Mangino talks lethal injection on KABC in Los Angeles

Listen to my interview on Dr. Drew Midday Live with Mike Catherwood on KABC in Los Angeles, California.  To listen CLICK HERE

Pennsylvania bill seeks to end civil asset forfeiture

A proposal to end civil asset forfeiture in Pennsylvania has bipartisan backing among state lawmakers, reported WESA-FM.
House and Senate plans would halt a practice that allows law enforcement to seize property from someone accused, but not convicted, of certain crimes.

The legislation would require law enforcement to first get a conviction before seizing any property. Under the House and Senate bills, any money generated from the seizure or sale of those items could not go straight into the coffers of the law enforcement unit.
The effort faces fierce opposition from prosecutors, some of whom use civil forfeiture to help fund their investigations. The Pennsylvania District Attorneys Association calls the policy is an important public safety tool and a way to take the profit out of drug crimes.
At a press conference Tuesday, several supporters hastened to add that they are not “anti-police.”
“We support law enforcement, we support our district attorneys,” said Rep. Tim Krieger (R-Westmoreland). “But no one should have their property taken from them without being charged.”
“We support the D.A.s," added Sen. Tony Williams (D-Philadelphia, "but we don’t support robbery represented in government, wrapped in the flag."
The city of Philadelphia, along with its police department and district attorney’s office, is facing a class-action lawsuit from property owners over its use of civil asset forfeiture.

To read more CLICK HERE

Supreme Court upheld use of Oklahoma execution drug

The U.S. Supreme Court on Monday upheld the use of a key drug used in Oklahoma's lethal injection protocol, reported The Huffington Post.

The lawsuit that prompted the decision was brought on by lead plaintiff Richard Glossip, an Oklahoma inmate who has been on death row for 17 years. Lawyers for the plaintiffs argued that midazolam, the first drug used in Oklahoma's three-part lethal injection protocol, can't reliably render an inmate unconscious and free of pain while the second and third drugs paralyze him and stop his heart, thus making the execution cruel and unusual punishment. Midazolam was first used in Oklahoma's botched execution of Clayton Lockett in 2014, and since then has been used in putting to death more than a dozen inmates.

GateHouse: Supreme Court makes it easier to prosecute child abuse

Matthew T. Mangino 

GateHouse Media 

June 26, 2015 

Confrontation plays a significant role in every criminal trial. Not the yelling, threatening, finger-pointing conduct we have grown accustomed to when we hear the word confrontation. The Sixth Amendment provides that an accused has the right to confront all witnesses against him.

In theory, the Confrontation Clause insures that a person charged with a crime has the right to come face-to-face with an accusing witness. That confrontation comes in the form of cross-examination.

Over time the Confrontation Clause was weakened by a series of court decisions. More and more statements made outside of court were being admitted at trial.

In 2004, the U.S. Supreme Court made a major Confrontation Clause decision barring most out-of-court statements of witnesses who were unavailable to testify at trial. The court reaffirmed that cross-examination is required to admit a prior testimonial statement of an unavailable witness.

According to Noah Feldman, a Bloomberg columnist, Justice Antonin Scalia’s opinion in 2004 required the court to ask whether the out-of-court statement was a form of testimony. If it was, the statement would be excluded; if not, it could be admitted. Scalia intended to toughen the standards for admitting testimony making it more difficult to admit statements made out of court when the witness was unavailable to testify.

Since 2004, the Supreme Court has examined the Sixth Amendment with differing results. The high court recently carved out an exception. The court ruled unanimously that if a child tells a teacher about a crime and the child is not old enough to testify in court, the statements made to the teacher may be used at trial without violating the Confrontation Clause.

The case, out of Ohio, involved comments made by a 3-year-old boy to his preschool teacher about physical abuse at the hand of his mother’s boyfriend. Prosecutors used what the boy said as evidence to help convict the boyfriend. Under Ohio law, children under age 10 are considered too young to be able to give competent testimony in court, so the boy was not called as a witness.

“The question in this case is whether the Sixth Amendment’s confrontation clause prohibited prosecutors from introducing those statements when the child was not available to be cross examined,” wrote Justice Samuel Alito. “Because neither the child nor his teachers had the primary purpose of assisting in [the boyfriend’s] prosecution, the child’s statements do not implicate the confrontation clause and therefore were admissible at trial.”

Justice Alito said that there could be additional circumstances in which an out-of-court statement to someone other than police could be used at trial without violating the Confrontation Clause. Alito went on to write that the out-of-court statement of a child too young to testify would almost always be admitted. 

 Justice Alito was joined by Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor. The three other Justices only supported the decision’s outcome, not Alito’s reasoning.  

Justice Scalia, in a separate opinion joined by Justice Ruth Bader Ginsburg, took on Alito for trying to undermine his 2004 opinion that sought to bolster the Confrontation Clause. Scalia in his usual caustic tone accused Alito of undermining a fundamental right protected by the U.S. Constitution. 

The decision is not a complete surprise. In this time of heightened sensitivity to physical and sexual abuse of children, this decision is a logical step in the ever expanding ability to prosecute and punish those who prey on children. 

According to the USA Today, those who advocate for educators were encouraged by the decision. “This case could have had a chilling effect on teacher-student interactions,” said Lily Eskelsen García, president of the National Education Association. “Teachers aren’t cops. To confuse those two roles could have hampered educators’ ability to help their students.” 

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 mattmangino.com and follow him on Twitter at @MatthewTMangino. 

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FBI police shooting figures 'way too low'

Tom Engelhardt wrote in The Nation that killings at the hand of police has been in the news a lot  lately. The figures the FBI have traditionally compiled on police shootings have proven to be way too low, so others have entered the fray. The Washington Post, for instance, recently began compiling a database of “every fatal shooting by police” in the United States in 2015. Their figure so far: at least 385  for the first five months of 2015 or approximately one of every 13  non-suicide gun deaths so far this year.
“About half the victims,” the Post reports, “were white, half minority. But the demographics shifted sharply among the unarmed victims, two-thirds of whom were black or Hispanic. Overall, blacks were killed at three times the rate of whites or other minorities when adjusting by the population of the census tracts where the shootings occurred.” A Guardian study  adds this detail: “Black Americans are more than twice as likely to be unarmed when killed during encounters with police as white people.”
According to  The Guardian, a recent Bureau of Justice report found that over the last eight years an average of 928 Americans have died annually at the hands of the police. (FBI figures: only 383.) In other words in those years, there were 7,427 police homicides, the equivalent of more than two 9/11s. Compared to other developed countries, these figures are staggering. There were, for instance, more fatal police shootings  in the United States in the month of March 2015 than Australia had between 1992 and 2011. Similarly, there have been almost three times as many police shootings in California alone in 2015 as Canada experiences annually.

To read more CLICK HERE

Mangino a guest on Weekend Today

Watch my appearance on WFMJ-TV Weekend Today talking about the U.S. Supreme Court decision on same-sex marriage and the anticipated decision on lethal injection.  To watch the interview CLICK HERE.

Mangino comments on U.S. Supreme Court same-sex marriage decision

Watch my interview on WFMJ-TV with regard to the landmark U.S. Supreme Court decision authorizing same-sex marriage.  To watch interview CLICK HERE

U.S. Supreme Court strikes federal mandatory minimum

The campaign against mandatory minimum prison terms got a boost this week when the Supreme Court struck down what justices termed a vague provision of a 1984 federal law that sets a minimum 15-year term for felons convicted of a third "violent felony or serious drug offense," according to The Crime Report. The law has been termed a federal version of "three strikes" laws that impose long penalties for repeat offenders. The case involved Samuel Johnson of Minnesota, a white supremacist with a long criminal record. Because that record included a conviction for possessing a sawed-off shotgun, it triggered the 15-year minimum sentence.

The law includes what the Wall Street Journal called "a catchall provision that has bedeviled the courts: any crime that 'presents a serious potential risk of physical injury to another.' " Lower courts have split over what crimes fall into that category, and the Supreme Court itself has heard five cases since 2007 involving the definition. Writing for the court's majority, Justice Antonin Scalia said that "Nine years’ experience trying to derive meaning from the [law] convinces us that we have embarked upon a failed enterprise." Dissenter Samuel Alito argued that, "Johnson’s offense qualified as a violent felony."

To read the full opinion CLICK HERE

PA court strikes down law permitting groups to sue over gun ordinances

Commonwealth Court has overturned a state law allowing gun enthusiasts and groups like the National Rifle Association to sue municipalities over local gun ordinances, reported the Pittsburgh Post-Gazette.
Act 192 of 2014 allowed state residents eligible to own a gun, or a group representing them, to challenge local gun ordinances anywhere in the state. If the plaintiffs prevailed, the municipality would have to pay their legal fees.
On Thursday, though, a seven-judge panel of the appellate court ruled that Act 192 violated constitutional rules governing the legislative process.
Senate Republicans say an appeal to the state Supreme Court is likely.
The court’s decision hinged on two constitutional provisions. One, the “single-subject rule,” requires that a bill’s provisions relate to a single topic. The second rule says bills cannot deviate from their original purpose during the legislative process.
Act 192 began as a measure establishing penalties for the theft of metals, such as copper and aluminum: The gun provisions were added in the final days of the 2014 legislative calendar. That addition, wrote Judge Robert Simpson for the majority, “clearly, palpably and plainly violates” the constitution.
While the ruling’s language is technical, Act 192 foes said the near-unanimous decision sent a strong message. Even the lone dissenter, Patricia A. McCullough, concurred in the final result, though on a more limited basis.
“We respectfully disagree with what the court has done,” said attorney Jonathan Goldstein, who represents the NRA in its lawsuit against Pittsburgh, and similar suits filed against Philadelphia and Lancaster. But “these ordinances were illegal ... prior to Act 192, and they remain illegal.” He said the NRA was considering its next step, adding that despite the ruling, “There are other bases for challenging these ordinances.”
Duquesne University law professor Bruce Ledewitz said such cases would either be tossed out or put on hiatus pending appeal. “If your lawsuit is premised on a statute that goes away, the lawsuit goes away,” he said.
Locally, the ruling will have little immediate impact. Pittsburgh is among the Pennsylvania cities with “lost and stolen” laws requiring residents to tell police if their guns go missing. But although the NRA sued over that law under Act 192, a judge halted the case while the constitutional challenge was pending.
Of course, there’s nothing to prevent legislators from resubmitting Act 192’s gun provisions in a new bill.
“We’re going to have a lot of members who will want to pursue a legislative remedy,” said Drew Crompton, the general counsel to Senate Republicans.
Bring it on, said gun-control advocates. “I think it will be a lot harder to pass this time around,” said Shira Goodman, executive director of CeaseFire PA. “People have seen their towns get sued: They know a lot more about it now.”
Despite the Commonwealth Court decision, Act 192 has already had an impact. Fearing costly litigation, many municipalities removed gun-control ordinances as it went into effect earlier this year. But Castle Shannon Mayor Donald Baumgarten, a member of Mayors Against Illegal Guns, said his municipality now might restore its lost-and-stolen ordinance.
“I certainly think we would put the law back on the books,” he said, though the borough would likely wait to see how a potential appeal plays out.
“Because who knows?” he said. “The Supreme Court could reverse it again.”
To read more CLICK HERE

Arkansas Supreme Court: Miller v. Alabama retroactive

The Arkansas Supreme Court ruled Friday that a U.S. Supreme Court decision three years ago applies retroactively in the state, the Arkansas Democrat-Gazette reported.
In 2012 the U.S. Supreme Court held in Miller v. Alabama that imposing an automatic life sentence without parole on someone younger than 18 was cruel and unusual punishment and a violation of the Eighth Amendment, reported the Juvenile Justice Information Exchange.
Arkansas is now the 12th state to rule the Miller decision retroactive, according to the Juvenile Law Center — with potentially life-changing consequences for inmates in those states. Since March, Florida and Connecticut have also ruled the decision retroactive, said Emily Keller, staff attorney with the Juvenile Law Center.
In the remaining states, thousands of inmates who committed crimes before they were 18 do not have the same redress. More than 1,000 inmates are in the seven states, including Louisiana and Pennsylvania, that have held that the Miller decision does not apply retroactively, Keller said.
The Supreme Court has agreed to take up the question in the case Montgomery v. Louisiana. It will hear the case in its next term, which begins in October, with a ruling expected within a year, she said.
The Juvenile Law Center estimates that 2,100 people across the country, sentenced when younger than 18, are serving mandatory life sentences without parole.
In these cases, the Supreme Court did not forbid life sentences for juveniles. It ruled that judges must consider their youth and the nature of the crime before handing down life without parole.
To read more CLICK HERE

Supreme Court expands use of child abuse reports at trial

The U.S. Supreme Court ruled last week that teachers' reports of child abuse based on conversations with young children can be admitted as testimony, despite a defendant's constitutional right to confront his accuser, according to the USA Today.
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.
The unanimous decision came in the case of a 3½-year-old Ohio boy whose wounds were visible to teachers at his day care center. Upon questioning, he said his mother's boyfriend was to blame.
Although the boy was too young to testify reliably in court, the teachers' reports were admitted at trial, resulting in Darius Clark's conviction and 28-year prison sentence.
Justice Samuel Alito, writing for the court's majority, said that the teachers' "primary purpose" in asking about the abuse was not to help the prosecution, so allowing their testimony did not violate Clark's constitutional rights.
When police take children's statements out of court and present it as testimony at trial, it can violate the confrontation clause. But in this case, Alito said, the child spoke to teachers immediately after his wounds were discovered, in an emergency setting on school grounds -- not in preparing courtroom testimony.
The ruling stopped short of saying that all such statements, delivered to people not associated with law enforcement, are admissible in court.

To read more CLICK HERE

The Vindicator: Hair-raising conclusions grow out of reviews of hair analyses

Matthew T. Mangino
The Vindicator
June 21, 2015
Two years ago, the FBI agreed to review more than 2,000 cases processed between 1985 and 2000 in which hair samples helped secure convictions. Some of the cases were in Ohio and Pennsylvania.
At the time, Peter Neufeld, of the Innocence Project, told McClatchy Newspapers, “The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented.”
The National Association of Criminal Defense Lawyers and the Innocence Project are assisting the government with this unprecedented review and the initial findings are startling and may be far-reaching.
Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification. For years, some agents went beyond the science and testified that their hair analysis was a near-certain match.
Although the FBI continued to support hair analysis, the accuracy of hair analysis came into question. A 2009 National Academy of Sciences report found no good studies of the technique’s error rates. The academy concluded that hair analysis had “limited probative value” and isn’t able to pinpoint individual defendants.
When the joint review was originally announced, FBI Special Agent Ann Todd said, “There is no reason to believe the FBI Laboratory employed ‘flawed’ forensic techniques,” adding that microscopic hair analysis is “a valid forensic technique and one that is still conducted at the lab” alongside DNA testing.
Todd noted, “the purpose of the review is to determine if FBI Laboratory-examiner testimony, and reports, properly reflect the bounds of the underlying science.” The early results of the review firmly challenge the validity of hair analysis and certainly the scope of the examiner’s testimony.
Recently, the U.S. Justice Department and FBI formally acknowledged that nearly every examiner in the FBI’s microscopic hair comparison unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period.
According to the Washington Post, of 28 examiners in the unit, 26 overstated forensic matches in ways that favored prosecutors.
According to the FBI, in the 268 cases where examiners provided testimony used to implicate a defendant at trial, erroneous statements were made in 257 – 96 percent – of the cases. Defendants in at least 35 of these cases received the death penalty, and errors were identified in 33 of those cases. Nine of the defendants already have been executed, and five died of other causes while on death row. The states with capital cases included Ohio and Pennsylvania.
When complete, the hair analysis review will encompass about 2,500 cases in which forensic examiners have testified about hair matches drawn from more than 21,000 federal and state requests to the FBI’s hair-comparison unit between 1972 and 1999, reported The New American.
Even if all of the federal cases are addressed, that might just be the tip of the iceberg. There are state and local crime-lab analysts who were trained by the same FBI examiners who gave the flawed testimony.
The FBI review is ongoing, according to Philadelphia Magazine, and the agency plans to examine thousands of additional cases across the country including those in Pennsylvania and Ohio. The number of cases could be extraordinary.
Now, state and local government offices will have to decide if they will conduct reviews and who will pay for those reviews.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll,” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

Visit The Vindicator CLCIK HERE

U.S. Supreme Court rules yet again on intellectual disability and capital punishment

The Supreme Court ruled last week that a Louisiana judge “unreasonably” denied a death row inmate a hearing to determine if he has an intellectual disability that would prevent him from being executed, reported Buzzfeed.com.

In 2002, the Supreme Court ruled in Atkins v. Virginia that our “evolving standards of decency that mark the progress of a maturing society” prohibits executing those with intellectual disabilities.
Kevan Brumfield pointed to evidence that his IQ is 75, “had a fourth-grade reading level, had been prescribed numerous medications and treated at psychiatric hospitals as a child, had been identified as having a learning disability, and had been placed in special education classes.”
At the time of his original trial, those with intellectual disabilities were still permitted to be executed.
Not every death row inmate has a hearing on their mental capabilities. In order to get a hearing on the issue, the condemned inmate has to raise “reasonable doubt” about the person’s intellectual capacity. A Louisiana court decided that Brumfield didn’t meet the requirements for a hearing to examine his mental capabilities.  The U.S. Supreme Court in Brumfield v. Cain called that finding “unreasonable.”
Last year, in Hall v. Florida the U.S. Supreme Court ruled that Florida's threshold requirement, as interpreted by the Florida Supreme Court, that defendants show an IQ test score of 70 or below before being permitted to have a hearing on intellectual disability was unconstitutional.
To read more CLICK HERE

South Carolina Governor calls for death penalty in Charleston shooting

South Carolina Gov. Nikki Haley called the shooting spree inside a Charleston church a hate crime
and said Friday that the accused gunman should face the death penalty, reported the Washington Post.
“This is an absolute hate crime, ” Haley, a Republican, said in an interview on the Today Show. “And when I’ve been talking with investigators as we’ve been going through the interviews, they said they looked pure evil in the eye yesterday. Without question this is hate."
“We absolutely will want him to have the death penalty,” Haley said Friday morning. “This is the worst hate that I’ve seen and that the country has seen in a long time.”
South Carolina has the death penalty and carries out executions by lethal injection, though the state has not put an inmate to death since 2011. State law says that prosecutors can seek the death penalty if there are certain “aggravating circumstances” in the case.
One of these aggravating circumstances is when the person in question is charged with murdering two or more people during a single act. Other aggravating circumstances include killing a law enforcement officer, killing a child age 11 or younger or killing a person while carrying out another crime like a robbery.
In South Carolina, if prosecutors seek the death penalty and show that aggravating circumstances were involved, the person on trial can be sentenced to death or life in prison without parole.
To read more CLICK HERE

GateHouse: Hollywood goes to trial, military style

Matthew T. Mangino
GateHouse Media
June 19, 2015

Oklahoma Attorney General Scott Pruitt has intervened on behalf of Lance Cpl. Monifa Sterling, who is appealing her court martial to the U.S. Court of Appeals for the Armed Forces. Sterling was court-martialed after posting Bible verses in her government work space and refusing orders to remove them.

Pruitt claims the military court erred by refusing to afford Sterling protections of the Religious Freedom Restoration Act, and contends the case could impact the religious freedoms of military citizens living in Oklahoma, reported The Associated Press.

Although an important issue, this is not exactly the high drama we have come to expect from court martials depicted in Hollywood movies. This is not to diminish the gravity of Sterling’s case, but four pictures that do “justice” to military trials are “The Caine Mutiny,” “Paths of Glory,” “Breaker Morant” and “A Few Good Men.”

“The Caine Mutiny” was based on the Pulitzer Prize-winning novel by Herman Wouk. The movie was nominated for seven Academy Awards, including Best Picture, in 1954. Captain Queeg, played by Humphrey Bogart, was relieved of his command at sea. The alleged mutineers were court martialed. Jose Ferrer played the capable defense attorney who reluctantly dismantled Captain Queeg during one of Hollywood’s most dramatic cross-examinations.

Paths of Glory, released in 1957, was based on a novel by Humphrey Cobb. The novel was loosely based on the court-martial and execution of four French soldiers during World War I. Kirk Douglas played Colonel Dax, a unit commander, who was a lawyer in civilian life. He defended the soldiers charged with cowardice after they refused to continue a suicidal attack.

The trial was a predetermined exercise to set an example for the rest of the French army. Colonel Dax, well aware of his clients’ fate, memorably told the court, “Gentlemen of the court, there are times that I’m ashamed to be a member of the human race and this is one such occasion.”

“Breaker Morant” was an Australian film released in 1980. The movie was also based on a true story. The movie explores, in detail, the court-martial of three Australian soldiers, carrying out unwritten orders to kill Dutch prisoners of war during the Boer War in 1902. The movie won a Golden Globe for best foreign film. The courtroom action is entertaining as typified by this exchange during the examination of a prosecution witness:

Prosecutor: How did Lt. Handcock look?

Witness: Like he was thinking, sir ... like ... I can’t think of the ...

Prosecutor: Did he look like he was agitated?

Witness: Agitated? Yes, that’s it, sir. Yes, sir, he looked agitated.

Defense Attorney: Objection. Major Bolton (prosecutor) is leading the witness.

Prosecutor: I will rephrase the question, sir. Tell me, how did Lt. Handcock look?

Witness: Agitated, sir!

The final film, “A Few Good Men,” was released in 1992. Originally written as a play and adapted for the big screen, the movie is based, in part, on a real incident that occurred at the Guantanamo Bay naval base.

Two Marines are on trial for carrying out a Code Red order that resulted in the death of another Marine. The code was ordered by the base commander to bring a wayward Marine into line. The movie’s well-known ending, with Tom Cruise as Lt. Kaffee and Jack Nicholson as Colonel Jessup, lights up the screen with one of film’s all-time great cross-examinations.

The lead-up to, “You can’t handle the truth,” is so well underplayed that it is often forgotten. As Lt. Kaffee’s examination seems to unravel, Colonel Jessup goads him into the decisive confrontation, “Now, are these the questions I was really called here to answer? Phone calls and foot lockers? Please tell me that you have something more, Lieutenant. These two Marines are on trial for their lives. Please tell me their lawyer hasn’t pinned their hopes to a phone bill.”

If you haven’t seen them, all four films are worth watching. If you have seen them, they’re worth another look.

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

To visit the column CLICK HERE

Texas execution killer after14 years on death row

The 17th Execution of 2015

Nearly 14 years after he was convicted of beating a Tyler car mechanic to death, Gregory Russeau was executed on June 18, 2015, reported KLTV.

Gregory Russeau died shortly before 7 p.m., minutes after being given lethal injection at the Texas State Penitentiary at Huntsville.

In a final statement, Russeau said he was at peace, saying, "Yes, I would like to thank my family and friends for what y'all have done for me. Thank you for being here with me that I do not have to transition alone. I have peace. To my daughter, I love you, to my grandbabies, sisters and brothers, I love you. I am ready to go home.”

According to Associated Press, the Supreme Court last October refused to review his case, and there were no additional appeals filed in the courts before his execution. The Texas Board of Pardons and Paroles this week rejected a clemency petition.

Russeau was convicted of capital murder and sentenced to death in the 2001 death of 75-year-old James Syvertson, whose body was discovered inside his Tyler business.

Russeau is the ninth inmate to receive a lethal injection this year in Texas, which carries out capital punishment more than any other state.

To read more CLICK HERE

Terry Williams responds to DA's King's Bench suit against PA governor

The Philadelphia District Attorney’s Office filed a King's Bench action before the Pennsylvania Supreme Court  against Governor Tom Wolf for imposing a moratorium on executions by vowing to exercise his constitutional authority to grant reprieves.

 

District Attorney Seth Williams argued that Governor Wolf’s reprieve for Terry Williams was inconsistent with the historical use of the constitutional power because the reprieve did not have a specific end date and was not issued to permit Mr. Williams to pursue relief in a court proceeding. 

 

According to a press release, Terry Williams' attorneys filed a brief this week, urging the Supreme Court to “decline the invitation to judicial activism”  stating that “[i]n this Court’s nearly 300-year existence, it has never interfered with a reprieve. And the historical use of reprieves reflects a unilateral, discretionary executive power.” 

 

Attorneys for Terry Williams suggest, “Pennsylvania law and history are clear regarding the power of reprieves by a Governor: reprieves are unilateral, made at the Governor’s discretion, and are limited in no way. They don’t require a time limit, a stated reason or the input of any other branches of government.” 

 

The brief filed presents a detailed account of numerous reprieves issued since 1718, including:

• Governor Corbett issued an indefinite reprieve in 2014 due to the nationwide unavailability of lethal injection drugs;

• Governor Lawrence announced in 1961 that he would issue reprieves to establish a moratorium on executions while a legislative committee studied capital punishment;

• Governor Porter issued a reprieve in 1841 to postpone an execution while the legislature considered abolishing the death penalty;

• Numerous examples where Pennsylvania governors have invoked their unilateral reprieve power to postpone executions – without providing a reason and without setting an end-date – between 1718 and the 20th century;

• Numerous examples where governors in other states have used their reprieve power to establish moratoria on executions or to permit problems with the death penalty system to be studied.  

Reprieves dating back hundreds of years are documented, including an indefinite reprieve to Daniel

Hoffman issued in 1787 when Benjamin Franklin was the President of Pennsylvania.

 

To read the brief CLICK HERE

 

The Constitution Project shows supports for Smarter Sentencing Act

Former judges and prosecutors from across the country are urging Congress to adopt the Smarter Sentencing Act, bipartisan legislation designed to relieve the nation's overcrowded prisons by giving federal judges more discretion in sentencing those convicted of nonviolent drug offenses, said The Constitution Project in a press release. 

 

"Maintaining the status quo in federal sentencing policy is both fiscally imprudent and a threat to public safety. We are deeply concerned that spending on incarceration has jeopardized funding for some of our most important law enforcement priorities," wrote the 130 former judges, prosecutors and law enforcement officials in a letter organized by The Constitution Project and delivered to the House and Senate Judiciary Committees today.

 

The United States has seen a 500 percent increase in the number of inmates in federal custody over the last 30 years, and almost half of all federal inmates are serving sentences for drug offenses. Additionally, over the past three decades, spending on federal incarceration has increased by more than 1100 percent.  In 2014, the Congressional Budget Office estimated that implementation of these reforms would save taxpayers approximately $4 billion over ten years.

 

To read more CLICK HERE

PA Supreme Court strikes down mandatory minimum

The Pennsylvania Supreme Court has stuck down mandatory minimum sentencing for selling drugs within 1,000 feet of a school.  The decision seems to put in jeopardy the application of mandatory minimum sentences by a judge by a preponderance of the evidence, upon notice by the district attorney.  The decision relies on the U.S. Supreme Court decision in Alleyne v. United States, ___ U.S. ___ , 133 S.Ct. 2151 (2013). Read my recent column in the Pennsylvania Law Weekly on a related matter.
The Pennsylvania decision written by Justice Debra Todd is Commonwealth v. Kyle Joseph Hopkins, 98 MAP 2013.
To read the full opinion CLICK HERE

Former Texas prosecutor disbarred for misconduct during death penalty trial

The State Bar of Texas disbarred a former Texas prosecutor for prosecutorial misconduct that landed a man on death row for 18 years, reported the Houston Chronicle.
Anthony Graves sat on death row for more than a dozen years and told anyone who would listen that the prosecutor in his 1994 capital murder trial withheld evidence, presented false testimony and lied to the judge.

At the time, few people believed the stunning allegations against Burleson County District Attorney Charles Sebesta.

Last week, State Bar of Texas officials told Graves he was right and had disbarred Sebesta for prosecutorial misconduct, an exceptionally rare punishment for an elected district attorney.
Graves, who faced two execution dates and spent more than 18 years behind bars for a crime he did not commit, has become one of the signature exoneree cases in Texas during the last decade. He said the ruling against Sebesta was vindication and quoted Shakespeare.
"The worm has finally turned," he said. "And it's pointing toward justice now. It's a good day."
Graves learned of the decision during a conference call with his attorneys and State Bar officials. He said the ruling bodes well, not just for him but for others seeking justice.               
"This is a great start, by disbarring a prosecutor who attempted murder on my life," he said. "We should rejoice that today a man received justice in the criminal justice system, and the state itself helped me to achieve that."
The State Bar's disciplinary panel said in a six-page ruling that Sebesta failed to provide several items of exculpatory evidence to the defense during Graves' trial, presented false testimony to the jury, made a false statement of material fact to the trial judge and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.
To read more CLICK HERE

GateHouse: Rethinking bail: Protecting the public and the pocketbook

Matthew T. Mangino
GateHouse Media
June 14, 2015

Even as local government budgets become leaner, policy makers struggle to balance the ledger. One area of spending continues to be a burden with no real end in sight—corrections.
A significant amount of local revenue goes toward corrections—the local county jail—and half of those costs can be attributed to inmates in pretrial detention. Those are individuals who have been arrested, accused of a crime—not convicted—who remain in jail awaiting trial.
Pretrial detention increased at the same time “get tough” policies drove prison populations to unprecedented heights. In the 10 years between 1996 and 2006, the number of people held in pretrial detention in local jails increased by more than 20 percent. According to a study by Northwestern University, fewer people were released pretrial without bail and fewer were granted bond.
The primary purpose of bail is to insure that the defendant appears for all future court proceedings. Bail is not punitive, its purpose is administrative. Many pretrial detainees are low-risk defendants, who, if released before trial, are highly unlikely to commit other crimes and very likely to return to court. Others present moderate risks that can often be managed in the community through supervision, monitoring, or other interventions.
Failure to grant pretrial release may come in the form of setting a bond that is beyond the defendant’s ability to post. Bond need not be a million dollars to be excessive. For some defendants a $2,500 bond, that may require a $250 payment to a surety company, is beyond reach.
What does that mean for taxpayers? If a defendant with a $2,500 bond can pay $250 he is out and on the street. If not, taxpayers are on the hook.
The United States leads the world in the number of pretrial detainees, according to a report by the National Institute of Corrections, an agency of the Department of Justice. The report found that, at midyear 2011 about 61 percent of inmates in local jails were not convicted, they were awaiting court action on a pending charge—a rate that hasn’t changed since 2005—at an estimated cost of over $9 billion per year.
Some defendants being held pretrial belong in jail. Some are not eligible for bail, some are a legitimate flight risk and others a danger to society. However, some just can’t afford a monetary bond.
“It sets up a system where first there’s the punishment, and then there’s the opportunity to go to court for trial,” Paul DeWolfe, the Maryland state public defender, told the New York Times.
Though monetary bonds has long been the law in a majority of states across the country, the practice is coming under increasing scrutiny in the face of recent research that questions its effectiveness and bipartisan efforts to reduce incarceration rates and correction costs.
Detaining an accused pre-trial also has a detrimental impact on families, employment and the viability of neighborhoods and communities disproportionately affected by the criminal justice system.
According to the Times, Colorado and New Jersey recently voted to overhaul their bail systems. In several states, including Connecticut, New York and Arizona, either the state’s chief justice or lawmakers are calling for change to pretrial detention practices.
The first step toward easing the cost of pretrial detention is the ability to determine who needs to be detained and who doesn’t. The Department of Justice suggests a “focus on individualized assessments of risk, as opposed to making categorical assumptions based solely on charging and other factors.”
Once courts have the tools to determine who should be detained the system can explore detention diversions for those who don’t need to be in jail. House arrest, electronic monitoring and day reporting are all much more cost effective—and just as safe—than locking away a defendant awaiting trial.

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

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PA prisons house about 13,000 mentally ill inmates

Approximately 24 percent, or 13,000 inmates, are on the department's mental health roster and about 4,000 inmates of those inmates are "seriously mentally ill," reported the Harrisburg Patriot-News.
"We've made significant advancement over the past 20 months where we believe we're in a position where we have the best prison mental health system in the country," said Corrections Secretary John Wetzel.
Wetzel said the Pa. Department of Corrections has created mental health hospital units around the state, increased staff training on mental health first aide, implemented crisis intervention team training for 500 prison staff members and created a peer-specialist program for inmates.
"We've done a bunch of stuff around mental health," Wetzel said.
The Office of Mental Health Advocate was also created to ensure offenders are getting the treatment they need in and out of prison.
Wetzel said the department is also working on creating halfway houses specifically for mentally ill offenders for when they leave prison. The pilot program would enable prison officials to connect offenders with local county behavioral health experts.
"That's a really exciting pilot," Wetzel said. "I'm hoping that it ends up being a short, successful pilot that we scale statewide."
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Murders soar in Baltimore to nearly 40 year high

A month and a half after six Baltimore officers were charged in the death of Freddie Gray, policing has dwindled in some of the city’s most dangerous neighborhoods, and murders have risen to levels not seen in four decades, The Crime Report commented on a New York Times story. Police union officials say that officers are still coming to work, but that some feel a newfound reluctance and are stepping back, questioning whether they will be prosecuted for actions they take on the job, reports the New York Times. Around the nation, communities and police departments are struggling to adapt to an era of heightened scrutiny, when every stop can be recorded on a cellphone. Residents, clergy members and neighborhood leaders say the past six weeks have made another reality clear: that as much as many people may legitimately fear and distrust the police, the solution has to be better policing, not a diminished police presence.

 At least 55 people, the highest pace since the early 1970s, have been murdered in Baltimore since May 1, when prosecutor Marilyn Mosby announced the criminal charges against the officers. Victims of shootings have included people involved in criminal activity and young children who were simply in the wrong place. Mosby’s charges were seen as calming the city. They enraged the police rank and file, who pulled back. The number of arrests plunged, and the murder rate doubled. The reduced police presence gave criminals space to operate, according to community leaders and some law enforcement officials. Soaring violence has made Baltimore a battleground for political arguments about whether a backlash against police tactics has led to more killings in big cities like New York, St. Louis and Chicago, and whether “de-policing,” as academics call it, can cause crime to rise.

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Nebraska sheriffs want to bring back recently abolished death penalty

Just three weeks after Nebraska’s legislature nixed the death penalty, sheriffs in the state unanimously agreed they want to bring it back, according to the World-Herald News Service. The Nebraska Sheriffs’ Association has voted unanimously to back a petition aimed at restoring the death penalty.
The group met in Grand Island at the Nebraska Law Enforcement Training Center.

“It’s important because of the public safety issue,” said Grant County Sheriff Shawn Hebbert, who is president of the sheriffs’ association.

“The death penalty works as a deterrent to protect our guards and our people who work in corrections, as well as our deputies,” he said.

More than 30 sheriffs from across Nebraska attended the association meeting on Wednesday.

They were strongly against the Legislature’s 32-15 vote on LB268, which repealed the death penalty. Gov. Pete Ricketts vetoed LB268, but the Legislature countered with a 30-19 vote to override the veto.

That action is contrary to the beliefs of the majority of Nebraskans, the sheriffs said.

“It’s been unanimous across the state ... that we need to keep the death penalty, and I think that shows the strength of our organization and the backing and support we have in the organization that we have to protect the public,” Hebbert said on Wednesday.

Not only did the association members support backing the petition drive led by Nebraskans for the Death Penalty, but Hebbert said many of the sheriffs in attendance will be carrying the petitions in their home counties.
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Missouri executes killer of girlfriend and her daughter

The 16th execution of 2015
The state of Missouri executed Richard Strong convicted of fatally stabbing his girlfriend and her 2-year-old daughter almost 15 years ago, reported Reuters.
Strong, 48, was put to death by lethal injection at the state's death chamber in Bonne Terre, Missouri, where he was pronounced dead on June 9, 2015 at 6:58 p.m., said prison spokesman Mike O'Connell. Strong was the fourth person executed in Missouri in 2015.
According to court records, Strong had dark red stains on the knees of his pants and was sweating profusely when police responded to a 911 call at his girlfriend's home near St. Louis in October 2000.
An officer kicked in the door after seeing what appeared to be blood on Strong's hand. Strong ran, repeatedly shouting: "Just shoot me" and then: "I killed them" when he was captured moments later, according to court papers.
Authorities found the bodies of Eva Washington and Zandrea Thomas, who had been stabbed nine and 21 times, respectively.
Strong's 3-month-old daughter with Washington, Alyshia Strong, was unharmed. Alyshia Strong, now a teenager, asked Missouri Governor Jay Nixon to grant her father clemency, saying it would be wrong for her to suffer another loss.
Nixon rejected the request on Tuesday, saying in a statement that the killings of Washington and Thomas "were very brutal."
The U.S. Supreme Court also denied requests to stay Strong's execution on Tuesday.
Strong's attorneys had said in appeals to the Supreme Court that he had a history of mental illness and major depression and did not have the capacity to make a rational decision when he committed the killings.
They also sought a stay based on a case before the U.S. Supreme Court that challenges the use of a particular drug in lethal injections and have argued that Missouri's execution method posed a substantial risk of causing severe and unacceptable pain and suffering.
Missouri prosecutors said in court filings opposing a stay that the state had carried out "uniformly rapid and painless executions on almost a monthly basis using pentobarbital as the lethal chemical since November 2013."
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The Crime Report: The ‘Scarlet Letter’: One Mistake Shouldn’t Ruin a Life

Matthew T. Mangino
The Crime Report
June 9, 2015
Philadelphia Mayor Michael Nutter once suggested that Philadelphians who have served their time in prison will no longer be referred to as “ex-offenders”—they will be called “returning citizens.”
The executive director of the Office of Re-Integration Services told the Philadelphia Inquirer, at the time, that he hoped the new term would have a “cognitive effect” on those returning from prison.
That is sort of like saying we’re going to call cancer “silly cells” and hope that patients will think they’re not sick.
The problem isn’t that people being released from prison are called “ex-offenders”; the problem is that we’ve made it so difficult for ex-offenders to find jobs, homes and opportunity that society almost guarantees failure.
A 2010 survey by the Society for Human Resource Management found that 92 percent of their members, which are mostly large employers, perform criminal background checks on some or all job candidates.
In another study, Harvard criminologists Bruce Western, Devah Pager and Naomi Sugi found that a criminal record reduces the likelihood of a job callback, or offer, by nearly 50 percent.
An estimated 65 million U.S. adults have criminal records. They often confront barriers that prevent even the most qualified from securing employment, according to the National Employment Law Project.
A single criminal conviction should not tarnish a life otherwise spent abiding the law. A criminal record should disappear over time, and there is research to support that proposition.
If an offender has a history of criminal conduct that stretches over time, then the record should be preserved and used to enhance penalties and warn employers, the public and law enforcement that this individual is potentially dangerous and definitely a criminal nuisance.
On the other hand, an offender who has gone crime-free for a period of time should have his criminal record removed.
In 2009, Alfred Blumstein and Kiminori Nakamura of Carnegie Mellon University wrote in Redemption in the Presence of Widespread Criminal Background Checks that there comes a time after a period of crime-free behavior when an ex-offender is no more likely to commit a crime than the general population.
Their analysis was based on a statistical concept called the "hazard rate." The hazard rate is the probability, over time, that someone who has stayed clean will be rearrested. For a person who has been arrested in the past, the hazard rate declines the longer the former offender remains arrest free.
The Blumentstein-Nakamura study examined the hazard rate for 18-year-olds when they were arrested for a first offense of one of three crimes: robbery, burglary and aggravated assault. For robbery, the hazard rate declined to the same arrest rate for the general population of same aged individuals at age 25.7 or 7.7 years after the robbery arrest. After that point, the probability that the convicted individual would commit another crime was less than the probability of other same aged individuals in the general population.
The study also examined the effect of the arrestee's age at the time of his first arrest. The researchers examined the hazard rates for three ages of people in the study group—16, 18 and 20-years-olds—who were arrested for robbery.
In contrast to the findings with regard to 18-year-olds cited above, those whose first arrest occurred at age 16 drew even with same-aged individuals in the general population 8.5 years later. Individuals who were first arrested at age 20 caught up with the general population 4.4 years after their first arrest.
The analysis showed that the younger an offender was when he committed robbery, the longer he had to stay arrest-free to reach the same arrest rate as people his same age in the general population. The researchers found similar results for first offense burglary and aggravated assault.
Why shouldn’t an ex-offender, crime-free for 10 years, have his or her criminal record purged?
In Pennsylvania, a second DUI more than 10 years after a first DUI is not compounded for purposes of sentencing. The state legislature felt that convictions so far apart were not indicative of a pattern of alcohol abuse and driving. In addition, the DUI offender’s record can be expunged.
However, if a person gets arrested for theft, and is crime-free for 15 years, he still has a criminal record. Although, that offense will not enhance the potential penalties if there is a subsequent offense, it will follow the offender like a scarlet letter.
A 20-year-old college student who enters a fraternity house and breaks some windows as part of an alcohol-fueled prank, gets convicted of burglary—and struggles with that label for the rest of his life. In Pennsylvania, nothing short of a governor’s pardon will clear his record.
It is time to rethink how, and to what extent, we punish in this country.
Punishment should not be a stigma that attaches and never let’s go. Science tells us there is a better way, and policymakers should take heed.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino). He welcomes comments from readers.
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Secretary Wetzel: The United States has 'overused incarceration'

The United States has "overused incarceration" as a response to crime but consensus is lacking on how to reduce the numbers significantly, says Pennsylvania Corrections Secretary John Wetzel. Wetzel, who runs one of the nation's largest prison systems, told a panel in Philadelphia at the Investigative Reporters and Editors annual conference that his state has managed to reduce the prison count by about 1,200 in the last few years, reported The Crime Report. He acknowledged that dealing with inmates who are mentally ill is one of his greatest challenges. About one-quarter of Pennsylvania's prisoners have some kind of mental illness, meaning that the state is responsible for treating about 12,000 people behind bars, Wetzel said. He agreed that prison authorities had subjected too many mentally-ill inmates to solitary confinement, often making their problems worse.
In January, Pennsylvania settled a lawsuit by agreeing to stop putting seriously mentally ill inmates in solitary. Another speaker on Friday, Philadelphia civil-rights lawyer and law professor David Rudovsky, seemed dubious that the U.S. would soon reduce what he termed the "prison-industrial complex," noting that the jobs of many prosecutors, criminal defense lawyers, and corrections system employees depend on a large corrections system. More than 2 million people are behind bars around the nation, making the U.S. the world's incarceration leader. Eileen Sullivan of the Associated Press discussed stories she had written this year on the growing use of "risk assessment" tools by corrections authorities to help decide which prisoners and pre-trial defendants should be released, urging journalists to examine how these systems are being used. Julie Brown of the Miami Herald described her reporting on "horrific" conditions in some Florida prisons, saying she was surprised at the high level of public interest in reporting on how the state is housing its more than 100,000 inmates. The panel was organized by Criminal Justice Journalists, the co-publisher of Crime & Justice News.
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Poll shows death penalty falling behind life without parole as preferred penalty

A majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls.
Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty - the fewest in polls dating back 15 years. The result follows a botched execution by lethal injection in Oklahoma in late April.

Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That's down sharply from 80 percent in 1994.Clearly there's remaining ambivalence; when offered the option of life imprisonment with no chance of parole, 29 percent of death penalty supporters prefer the alternative.

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Justice Scalia’s example of the perfect case for the death penalty ends in exoneration

A little over two decades ago, Supreme Court Justice Antonin Scalia was dismissive of then-Justice Harry Blackmun’s concerns about the death penalty. In fact, Scalia had a case study in mind that demonstrated exactly why the system of capital punishment has value, reported MSNBC.

 

As regular readers may recall, Scalia specifically pointed to a convicted killer named Henry Lee McCollum as an obvious example of a man who deserved to be put to death. “For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat,” Scalia wrote in a 1994 ruling. “How enviable a quiet death by lethal injection compared with that!”

 

For Scalia, McCollum was the perfect example – a murderer whose actions were so heinous that his crimes stood as a testament to the merit of capital punishment itself.

 

Yesterday, McCollum was pardoned. Scalia’s perfect example of a man who deserved to be killed by the state was innocent. North Carolina’s News & Observer reported:

Gov. Pat McCrory on Thursday pardoned two half-brothers who were exonerated of murder after spending three decades in prison.

 

The governor took nine months to make the decision, saying he thoroughly reviewed the pardons sought by Henry McCollum and Leon Brown. Both men are intellectually disabled.

If this story sounds at all familiar, it was last fall when a judge ordered the men released. The confessions appeared to have been coerced 30 years ago and new DNA evidence implicated another man whose possible involvement had been overlooked at the time.

 

As recently as 2010, the North Carolina Republican Party used a McCollum photo on campaign fliers to attack a Democratic candidate as “soft on crime.”

 

McCollum hadn’t done anything wrong.

 

The pardon is a welcome development, though the News & Observer added that the middle-aged men, after having spent most of their lives behind bars – and on death row – for a crime they didn’t commit, are struggling.

[T]he men have been living with their sister, who has struggled to pay rent and utilities on her home in Fayetteville. The Center for Death Penalty Litigation established a fund to help them survive.

 

Each man now qualifies for $50,000 for each year they were imprisoned, up to a maximum of $750,000. They needed a gubernatorial pardon in order to collect the compensation.

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GateHouse: Big Brother is tracking you

Matthew T. Mangino
GateHouse Media
June 5, 2015
The FBI is watching. No, it’s not the Hooveresque G-men following a high-profile target and building an incriminating, or at least embarrassing, dossier.
The FBI is watching you. According to an investigation by The Associated Press, during a recent 30-day period, the FBI conducted aerial surveillance over more than 30 cities in 11 states.
The FBI is admittedly operating a small air force. A fleet of low-flying planes carrying video surveillance technology — and using shell companies and clandestine tactics to hide the FBI’s involvement — are in operation across the U.S., reported CBS News.
“The FBI’s aviation program is not secret,” FBI spokesman Christopher Allen said in a statement. “Specific aircraft and their capabilities are protected for operational security purposes.” Allen added that the FBI’s planes “are not equipped, designed or used for bulk collection activities or mass surveillance.”
Yet the FBI uses planes registered under fictitious companies in order to conduct warrantless surveillance during federal, state and local investigations. The surveillance is conducted without a court order, but with oversight from within the Department of Justice, according to a senior law enforcement official, reported CNN.
U.S. law enforcement officials confirmed the wide-scale use of aircraft, which The Associated Press traced to at least 13 fake companies, such as FVX Research, KQM Aviation, NBR Aviation and PXW Services.
The FBI said it uses front companies to protect the safety of the pilots and aircraft. It also shields the identity of the aircraft so that suspects on the ground don’t know they’re being watched by the FBI.
Does the FBI have the right to watch American citizens from the sky?
The Fourth Amendment, which provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” has protected American’s privacy interests for more than two centuries.
In 1986, the U.S. Supreme Court held that the “Fourth Amendment simply does not require the police traveling in the public airways ... to obtain a warrant in order to observe what is visible to the naked eye.”
The FBI planes are equipped with technology that can capture video of unrelated criminal activity on the ground that could be handed over to prosecutions.
Some of the aircraft are also be equipped with technology that can identify thousands of people below through the cellphones they carry, even if they’re not making a call or in public. Officials said that practice, which mimics cell towers and gets phones to reveal basic subscriber information, is used in only limited situations, reported CBS News.
The planes’ surveillance equipment is generally used without a judge’s approval, and the FBI said the flights are used for specific, ongoing investigations.
There are a number of potential abuses that concern privacy experts. One is voyeurism. An NYPD helicopter pilot, who filmed a couple on their rooftop balcony defended the four minute video-tape — “this is what police helicopters are supposed to do, check out people to make sure no one is doing anything illegal,” reported the ACLU.
There is also concern over discriminatory targeting, focused on certain racial minorities: institutional abuse focusing surveillance on certain groups like political protesters; and automated enforcement which may be subject to technological limitations and the lack of a human factor on the ground.
The FBI contends that the surveillance flights comply with agency rules. Those rules limit the types of equipment the agency can use, as well as the justifications and duration of the surveillance, reported CNN.
However, the scope of the surveillance and the fact that there is no judicial review makes the surreptitious use of a nationwide fleet of airplanes a bit unnerving.

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

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Nevada abolishes juvenile life without parole

Nevada recently became the 13th state to abolish life-without-parole sentences for those under 18 after Gov. Brian Sandoval signed Assembly Bill 267 into law.
The legislation eliminates the option of sentencing youth to life without parole, which has been a growing trend across the country in recent years, according to the Campaign for the Fair Sentencing of Youth, a nonprofit advocating for the issue and based in Washington, D.C.
An estimated 12 people in Nevada will be directly impacted by the new law and will become eligible for parole once the legislation goes into effect Oct. 1, said James Dold, advocacy director for the campaign. The campaign worked closely with Hambrick on the bill and some of its members testified in support of the measure. The number of people affected could go up as the law is implemented.
“Finally, Nevada law has caught up and recognizes that children are different than adults and those differences need to be taken into account,” Dold said.
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Texas executes man who spent 31 years on death row

The 15th Execution of 2015
Texas executed Lester Bower on June 3, 2015, one of the longest-serving inmates on the state's death row who had said he was wrongly convicted of killing four men in 1983 and had spent three decades trying to halt his capital punishment, reported Reuters.
Bower was pronounced dead at 6:36 p.m. CDT after being given a lethal injection at the state's death chamber in Huntsville, a prisons official said.
A former chemical salesman with two children, Bower became the oldest death row inmate put to death in Texas since the U.S. Supreme Court reinstated the death penalty in 1976. The state has executed 526 people in the period, the most of any state.
A few hours before the execution, the U.S. Supreme Court rejected a last-minute appeal filed by lawyers for Bower, who had already faced imminent execution six times, according to court papers.
He was found guilty of killing contractor Bob Tate, former police officer Ronald Mayes, sheriff's deputy Philip Good and interior designer Jerry Brown in a deal for a $4,000 ultra-light airplane that went bad.
Prosecutors said Bower killed Tate to steal the airplane Tate was selling and then killed the other three when they unexpectedly showed up at the hangar.
Investigators said they found parts from Tate's airplane at Bower's residence and that he had made calls to Tate. They said Bower, who also sold firearms, had acquired a gun and exotic ammunition similar to what was used in the killings.
In an interview published this week in the Fort Worth Star-Telegram, Bower, who had no criminal record prior to his arrest, said he did not commit the crimes and was wrongly convicted.
"What's more, I feel we have had a reasonable number of people come forward with credible stories to say I did not commit these murders," the newspaper quoted him as saying.
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Texas set to execute 67-year-old man for quadruple murder 31 years ago

The state of Texas is set to execute one of the longest-serving inmates on the state's death row after he has spent three decades trying to halt the punishment, according to Reuters.

Lester Bower, 67, says he was wrongly convicted of killing four men in 1983 and has maintained his innocence.

Lawyers for Bower filed a last-minute appeal with the US Supreme Court last week seeking to prevent the execution by lethal injection scheduled for 6pm local time today at the state's death chamber in Huntsville.

The state said he is guilty of fatally shooting the four men in a deal for a $4,000 ultra-light airplane that went bad and there is no compelling legal reason to further delay the execution.

Bower has faced imminent execution six times while in prison.

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Police shooting deaths occuring at more than twice the rate thought

At least 385 people have been shot and killed by police nationwide during the first five months of this year, more than two a day, according to a Washington Post analysis. That is more than twice the rate of fatal police shootings tallied by the federal government over the past decade, a count that officials concede is incomplete.
“These shootings are grossly under­reported,” said Jim Bueermann, a former police chief and president of the Washington-based Police Foundation, a nonprofit organization dedicated to improving law enforcement. “We are never going to reduce the number of police shootings if we don’t begin to accurately track this information.”

A national debate is raging about police use of deadly force, especially against minorities. To understand why and how often these shootings occur, The Washington Post is compiling a database of every fatal shooting by police in 2015, as well as of every officer killed by gunfire in the line of duty. The Post looked exclusively at shootings, not killings by other means, such as stun guns and deaths in police custody.

Using interviews, police reports, local news accounts and other sources, The Post tracked more than a dozen details about each killing through Friday, including the victim’s race, whether the person was armed and the circumstances that led to the fatal encounter. The result is an unprecedented examination of these shootings, many of which began as minor incidents and suddenly escalated into violence.
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Supreme Court throws out Facebook threat conviction

The Supreme Court ruled today in favor of a Pennsylvania man who posted several violent messages on Facebook and was convicted under a federal threat statute -- the first time the Court raised the implications of free speech on social media, reported CNN.
I wrote about this case last December.

The Court said that it wasn't enough to convict the man based solely on the idea that a reasonable person would regard his communications as a threat.

"Our holding makes clear that negligence is not sufficient to support a conviction," wrote Chief Justice John Roberts.

The Court held that the legal standard used to convict him was too low, but left open what the standard should be. It is a narrow ruling and the Court did not address the larger constitutional issue.

The case concerns a Pennsylvania man, Anthony D. Elonis, who posted several violent messages on his social media account after his wife left him. He claimed he was an artist who turned to rap lyrics for therapeutic purposes to help him cope with depression.

"There¹s one way to love you but a thousand ways to kill you," he wrote in one post.

"Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined," he wrote in another.

He was convicted for violating a federal threat statute.

He said that a statute that limits speech "without regard to the speaker¹s intended meaning" runs the risk of punishing protected First Amendment expression simply because it is "crudely or zealously expressed."

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The future of DNA testing: No analyst, just a computer

As justice races to keep pace with technology, new questions about how evidence is obtained are coming into play, reports McClatchy Newspapers.
Trace DNA – tiny amounts of genetic material – is saddled with complications, creating confusion in and out of courtrooms and prompting a new realization: Forensic science can’t always lead to clear-cut results.
These samples, known as low template or low copy number DNA, often degrade in quality once they’re replicated for testing. Mixed sample DNA presents similar problems because it contains genetic material from two or more people, and each must be isolated before being matched.
Then there’s touch DNA, the sort of infinitesimal residue that’s left on the trigger of a gun, for example, or a ballpoint pen. It may be as small as three human cells. This DNA can be replicated and tested, but a conclusive match can be tough to find.
Frederick Rench, a defense attorney based in Clifton Park, N.Y., spent 18 months learning the ins and outs of DNA testing and its complications while defending a client.
“That’s just how complex this stuff is,” he said.
How and when to use this evidence is controversial.
“This is something we are trying to figure out ourselves,” said Paul Cates, communications director for the Innocence Project, a nonprofit legal group that relies on DNA evidence to exonerate wrongfully convicted people. “We realize that there’s a lot of discussion about (low template number DNA) in the scientific community and we are doing our own research to figure out where we are on this.”
More easily tested is a single strand of hair, a mouth swab or blood from a single source. They are the sorts of high template number DNA samples that are often the stuff of popular courtroom dramas. Reliable, definitive results are routinely expected; there’s plenty to test and normally only one set of DNA. And the testing procedures are pretty standard.
“Any qualified lab analyst could follow these procedures and give results that wouldn’t be challenged,” said Brian Meehan, a professor of forensic biology at Ohio Northern University and the director of forensics at IntelliGENTETICS, a DNA testing lab.
It’s the low template and mixed sample DNA evidence that has prompted debate in courtrooms from New York to Indiana, as defense attorneys and prosecutors quarrel over evidence admissibility, generating appeals and overturned convictions.
While not totally bulletproof, the computerized DNA testing is gaining acceptance. The repercussions could be significant. How, one might ask, can a defense attorney cross-examine a software system?
Rench said it’s a marked difference, and he’s wrestling with it himself. He only hopes that better evidence will lead to more justice.
“And who can argue with that?” he said.
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