, the Pennsylvania officers alone who had access in Ohio numbered more than the individuals who had access to systems in most other states.
Attorney General DeWine admitted that he should have told the public about the facial recognition system’s launch in June 2013. When some complained that liberal access to the data would spawn abuse, he said abuse would result in a felony charge and that would deter police from misusing the technology.
DeWine formed an advisory group to suggest security protocol changes that would ensure proper use of the new system. The group recommended limits on who can access the software, monitoring when it’s used and increased security to deter hackers.
Most of those recommendations have been put into place.
Last year, about 26,500 local law enforcement officials, court workers, and employees from other agencies had access to the software. As of May 31, 2014, that number had dropped to about 5,100 people — all law enforcement officials, according to Hackley.
The software has paid some dividends. Akron police detectives used the facial recognition database to identify a suspect accused of murder.
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

Wednesday, September 10, 2014

Missouri executes killer of two at Ruby Tuesday

The  28th  Execution of 2014
Earl Ringo Jr. and an accomplice killed delivery driver Dennis Poyser and manager trainee JoAnna Baysinger at a Ruby Tuesday restaurant in Columbia, Missouri on July 4, 1998. Poyser and Baysinger were shot to death at point-blank range. Ringo was executed in Missouri on September 9, 2014, according to The Associated Press.
The Department of Corrections said Ringo was executed at 12:22 a.m. by lethal injection and pronounced dead at 12:31 a.m.
Courts and Gov. Jay Nixon had refused to halt the execution over concerns raised by Ringo's attorneys, who, among other things, questioned Missouri's use of a pre-execution sedative, midazolam. Attorneys argued that the drug could dull Ringo's senses and leave him unable to express any pain or suffering during the process.
Midazolam has come under scrutiny after it was used in problematic executions earlier this year in Ohio, Oklahoma and Arizona. In each case, witnesses said the inmates gasped after their executions began and continued to labor for air before being pronounced dead.
A clemency petition to Nixon had also cited concerns about the fact that Ringo was convicted and sentenced to death by an all-white jury.
Before sunrise on July 4, Ringo and Jones hid behind a grease pit in the back of the restaurant. Poyser and Baysinger arrived and entered the restaurant. Ringo followed them and shot Poyser, 45, killing him instantly.
He ordered Baysinger, 22, to open a safe. She pulled out $1,400 and gave it to him.
Ringo gave the gun to Jones, who stood with the weapon pointed at Baysinger's head for a minute and a half before pulling the trigger.
To read more Click Here

Tuesday, September 9, 2014

PLW: Superior Court Strikes Mandatory Minimum Sentencing in Drug Cases

Matthew T. Mangino
Pennsylvania Law Weekly
September 9, 2014
Last month, the Pennsylvania Superior Court in Commonwealth v. Newman, No. 1980 EDA 2012, ruled that the imposition of a mandatory minimum sentence by a judge, not a jury, relating to the use of a gun in a drug transaction is unconstitutional. The ruling was not completely unexpected, and the breadth of its impact on individual cases may be limited, but it could nonetheless have a dramatic impact on Pennsylvania sentencing going forward.
James Newman was involved in the drug trade. After a couple controlled buys at his apartment in Montgomery County, police obtained a search warrant. They found a large quantity of drugs as well as a gun, according to the opinion.
Newman was arrested. In February 2012, he was convicted of possession with intent to deliver, simple possession, possession of drug paraphernalia, dealing in proceeds of unlawful activities, possession of an instrument of crime and criminal conspiracy.
Following the trial, the district attorney filed a notice of intent to seek mandatory sentence under 42 Pa.C.S.A 9712.1, which enhances the minimum sentence where a firearm is found in the vicinity of illegal drugs.
Newman was sentenced pursuant to Section 9712.1 to five to 15 years in prison. He appealed his conviction and sentence and the Superior Court affirmed the lower court's judgment.
But something interesting happened. Five days after the Superior Court ruling, the U.S. Supreme Court decided Alleyne v. United States, ___ U.S. ___ , 133 S.Ct. 2151 (2013). In light of Alleyne, the Superior Court granted Newman's request for an en banc reargument.
To fully appreciate the Superior Court's decision in Newman, it is imperative to look at the history of the U.S. Supreme Court's treatment of mandatory minimum sentencing.
In 1986, the high court upheld the application of Pennsylvania's mandatory five-year sentence for the visible possession of a firearm during a crime of violence.
In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the U.S. Supreme Court found that the visible possession of a firearm was not an element of the crime but rather a sentencing factor to be proven by a preponderance of the evidence.
In 2000, the U.S. Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the court found that sentence enhancements that affect the maximum sentence can no longer be decided by a judge—by a preponderance of the evidence—but must be determined by a jury—beyond a reasonable doubt.
The Apprendi court did not overrule McMillan. The court limited McMillan to cases that did not involve the imposition of a sentence more severe than the statutory maximum. Therefore, pursuant to Apprendi in Pennsylvania, a sentence that only effected the minimum sentence and did not enhance the maximum did not run afoul of the U.S. Constitution.
Two years later, the U.S. Supreme Court took up the issue again in Harris v. United States, 536 U.S. 545 (2002). The court made a point to reconcile McMillan and Apprendi. The high court found that there was a fundamental difference in the factual findings that were at issue in the two cases.
The Apprendi court ruled that any fact that extended a maximum sentence was the domain of the jury. "The same cannot be said of a fact increasing the mandatory minimum. ... As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the constitution," the court held.
The Newman opinion found that with Alleyne the U.S. Supreme Court finally scuttled the Apprendi and McMillan maximum/minimum distinction.
In Alleyne, the petitioner robbed a bank. The jury convicted the petitioner and indicated that he had possessed a firearm during a crime of violence, but did not indicate that he had brandished the weapon. The judge found by a preponderance of the evidence that the petitioner had brandished the firearm and applied the mandatory minimum sentence.
The Alleyne court found no basis for distinguishing between the minimum and maximum sentencing range and found that "raising the floor aggravated the sentence that was imposed just as raising the ceiling did, and that, therefore, any fact that served to aggravate the minimum sentence must be found by a jury beyond a reasonable doubt."
Following the reasoning in Alleyne, Judge Kate Ford Elliott, writing for the majority of the en banc Superior Court panel, found that Section 9712.1 can no longer pass constitutional muster. Ford said, "It permits the trial court, as opposed to the jury, to increase a defendant's minimum sentence based upon a preponderance of the evidence that the defendant was dealing drugs and possessed a firearm, or that a firearm was in close proximity to the drugs."
The court in Newman emphasized, "Under Alleyne, the possession of the firearm must be pleaded in the indictment, and must be found by the jury beyond a reasonable doubt before the defendant may be subjected to an increase in the minimum sentence."
Lancaster County District Attorney Craig Stedman said the ruling is "terrible." He hopes the Pennsylvania Supreme Court will take up the matter.
"In the short term, this is a huge blow to public safety and will have widespread ramifications for the law-abiding citizens of this county," he told the Lancaster New Era in an article posted Aug. 21.
"[The impact] will undoubtedly increase as many drug dealers and robbers who would otherwise go to state prison will now get county sentences," he said. "But this is what the court has ruled and we will have to adjust and hope the Supreme Court makes it right."
The Newman decision clearly prohibits the application of the mandatory minimum for drug cases through any means other than a jury. The impact of the decision may not be as broad as some would hope.
It appears the decision will only apply to defendants who had direct appeals or open petitions for post-conviction relief filed at the time of the decision. Those defendants whose appeals have ended and whose post-conviction claims have been resolved will not be eligible for relief.
Montgomery County Assistant District Attorney Robert Falin told the Associated Press his office is likely to appeal to the Pennsylvania Supreme Court.  
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 the PLW

Monday, September 8, 2014

Jack the Ripper murders solved by DNA

The unidentified serial killer Jack the Ripper was famous for the Whitechapel killings in London in 1888. Though there were hundreds of suspects thought to be the real Jack the Ripper, no one was ever convicted for the murders, according to the Inquisitr News.

Now, with the help of the latest developments in forensic science, DNA evidence on the shawl of Catherine Eddowes, one of Jack the Ripper’s victims, has shown that one of the key suspects in the Whitechapel killings was indeed Jack the Ripper.
Businessman Russell Edwards, 48, bought the shawl from an auction and sought help from a professional in order to come up with the identity of Jack the Ripper. Dr. Jari Louhelainen is an expert in the analysis of genetic evidence from historical crime scenes.
According to Mirror UK, Louhelainen compared the 126-year-old DNA from the victim’s shawl to the DNA of the victim’s relatives as well as the DNA from the suspects’ relatives and found one of the suspect’s in the case was a perfect match – a Polish immigrant named Aaron Kosminski who moved to London from Russia in the early 1800′s.
To read more Click Her

Sunday, September 7, 2014

GateHouse: Facial recognition technology a law enforcement tool

Matthew T. Mangino
GateHouse News Service
September 5, 2014

Police are using sophisticated software to match the faces of criminals being videotaped committing a crime and photographs stored in enormous databases. The software has paid some dividends. This year, Akron, Ohio, police detectives used a facial recognition database to identify a suspect accused of murder. Detectives obtained the suspect’s photograph. The image was run through the database, and Charles Fortson was flagged. After an interview Fortson was arrested.

Facial-recognition technology is a cutting-edge biometric tool increasingly being used by law enforcement authorities across the country and around the world. Though not yet as reliable as DNA or fingerprints, facial recognition can help determine a suspect’s identity through individual variations in irises, skin textures, vein patterns, palm prints and a person’s gait while walking, according to the Washington Post.

Like fingerprints detect lines on your hand, facial recognition detects the lines on your face, and then compares them against a database of photographs. Law enforcement officials use it when they have a photograph of a suspect and need to make an identification.

With the increased use of DNA databases, suspects in some cases were submitting to testing that put their genetic profile in official databases, even if they were never convicted of a crime.

Last year, the Supreme Court approved the collection of DNA samples after arrest. At the time, the federal government and 28 states authorized the collection of DNA from those arrested. According to the New York Times, law enforcement officials argued the DNA samples were a valuable tool for investigating unsolved crimes.

Justice Anthony M. Kennedy wrote, “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

There are even greater concerns about the pervasive use of facial recognition. Unlike DNA and fingerprints, which are collected after an arrest or conviction, facial recognition systems collect data on law-abiding citizens from driver’s licenses and non-driver ID card databases. This data is collected without individuals knowing it and dumped into a database of millions of images.

According to a 2013 Cincinnati Enquirer investigation, 26 states and the District of Columbia allow law enforcement to use facial recognition systems. Twelve states do not use facial recognition software at all, and another 12 states have facial recognition systems but don’t allow law enforcement personnel to benefit from the technology in any way.

The concern about facial recognition goes beyond warehousing the images of individuals never charged with a crime. The concerns extend to the collection of these images without adequate notice to the public and the potential for abuse of the images by law enforcement and other agencies that have access to the database.

Those concerned were heightened last year in Ohio. The Enquirer investigation revealed that Attorney General Mike DeWine launched a facial recognition software program that tapped into Ohio’s database of driver’s license photographs, without disclosing the program to the public.

After a firestorm of protest, Attorney General DeWine admitted that he should have told the public about the facial recognition system’s 2013 launch. When some complained that liberal access to the data would spawn abuse, he said abuse would be deterred by a felony charge for misusing the technology.

Last year, about 26,500 local law enforcement officials, court workers, and employees from other agencies had access to the software. Access to Ohio’s database was the most liberal in the country.

DeWine formed an advisory group to suggest security protocol changes that would insure proper use of the state’s facial recognition system. As of May 31, 2014, the number of individuals with access to the database had dropped to about 5,100 people — all law enforcement officials, according to the Cleveland Plain Dealer.

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

Saturday, September 6, 2014

Justice Castille pounds away at federal defenders in capital cases

Pennsylvania Chief Justice Ronald D. Castille has again issued scathing criticism of the federal defenders' tactics in an ongoing death-penalty appeal, reported The Legal Intelligencer.
In his opinion addressing motions prompted by the court's decision to deny reargument in the case, Castille leveled harsh words at the Philadelphia-based Federal Community Defender Office, attacking the organization's ethics and accusing it of manipulating the judicial process.
Castille said Pennsylvania needs to regain control over death-penalty cases to keep the federal defenders from maintaining a "monopoly" in state capital litigation.
"The circumstances and obstructionist effect of the FCDO's silent takeover of the capital [Post-Conviction Relief Act] defense function in Pennsylvania requires that Pennsylvania reassert control over the litigation of state capital matters. Death-penalty opponents, such as the FCDO, can then redirect their efforts to the political arena, where they belong," Castille said. "This court has a responsibility for the entire Pennsylvania judicial system, to ensure the delivery of swift, fair, and evenhanded justice in all cases."
Castille criticized the defenders for what he perceived as the pursuit of a "pervasive" private agenda at the expense of taxpayer funds.
He added, "The reality is that the FCDO has deliberately overburdened the state courts with its resources and tactics, and its tentacles can be found in other stages of litigation as well, including amicus work on behalf of foreign governments and their citizens who commit murders in the United States."
To read more Click Here

Friday, September 5, 2014

The Cautionary Instruction: New school year brings new security measures

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
September 5, 2014
As the new school year begins many school districts are heightening security.
Security measures continue to evolve 20 months after the mass shooting at Sandy Hook Elementary School in Newtown, Conn., which left 20 students and six staff members dead following a rampage by a 20-year-old gunman.
The massacre at Sandy Hook brought about new procedures, cutting-edge equipment and security personnel.
This school year extends many of those efforts, some partly funded by state or federal grants. Experts point out that schools are one of the safest places for children and say security upgrades should be driven by factual assessments, not fear.
At Franklin Regional High School a student stabbed 21 students last spring. The western Pennsylvania school district received a Safe Schools Initiative Competitive Targeted Grant to improve security. The grant money will be used to upgrade building locks, improve communications throughout the school, improve response plans and train district staff members.
In Connecticut, police will be making more frequent visits to school buildings and doing periodic checks of buildings throughout the year, making sure students are aware of their presence.
"I've heard new alarms, new security with the doors, new cameras in the hallways which is reassuring," said Cindy Ramadanov, the parent of a school aged child.
The school also installed a box in the main office where students or anyone else can anonymously drop a note to report any situation.
"It makes me feel better. We weren't really aware last year, but we know the kids are safe," Ramadanov added.
Some school districts are only beginning to implement security measures that have become routine in other parts of the country. In Georgia, once the school day begins in some districts, the doors to the schools will be locked and visitors will need to press a button on a control panel to get in.
The control panel includes a video camera that allows staff inside the school to see who is at the door. Upon entering the school, visitors will follow the normal visitor procedures, signing in and showing identification to receive a visitor’s badge.
When visitors are ready to leave, they must exit the building through the main entrance and officially check out.
In Minnesota, some school districts installed "school safe activation buttons", commonly called panic buttons. The buttons can lock school entrances and trigger a school lockdown. Staff say the measures save precious time.
Other new security measures include flashing lights in hallways and outside of buildings that can alert students and staff to a lockdown. Students will soon undergo drills to better understand the new system, which is designed to create barriers in the threat of an intruder, allowing law enforcement more time to respond.
In the 21st century, unfortunately, returning to schools is about more than new books, old friends and the optimism of a new year.

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

Thursday, September 4, 2014

98-year-old woman seeks to clear her name in court

The 98-year-old retired math teacher believes that she may be the last living victim of the "hysteria" produced by Sen. Joseph McCarthy's crusade against communism, reported the New York Law Journal.
And she is determined to prove—64 years after her conviction for conspiracy to obstruct a grand jury's investigation of atomic espionage—that she is innocent. Her pro bono attorneys from Baker Botts have reached deep into the lawyer's toolkit for what they call an "exceptional" petition they hope will persuade Southern District Judge Alvin Hellerstein to vacate her conviction.
Miriam Moskowitz, of Washington Township, N.J. was a secretary to chemical engineer Abraham Brothman, who was suspected of passing documents to the Soviets, when they were arrested in 1950.
Along with her photo, a front-page New York Daily News headline read on July 30, 1950, "REDS SMASH ON IN FLANK ATTACK, Nab Man, Woman in Spy Plot.
"I was made out to be a monster, and I did nothing wrong," Moskowitz told Law Journal affiliate Am Law Daily. "All I want is to clear my name before it's too late."

To read more Click Here

Wednesday, September 3, 2014

Police monitor cellphone data without a warrant

The Tacoma, WA Police Department has for years been quietly using controversial surveillance equipment that can collect records of all cellphone calls, text messages and data transfers within a half-mile radius, according to Al Jazeera America.
The Stingray surveillance system, deployed by the Tacoma Police Department since 2009, “tricks cellphones into thinking it’s a cell tower and draws in their information,” The Olympian reported.
The device is reportedly capable of indiscriminate data collection, which worries civil rights advocates.
The American Civil Liberties Union (ACLU) said it has identified at least 43 police departments in 18 states that use Stingray equipment. The rights group said on its website that police use of such a device may violate the U.S. Constitution's Fourth Amendment, and with taxpayers’ money.
"The result is that police gather the electronic serial numbers and other information about phones, as well as the direction and strength of each phone's signal, allowing precise location tracking,” the ACLU said. “Stingrays can also gather information about people's communications, such as which phone numbers they call. Because we carry our cellphones with us virtually everywhere we go, Stingrays can paint a precise picture of where we are and who we spend time with, including our location in a lover's house, in a psychologist's office or at a political protest."
Tacoma Police Department’s Assistant Police Chief Kathy McAlpine said that officers only use Stingray with permission from a judge, and that they do not collect data.
“It is used in felony-level crimes to locate suspects wanted for crimes such as homicide, rape, robbery, kidnapping, and narcotics trafficking,” McAlpine said.
To read more Click Here

Tuesday, September 2, 2014

California institutes sweeping changes for incarcerating the mentally ill

California corrections officials unveiled sweeping new policies house the mentally ill in specially designed units, provide greater time out of their cells and offer vastly increased treatment for the ill prisoners, reported the Sacramento Bee.
The new policies dramatically alter the manner in which tens of thousands of state prison inmates are to be treated, and are designed to reduce the number of prisoner suicides and deaths.
The new policies call for the creation of short-term and long-term housing units where mentally ill inmates will have access to regular psychiatric care, as well as exercise and recreational equipment and greatly increased time out of their cells, the California Department of Corrections and Rehabilitation said.
The policies are designed to get roughly 2,450 mentally ill inmates out of solitary confinement cells where they have little access to other human beings or the ability to exercise outside, leading to further deterioration of their emotional and mental stability. Lawyers for the inmates have fought for years to improve conditions for their clients, many of whom end up in ultra-secure housing as punishment for violations stemming from their mental illnesses and an inability to control their actions and understand the consequences. Corrections officials could not give an estimate on the cost of the changes.
There are about 30,000 inmates considered to have a mental illness among the 116,000 housed in the state’s 34 adult prisons. The new policies are designed to discard a culture in which mental health staffers felt their concerns for the patients often were ignored and their instructions often overruled by custody staff in the name of security.
Inmate lawyers say the harsh conditions their clients have sometimes been subjected to exacerbate their illnesses. The new policies are aimed at avoiding that outcome by offering secure, standalone units where mentally ill inmates do not have to interact with the general population and can have more freedom of movement and more regular care.
To read more Click Here