Monday, November 30, 2015

Ohio prosecutors seek fewer death sentences

Prosecutors across Ohio are changing the way they charge suspected killers, according to the Cleveland Plain Dealer. They are indicting far fewer with the death penalty and pushing more sentences of life in prison without parole.
The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year.
During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.
The Ohio numbers mirror a national the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.
The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families.
As the death penalty in Ohio sits stalled in a moratorium over the drugs used in executions, the emerging trends of how prosecutors handle aggravated murder cases offer insight into the way justice is meted out in Ohio courtrooms.
To read more CLICK HERE

Saturday, November 28, 2015

National politics and a softer approach to crime and punishment

In a stunning turn of events national candidates are talking about crime and punishment on the campaign trail and its not the "tough-on-crime" rhetoric of past elections.  Starting with Barry Goldwater in 1964 right through President Obama in 2008, candidates for president wanted to "lock 'em up" and, that's right, throw away the key. But, not anymore.
This year, according to the Associated Press, for candidates from both parties the idea of locking up drug criminals for life is a lot less popular than it was a generation ago.
The 2016 presidential race has accelerated an evolution away from the traditional tough-on-crime candidate. A Republican Party that's long taken a law-and-order stance finds itself desperate to improve its standing among minority voters and Democratic candidates are also being drawn into national conversations on policing, drug crimes and prison costs.
With criminal justice issues intruding into election season, the "Just Say No" message of the Reagan administration and the "three strikes" sentencing law developed a decade later under President Bill Clinton have given way to concerns over bloated prison costs, the racial inequities of harsh drug punishments and how police interact with their communities.
But even among those in both parties who support changing the criminal justice system, there's no consensus on how to do it and candidates are scrambling to differentiate themselves on what law and order means.
"You don't have everyone saying they're tough on crime," said Inimai Chettiar of the Brennan Center for Justice in New York, which advocates reducing prison populations. "Instead, you have people offering different policy solutions."
To read more CLICK HERE

Friday, November 27, 2015

Bill to hide the identity of police involved in shootings faces growing opposition in Pennsylvania

Opposition is growing to a fast-tracked bill that would hide the identity of police officers involved in shootings in Pennsylvania, reported CBS. Philadelphia’s top cop is among those speaking out.
The FOP-backed House Bill 1538, passed the house with bipartisan support last week. If the bill becomes law in Pennsylvania, it would keep private the identity of officers involved in shootings while an investigation into an incident is ongoing. Once the investigation is complete, it would allow the release of the officer’s name, if he or she is charged with a crime, as long as there is no threat against the officer. In other words, there could be cases where the public will never ever learn the name of an officer involved in a shooting.
“I’m against it, I think it’s a huge mistake,” Philadelphia Police Commissioner Charles Ramsey told KYW Newsradio.
Earlier this year, Ramsey implemented a directive within the department that allows police officer names to be released within 72 hours of a police involved shooting. The Fraternal Order of Police claims the policy endangers the lives of officers and their families. FOP President John McNesby did not respond to multiple requests for comment on Monday, but previous statements were available on the Republican Caucus website.
To read more CLICK HERE

Thursday, November 26, 2015

Wednesday, November 25, 2015

Adjusting minority IQ scores, affirmative action for the death penalty

Cornell University Law Professor Sherry F. Colb takes a skeptical look at adjusting IQ scores for purposes of execution.  Below are some excerpts from the article  posted at Verdict.
The Supreme Court in Atkins v. Virginia determined that executing an intellectually disabled person is unconstitutional, in part because of the disproportionality between the ultimate punishment and the necessarily diminished culpability of an intellectually disabled defendant. In the years following Atkins, the Court had occasion, in Hall v. Florida, to flesh out the meaning of intellectual disability and to clarify that it includes more than a simple IQ score. Nonetheless, IQ scores remain an important component of intellectual disability assessment, both clinically and for Atkins purposes.
An excellent article by Robert Sanger calls attention to a particular sort of challenge to IQ scores that has developed in the Atkins context. This challenge or critique provides that African Americans, Latinos, and Latinas are disserved by IQ tests, as life experiences of deprivation, for instance, produce artificially low scores on such tests, relative to the test-takers’ true ability. In some contexts, this critique could help minorities applying for jobs and educational opportunities. Here, however, the proposal is to give minority defendants a “bump up” on their IQ scores so that they qualify to be executed.
The first thing wrong with racially adjusting minority IQ scores upward for execution purposes is that it constitutes blatant and invidious race discrimination against minority individuals. It basically says that a person with an IQ test score of X will live if he is white but (potentially) die if he is black. And this result is not simply a matter of observed disparate impact but of intentional practice in the courtroom.
To read more CLICK HERE

Tuesday, November 24, 2015

Chicago braces for release of deadly police shooting video

For months, leaders in Chicago watched as other cities faced angry demonstrations over police conduct, shootings and relations with black people, often captured in painful videos. As cities like Ferguson, Mo., Baltimore and New York have been consumed by fatal encounters involving the local police that have fueled national attention since 2014, this city managed to keep a lower profile, reported the New York Times.
But Chicago now finds itself grappling with the prospect of having its own moment. The city has been ordered to release, within days, a police video of the fatal shooting of a black 17-year-old by a white police officer. Even the officer’s lawyer has described the video, which the city sought for months to block from public view, as “graphic” and “violent” and “difficult to watch at some points.”
With the memories of discord in other cities so fresh, leaders in Chicago, which has a history of tension over race and policing, have been holding urgent private talks with community activists. Law enforcement officials are trying to anticipate what response the video may bring, and how best to prepare police forces here for that. And the mayor, Rahm Emanuel, appeared to try to calm the city, taking the unusual steps of condemning the police officer and urging prosecutors to take action in the case before the release of the video.
“In accordance with the judge’s ruling, the city will release the video by Nov. 25, which we hope will provide prosecutors time to expeditiously bring their investigation to a conclusion so Chicago can begin to heal,” Mr. Emanuel said Thursday.
Around Chicago, the video has become a topic of discussion, even though most people have not seen it. According to a few people who have viewed it, the video shows Laquan McDonald being struck by 16 bullets, some of them hitting him even after his body had fallen to the ground along a street on this city’s southwest side in October 2014. Some of the bullets, an autopsy shows, entered the back of his body.
A lawyer for Mr. McDonald’s family said the video showed him moving away from Officer Jason Van Dyke, the policeman who fired all of the shots, while at least five other officers never fired their weapons.
Dan Herbert, a lawyer for Officer Van Dyke, said his client believed the shooting was justified because he feared for the safety of himself and his colleagues. Mr. McDonald had a knife, the authorities say, and earlier punctured a squad car’s tire with it and refused to drop it. The officers were approaching him, officials said, after the police got a report that a man with a knife was trying to break into vehicles in a trucking yard.
To read more CLICK HERE

Monday, November 23, 2015

Pro-death penalty movement gaining traction

The emergence of Californians for Death Penalty Savings and Reform is the most visible sign of a growing nationwide response to the success of efforts to abolish the death penalty, reported the Marshall Project. For decades, executions were carried out steadily, and supporters, always a majority, were a silent one. But since 2007, seven states have repealed the death penalty and in many others the pace of executions has slowed as prison agencies struggle to find lethal injection drugs and prosecutors decline to pursue death sentences. A group of defense attorneys want to bring a constitutional challenge to the Supreme Court, and even Republican presidential candidate Jeb Bush has voiced ambivalence.
Like many of these movements, the California initiative grew organically in response to efforts to abolish the death penalty. The victims’ advocates and prosecutors now leading the charge began working together in 2012 when opponents of the death penalty brought Proposition 34 — a straightforward abolition proposal — to voters. Those opponents included men and women with tough-on-crime credibility, from Jeanne Woodford, the former warden of San Quentin prison, to Ron Briggs and Don Heller, both political figures who championed an expansion of capital punishment in the 1970s.
To read more CLICK HERE

Sunday, November 22, 2015

Watch my interview on WFMJ-TV Weekend Today

Watch my interview on WFMJ-TV Weekend Today.  We spoke about the Jacob Larosa case in Niles, Ohio and the Attorney General Kathleen Kane odyssey in Pennsylvania. To watch CLICK HERE

Judge Kozinski on fringerprint analysis

Ninth Circuit Court of Appeals Judge Alex Kozinski — has recently published an article in the Georgetown Law Journal providing 12 reasons we should worry about the criminal justice system. His former law clerk and blogger Eugene Volokh has serialized the article for the Washington Post.  Periodically, this is the second in a series of Judge Kozinski's concerns with the criminal justice system, through the analysis of Mr. Volokh.

I have shared similar concerns through this blog.  I will provide links to my commentary as well.
Fingerprint evidence is foolproof. Not so. Identifying prints that are taken by police using fingerprinting equipment and proper technique may be a relatively simple process, but latent prints left in the field are often smudged and incomplete, and the identification process becomes more art than science. When tested by rigorous scientific methods, fingerprint examiners turn out to have a significant error rate. [Footnote: “[F]orensic fingerprint identification almost never deals in whole fingerprints. Rather, technicians use ‘latent’ fingerprints — invisible impressions that they ‘develop’ using a powder or a chemical developing agent. Latent prints are usually fragmentary, blurred, overlapping, and otherwise distorted. The challenge is to match the latent print to a pristine inked (or, these days, optically scanned) print taken under ideal conditions at the police station.” [Citations omitted.] In United States v. Llera Piaza, 188 F. Supp. 2d 549, 564 (E.D. Pa. 2002), for example, Judge Louis Pollack rejected fingerprint identification expert testimony after concluding that the field of fingerprint identification has failed to systematically test its underlying assumptions and claims of expertise.]

Perhaps the best-known example of such an error occurred in 2004 when the FBI announced that a latent print found on a plastic bag near a Madrid terrorist bombing was “a 100 percent match” to Oregon attorney Brandon Mayfield. The FBI eventually conceded error when Spanish investigators linked the print to someone else.

Here is a link to my take on fingerprint analysis in a blog at the Pittsburgh Post-Gazzette

Saturday, November 21, 2015

GateHouse: Is the end near for capital punishment?

Matthew T. Mangino
GateHouse Media
November 20, 2015
A dissent written more than a half-century ago in Rudolph v. Alabama may have been a precursor to striking down the death penalty.
Supreme Court Justice Arthur Goldberg raised questions about the constitutionality of the death penalty in 1963. Goldberg wrote that “in light of the trend both in this country and throughout the world against punishing rape by death, does the imposition of the death penalty by those States which retain it for rape violate evolving standards of decency that mark the progress of a maturing society.”
Goldberg’s dissent is credited with being the first step in bringing about the 1972 decision in Furman v. Georgia that ruled the death penalty, as it was imposed at the time, was unconstitutional. It wasn’t long after Furman, that death penalty states rewrote their laws to pass constitutional muster.
This summer, Justice Stephen G. Breyer wrote a dissent in a case out of Oklahoma challenging lethal injection. He expressed his disagreement with the Court’s decision and then, according to the Washington Post, asked a more general question: Is the death penalty itself unconstitutional?
“I believe it highly likely that the death penalty violates the Eighth Amendment,” Breyer wrote. “At the very least, the Court should call for full briefing on the basic question.”
Breyer was joined in his dissent by Justice Ruth Bader Ginsburg. He wrote that the country’s use of the death penalty has dramatically changed since the court reinstated capital punishment in 1976.
The current state of the death penalty indicates that Breyer might be on the right track. This week marked the last two executions for 2015. On Thursday, Marcus Ray Johnson was executed for the 1994 murder of a woman in Georgia.
With no additional executions scheduled nationwide, 2015 will end with 27 executions--the fewest since 1991.
The death penalty has been under siege for several years. A number of states—Connecticut, Illinois, Maryland, New Jersey, New Mexico, New York, and Nebraska—have recently abandoned capital punishment. The governors of four other states—Colorado, Oregon, Pennsylvania, and Washington—have imposed execution moratoriums.
Although Justices Breyer may get some credit for getting the ball rolling if the death penalty is abolished, it won’t happen without Justice Anthony Kennedy. He would undoubtedly be the fifth vote to strike down the death penalty.
According to Slate, Kennedy has a strong belief in the idea that constitutional norms change as the times change--each generation is charged with deciding for itself how to define basic constitutional freedoms. Kennedy’s beliefs have contributed to the idea that he is ready sign-on to a decision abolishing the death penalty.
Kennedy voted with the Court’s majority in banning the execution of the intellectually disabled and those who kill while under the age of 18.
In 2008, Kennedy wrote the majority opinion keeping Louisiana from imposing the death penalty for the rape of a child where the crime did not result in the victim’s death.
Kennedy wrote, “There is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape.” Kennedy concluded that in cases of crimes against individuals, “the death penalty should not be expanded to instances where the victim’s life was not taken.”
Kennedy tends to be a bit cautious. He seems to prefer to nibble around the edges of the death penalty as opposed to putting it on the chopping block. If the matter came before the high court anytime soon, chances are that Kennedy would not be prepared to kill-off the death penalty.

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 and follow him on Twitter @MatthewTMangino.

Visit the column CLICK HERE

Friday, November 20, 2015

Georgia executes convicted killer, may be the last execution of 2015

The 27th Execution of 2015

Marcus Ray Johnson convicted of killing a woman he met at a Georgia nightclub was put to death on November 19, 2015.
Johnson was declared dead at 10:11 p.m. at the state prison in Jackson, Georgia Department of Corrections officials said. Johnson was convicted in the March 1994 rape and murder of Angela Sizemore in Albany, according to the Associated Press.
Johnson declined to make a final statement or have a prayer said for him. The warden left the execution chamber at 9:44 p.m. Records from previous executions show the lethal drug generally starts flowing within minutes after the warden's exit.
Brian Kammer, an attorney for Johnson, had argued his client shouldn't be executed because doubts remained about his guilt. Prosecutors said there was no doubt Johnson killed Sizemore.
In a statement released after the execution was over, Kammer said it "deepens the moral stain on the State of Georgia." The application of the death penalty is characterized by arbitrary, inaccurate and morally bankrupt judgments, he said.
"Georgia should be erring on the side of caution, not rushing its citizens pell mell to the execution chamber," Kammer said.
Ken Hodges, who was Dougherty County district attorney during Johnson's trial, sat next to Sizemore's daughter, Katie Barker, as the two witnessed Johnson's execution.
"Of all the death penalty cases I had, what happened to the victim in this case was the most vile and reprehensible of any," he said. "He was the most deserving of the death penalty."
To read more CLICK HERE


Thursday, November 19, 2015

Texas executes man who killed three children

The 26th Execution of 2015
Raphael Holiday was put to death by lethal injection in Huntsville, Texas and pronounced dead at 8:30 p.m., on November 18, 2015.
He became the 531st inmate executed by Texas since the U.S. Supreme Court reinstated the death penalty in 1976, the most of any state, reported Reuters.
"Yes, I would like to thank all of my supporters and loved ones," he was quoted by prison officials as saying in his last statement.
"I love you, Love y’all, always going to be with y’all. Thank you Warden," he said.
Holiday was convicted of killing Tierra Lynch, 7; Jasmine DuPaul, 5; and Justice Holiday, 1, in a rural community about 100 miles (160 km) northwest of Houston.
He had been living with Tami Wilkerson, his common law wife at the time, until she secured a restraining order against him for sexually assaulting Tierra, according to the Texas attorney general's office.
About six months later, Holiday, who had attempted to reconcile with Wilkerson, returned to the house and forced the girls' grandmother at gunpoint to douse the home with gasoline, which ignited, it said. The grandmother survived.
After watching the blaze, he fled the scene in a vehicle and was caught after a high-speed chase with police. The bodies of the three girls were later found huddled together in the charred remains of the home, the office said.
The U.S. Supreme Court denied a request filed by a new lawyer for Holiday, who argued his federally appointed counsel had acted against his wishes and abandoned further rounds of court filings to spare his life.
Those lawyers told their client further appeals were hopeless and they did not want to provide false hopes, court papers showed.
The Supreme Court in June denied a request from Holiday's federally appointed lawyers to put a hold on the execution on grounds that included problems with his trial.
To read more CLICK HERE

Wednesday, November 18, 2015

U.S. records 1,000th police involved fatality in 2015

A man recently shot by police in Oakland, CA became the 1,000th entry in The Counted, an ongoing investigation by the Guardian to record every fatality caused by police and other law enforcement officers in 2015.
The Oakland incident was the 883rd fatal shooting by a law enforcement officer so far in 2015, according to the Guardian’s records. Another 47 people died after being shocked with an officer’s Taser, 33 died after being struck by a law enforcement officer’s vehicle, and 36 were killed in custody. Another received a deadly blow to the head during a fight with an officer.
The shooting was also the 183rd death recorded in California, by far the greatest total of any state. Nine states, however, have recorded more deaths per capita, with Oklahoma having the highest rate.

To read more CLICK HERE

Tuesday, November 17, 2015

Oregon sentences serial killer to death for 4th time, with little chance of execution

A jury this week sentenced Dayton Leroy Rogers, one of Oregon's most prolific serial killers, to death for the fourth time, an ultimately symbolic decision in a state that has not executed anyone in nearly 20 years, reported the Associated Press.
Dayton Leroy Rogers, 62, who killed eight women in the 1980s, had previously been sentenced to death three times for his crimes, and each time the penalty was overturned on legal grounds. The jury's new verdict comes despite a moratorium on executions imposed by the past two governors.
Rogers apologized in court Friday. He told jurors the word "sorry" was inadequate, but he was sorry for taking "eight precious lives."
Prosecutors said Rogers, a former lawn-mower repairman, drove to Portland to solicit prostitutes, plied them with alcohol and took them to remote locations where he tied them up and tortured them. He was dubbed the Molalla Forest Killer because the bodies were discovered in a forest in the small town of Molalla.
The state Supreme Court struck down Rogers' death sentences in 1992, 2000 and 2012. The first time was to comply with a U.S. Supreme Court ruling that invalidated Oregon's death penalty law.
To read more CLICK HERE

Monday, November 16, 2015

GateHouse: Prosecutorial authority: To plea or not to plea

Matthew T. Mangino
GateHouse Media
November 14, 2015
Prosecutors are the most powerful figures in the criminal justice system. The proliferation of criminal statutes along with sentence enhancements and mandatory minimum sentencing, which have recently been called into question, have constricted the discretion and authority of judges and expanded the power of prosecutors.
The shift in power is no more evident than in the transition from a trial dominated system to a system dependent on the negotiated plea. In 2011, the New York Times provided a host of statistics that underscored this shift. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases—35 years ago the ratio was about one in twelve.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
Contributing to the decline in trials, is the growing number of incidents in which prosecutors have engaged in misconduct that seriously undermines the fairness of criminal trials, according to Judge Alex Kozinski of the Ninth Circuit Court of Appeals. “The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.”
“We now have an incredible concentration of power in the hands of prosecutors,” Richard E. Myers II, a former assistant U.S. attorney and a professor at the University of North Carolina told the New York Times. He reported that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
This is not to suggest that all of that power is necessarily in the wrong hands. The vast majority of prosecutors are ethical and fair and no other individual in the criminal justice system is better positioned to understand the nuances of a case than a prosecutor. The prosecutor has interviewed witnesses and thoroughly examined evidence. No figure in the justice system is in a better position to evaluate a case and decide what is fair.
However, with fewer and fewer trials the U.S. Supreme Court has recognized the crucial role of plea bargaining in two decisions handed down in 2012. What is interesting about the two decisions is that, on the one hand, the court acknowledged, “[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.”
Yet, according to Justice Anthony M. Kennedy, “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.”
Trial has become so complicated and time consuming that the criminal justice system would grind to a halt if every case went to trial. The plea bargain process provides a benefit to the defendant in the form of a more lenient sentence in exchange for a plea and prevents the collapse of an overburdened system.
Yet, the absence of trial lends itself, at times, to a rush to judgement without testing the state’s ability to prove essential facts beyond a reasonable doubt.
Judge Kozinski wrote, “A legal environment that tolerates sharp prosecutorial practices” can tempt ambitious prosecutors to step over the line. Those practices can only be challenged by competent legal representation at trial and during the plea negotiation process.
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 and follow him on Twitter at @MatthewTMangino.
To visit the column CLICK HERE

Sunday, November 15, 2015

Florida executed man who stabbed to death daughter, ex-wife, mother-in-law and aunt

The 25th Execution of 2015
Thirty years after he stabbed and killed his five-year-old daughter, his ex-wife and her mother and sister in Florida, Jerry Correll himself was dead as the result of lethal injection, reported the Tampa Bay Times.
The October 29, 2015 execution occurred after the U.S. Supreme Court rejected without comment Correll's request for a stay at 6:40 p.m., 40 minutes after the execution was scheduled.
Justices Stephen Breyer and Sonia Sotomayor dissented, saying Correll's execution should be delayed while the court decides whether Florida's capital punishment system is constitutional. At issue: In Florida, it takes only a majority of the jury - not a unanimous one as in most states - to recommend a death penalty. Even then, the judge has a final say.
Breyer also said keeping a prisoner on death row for 30 years constitutes cruel and unusual punishment.
Correll is the first person to be executed since January in the small, white death chamber. His death was put off in February by the Florida Supreme Court while federal justices considered a case that could rule the state's lethal injections unconstitutional.
That case surrounded midazolam, a highly controversial drug used in lethal injections in just a few states, including Florida. Its purpose is to sedate the inmate, although in some cases it has not worked properly, causing major complications in an otherwise straightforward process.
On Thursday, nothing appeared to go awry.
Correll's execution is also the 22nd to take place in the death chamber at Florida State Prison since Gov. Rick Scott took office in 2011, more than any other governor since the death penalty was reinstated in Florida in 1976. Jeb Bush ordered 21 in his eight years in office and Charlie Crist ordered just five.
"It's his solemn duty to uphold the law and his foremost concern is always for the victims and their families," said Jackie Schutz, Scott's spokeswoman.
Family members of the victims — Susan Correll, Marybeth Jones, Mary Lou Hines and Tuesday Correll — were present, as were Correll's lawyers and a member of clergy.
"The consequences of (Correll's) actions should be no less than death itself," the family of the victims said in a written statement after the execution. "It has taken a long time for his punishment to be fulfilled, but we have chosen to use that time to heal and move forward."
The family of death row inmates aren't allowed to witness executions. Correll spoke with his daughter on the phone Thursday morning, however, and she and other family members visited him last week, Department of Corrections spokesman McKinley Lewis said.
On Thursday, Correll had a two-hour meeting with Deacon Jason Roy, a Catholic chaplain who serves death row inmates. Around 10 a.m., he ate his last meal: a cheeseburger, french fries and a Coke.
"His general demeanor has been calm and in good spirits today," Lewis said.

Judge Kozinski: Eyewitness identification

Ninth Circuit Court of Appeals Judge Alex Kozinski — has recently published an article in the Georgetown Law Journal providing 12 reasons we should worry about the criminal justice system. His former law clerk and blogger Eugene Volokh has serialized the article for the Washington Post.  Periodically, I will share Judge Kozinski's concerns with the criminal justice system, through the analysis of Mr. Volokh.

I have shared similar concerns through this blog.  I will provide links to my commentary as well.

1. Eyewitnesses are highly reliable. This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event — which pretty much covers all situations where identity is in dispute at trial. In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

Here is my take in 2011 in the Pennsylvania Law Weekly

Saturday, November 14, 2015

At least 300 veterans on death row nationwide

Approximately 300 veterans are on death row today, and many others have already been executed, suggests a report by the Death Penalty Information Center.
Perhaps even more surprising, when many of these veterans faced death penalty trials, their service and related illnesses were barely touched on as their lives were being weighed by judges and juries.
Defense attorneys failed to investigate this critical area of mitigation; prosecutors dismissed, or even belittled, their claims of mental trauma from the war; judges discounted such evidence on appeal; and governors passed on their opportunity to bestow the country's mercy. In older cases, some of that dismissiveness might be attributed to ignorance about PTSD and related problems. But many of those death sentences still stand today when the country knows better.
To read more CLICK HERE

Thursday, November 12, 2015

Americans more afraid of gun violence than terrorism

When it comes to danger, voters are far more afraid of gun violence than terrorism.
But like almost everything else this election season, there’s a partisan split, a new McClatchy-Marist poll finds.
Overall, 63 percent of registered votes say they’re more worried that they or someone they know will be a victim of gun violence, while 29 percent more fear that they or a friend will fall prey to a terrorist attack.
Democrats and independents lean heavily toward gun violence as the bigger threat, a sentiment reflected in the party’s push for stricter gun laws in the wake of mass shootings this year in Charleston, S.C., Rosenburg, Ore., and Lafayette, La.
Democrats fear guns over terrorism by 77-15 percent. Independents fear gun violence over terrorism by 64-28 percent.
Republicans edge toward terrorism as the bigger threat, but only narrowly, by 50-45 percent over a fear of gun violence.
To read more CLICK HERE

Read more here:

Wednesday, November 11, 2015

U.S. Supreme rules officer immune from suit in shooting death

The Supreme Court made it harder Monday to sue police for using deadly force against fleeing suspects, ruling that officers are immune from lawsuits unless it is “beyond debate” that a shooting was unjustified and clearly unreasonable, reported the Los Angeles Times.
By an 8-1 vote, the justices tossed out an excessive force suit against a Texas police officer who ignored his supervisor’s warning and took a high-powered rifle to a highway overpass to shoot at an approaching car. The officer said he hoped to stop the car but instead shot and killed the driver.
The ruling bolsters previous decisions that give police the benefit of the doubt when they encounter a potentially dangerous situation. The court noted in an unsigned 12-page opinion that it has “never found the use of deadly force in connection with a dangerous car chase to violate the 4th Amendment.”
In dissent, Justice Sonia Sotomayor faulted the majority for “sanctioning a ‘shoot first, think later’ approach to policing.”
The court's decision comes at a time of growing concern over police shootings, including the killing last week of a 6-year-old Louisiana boy who was in the back seat of his father's car.
The two officers in that case have been arrested on suspicion of murder.
In cases where officers are not prosecuted, families sometimes sue in federal court and allege a violation of the 4th Amendment’s ban on unreasonable searches and seizures. Monday’s decision could affect many such cases, including a pending appeal from Los Angeles involving the police shooting of a suspected gang member.
To read more CLICK HERE

Tuesday, November 10, 2015

Kane declares senate committe hearing not legal

Attorney General Kathleen Kane has taken the position the Senate Committee considering her removal is not legal, and has refused to answer questions it submitted to her in an Oct. 29 letter from its chairman, Sen. John Gordner, R-Columbia, reported The Morning Call.
Her refusal caused the Senate to issue a subpoena to compel answers, but staff loyal to Kane last week refused to accept the legal document. The Senate had to go to Kane's legal defense lawyer for help with the subpoena process.
Gordner's letter sought copies of all documents outlining how the office is operating following Kane's suspension, as well as communication Kane has sent to the staff since her law license suspension.
The committee is to submit by Nov. 25 a report to the full Senate on whether Kane is fit to remain in office. The report will include preliminary findings, as well as an outline of procedures the committee would follow if it elects to move to a second phase.
That phase would determine if "there is sufficient evidence that warrants notice and a hearing" to remove Kane, using Article 6, Section 7 of the Pennsylvania Constitution. The section is known as "Senate address," or "direct address." The Senate has not used the mechanism since the 1800s.
Aside from Gordner, the committee is comprised of Scarnati and Sens. Lisa Baker, R-Luzerne, Gene Yaw, R-Lycoming; Art Haywood, D-Montgomery; Judy Schwank, D-Berks; and Sean Wiley, D-Erie.
Under state law, the attorney general's office has multiple county jurisdiction to handle criminal and civil cases. The attorney general's office also can step in and handle a case at the request of a county prosecutor who believes he or she has a conflict of interest, does not have the resources to prosecute or other reasons.
To read more CLICK HERE

Monday, November 9, 2015

Without an execution in nine years--California seeks to change execution protocol

California seeks to allow corrections officials to choose one of four types of barbiturates to execute prisoners on death row depending on what's available, as states deal with a nationwide shortage of execution drugs, reported NBC New York.
The single drug would replace the series of three drugs that were last used when Clarence Ray Allen was executed in 2006, strapped to a gurney in what once was the gas chamber at San Quentin State Prison.
Eight states already have used a single anesthetic drug for executions, and five others have announced plans to switch to the method, according to the nonprofit Death Penalty Information Center.
Publication of the proposed California regulations triggers a 62-day public comment period capped by a public hearing on Jan. 22. Even inmates, including the 747 awaiting execution on death row, can comment. There were more than 29,400 written comments the last time the department tried to adopt such regulations.
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Sunday, November 8, 2015

DEA doublespeak: Is marijuana a threat or not?

According to The Marshall Project, DEA Chief Chuck Rosenberg, a former prosecutor, called the claim that smoking marijuana has medicinal value (a notion embraced to some degree by 40 states) “a joke.” One day later, his DEA released an annual report suggesting that marijuana use is, literally, the last thing local police officials are worried about when it comes to drugs.
"What really bothers me is the notion that marijuana is also medicinal -- because it's not," Rosenberg said in a briefing to reporters. "We can have an intellectually honest debate about whether we should legalize something that is bad and dangerous, but don't call it medicine -- that is a joke," according to CBS News.
An increasing number of police officers around the United States are now saying that fighting marijuana is their lowest drug-related priority, according to a survey released earlier this week that formed part of the 2015 National Drug Threat Assessment Summary, the Washington Post reported.
The U.S. Drug Enforcement Administration assessment asked a representative sample of 1,000 police officers around the country about what they saw as their biggest drug threats. All in all, in 2015, marijuana was the top choice of just 6% of officers and was dwarfed in significance by heroin (38%) and methamphetamine (33%). Prescription painkillers staked a middle spot with 15%, while cocaine edged out weed with 7%, according to News.Mic.

To visit The Marshall Project CLICK HERE

Saturday, November 7, 2015

GateHouse: High Court probes bias in jury selection

Matthew T. Mangino
GateHouse Media
November 6, 2015

In Georgia, as in most states, prosecutors and defense attorneys in capital cases can strike jurors during jury selection for just about any reason. A potential juror is chewing gum ... she’s out. A potential juror is a school teacher … gone. A potential juror is sleeping during the colloquy … out of here.
The process of striking a juror for any reason is referred to as a peremptory challenge. An unlimited number of potential jurors can be eliminated for cause — things like knowing the defendant or being related to the prosecutor.
There is one reason for which a trial attorney cannot use a peremptory challenge — race.
This week, the U.S. Supreme Court heard arguments in Foster v. Chatman, which questions if race was used to discriminate against potential jurors in a Georgia murder trial.
Timothy Foster was 18 years old when he was arrested for the murder of Queen Madge White, a 79-year-old widow and former elementary school teacher. Foster is African-American while the victim was white. According to prosecutors, “Foster broke into White’s home. He broke her jaw, coated her face with talcum powder, sexually molested her with a salad dressing bottle, and strangled her to death, all before taking items from her home.”
Turned in by his girlfriend, Foster admitted to the crime. But there were questions about his limited intellectual capacity and whether he had an accomplice.
When the case went to trial all of the black members of the jury pool were removed. Foster’s trial came only a year after the Court’s landmark decision in Batson v. Kentucky. Batson was intended to eliminate racial bias in jury selection.
The 1986 ruling set up a three-step process for testing complaints about race-based use of peremptory strikes.
First, the accused has to show membership in a specific racial group.
Second, prosecutors need to offer nonracial reasons for removing the juror.
Third, the judge must decide whether, taking everything into consideration, the defense proved a racial bias.
“The decision today will not end the racial discrimination that peremptories inject into the jury-selection process,” Justice Thurgood Marshall wrote in Batson. “That goal can be accomplished only by eliminating peremptory challenges entirely.”
During jury selection in Foster’s case, one black juror was dismissed for cause, and prosecutors eliminated the other four with peremptory challenges, offering a variety of nonracial reasons accepted by the presiding judge.
Foster was convicted and sentenced to death. Georgia appellate courts upheld the conviction and sentence.
In 2006, nearly 20 years after his conviction, Foster’s lawyers obtained the prosecution team’s jury selection notes under the Georgia Open Records Act.
The name of each potential black juror was highlighted on four different copies of the jury list and the word “black” was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as “B#1,” “B#2,” and “B#3.”
According to the Miami Herald, an investigator working for the prosecutors also ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors.”
In Foster, the Court has been asked to consider whether information outside of the three-step Batson inquiry can help answer questions about whether the African-Americans were intentionally kept from the jury because of their race.
The Foster argument featured no discussion of limiting, or eliminating, peremptory challenges as Justice Marshall suggested in Batson and Justice Stephen G. Breyer reiterated in 2005. Unlikely as it may seem, perhaps the time has come to eliminate peremptory challenges and put to rest any issue of racial bias in jury selection.
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 and follow him on Twitter at @MatthewTMangino.
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Thursday, November 5, 2015

What? PA House passes broad mandatory sentences for nonviolent drug offenders

An unlikely issue is finding consensus among liberals and conservatives, progressives and the tea party.
After decades of experimentation, mandatory minimum sentencing laws have failed in every respect.  For this reason, leaders of all political persuasions are moving public policy in this country away from mandatory minimums.
Unfortunately, some in the Pennsylvania House of Representatives are not keeping up with the times, wrote Pat Nolan the Director of the American Conservative Union Foundation's Center for Criminal Justice Reform and Julie Stewart the president of Families Against Mandatory Minimums in a op-ed at PennLive.
Just one week after an organization of 130 major city police chiefs, sheriffs, state and federal prosecutors, and state attorneys general called on federal and state lawmakers to repeal mandatory minimum sentences for nonviolent drug offenses, the Pennsylvania House rushed headlong in the opposite direction.
Without the benefit of a single hearing or the solicitation of any expert testimony, the House approved broad mandatory sentences for nonviolent drug offenders.
Had the House asked for any input, here's who they would have heard from: Americans for Tax Reform, ACLU, Koch Industries and Charles Koch Institute, NAACP, FreedomWorks, and our organizations.
To read more CLICK HERE

Wednesday, November 4, 2015

Nebraska seeks execution drugs without a death penalty law

Nebraska has hired Ben England, who also has been hired by other states, to help it import drugs for use in executions, according to BuzzFeed. Nebraska received a warning from the Food and Drug Administration that their attempt to purchase sodium thiopental from overseas suppliers violated federal law regarding the importation of drugs.
However, Nebraska doesn't have the death penalty. In May, Nebraska became the first conservative state in more than 40 years to abolish the death penalty, with lawmakers defying their Republican governor, Pete Ricketts, a staunch supporter of capital punishment who had lobbied vigorously against banning it, reported the New York Times.
Then a referendum to repeal a law that abolished the death penalty in Nebraska passed with enough approved signatures that it will now be on the ballot during the 2016 general election, according to the Omaha World-Herald.
The records in Nebraska, some of which are marked confidential and “attorney-client privileged,” show Nebraska’s Department of Corrections paid attorney Ben England $399 to register sodium thiopental with the FDA that a man named Chris Harris and his company, Harris Pharma, claims to be able to manufacture. But prior reports from BuzzFeed News call into question information listed on the registration.
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Tuesday, November 3, 2015

A significant majority of Americans think crime is on the rise

Seven in 10 Americans say there is more crime in the U.S. now than there was a year ago, according to Gallup. This figure is up slightly from the 63% who said so in 2014. Meanwhile, 18% say there is less crime, and 8% say the level of crime has stayed the same.
Since Gallup first began asking Americans in 1989 about their perceptions of crime, majorities generally have said crime had worsened compared with the previous year -- with more than 80% holding this view in the late 1980s and early '90s. Perceptions of greater crime fell over the course of the next decade as actual crime rates dropped, and reached a record low of 41% in 2001 after 9/11. By 2002, though, this figure was back to a majority, and ranged from 53% to 74% in the decade that followed.
Government data on actual crime rates in 2015 will not be released until next year, so it is not possible to know whether Americans' perceptions of rising crime this year reflect what is currently happening in the U.S. In many large cities across the country, violent crime rates have spiked in 2015, suggesting that national crime figures could be on the rise. News reports of this increased violence may account for the uptick in perceived violence in the latest poll.
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Monday, November 2, 2015

Utah Court refuses to delay execution by firing squad

A federal judge in Utah denied an appeal by 74-year-old death row inmate Ron Lafferty to place a hold on his federal case to challenge his execution by firing squad, reported JURIST. Lafferty is one of the longest-serving prisoners on death row in Utah and is scheduled to be executed by firing squad. Lafferty's counsel argued he was not legally competent when he chose to be executed by firing squad 30 years earlier, and this execution method violates his constitutional right against cruel and unusual punishment under the Eighth Amendment . The judge held that the Supreme Court is yet to declare a state's chosen method of execution cruel and unusual. In March 2015, Utah Governor signed a bill [JURIST report] to restore the firing squad as a method of execution. Utah is the only state in the US that allows for death by firing squad if lethal injection drugs are not available. Friday's ruling still allows Lafferty to pursue his case in Utah state court.
Use of the death penalty has been a controversial issue throughout the US in 2015. In a JURIST op-ed, guest columnist John D. Bessler discusses new changes in the evolution of capital punishment.


Sunday, November 1, 2015

Alcohol plays role in gun violence

Alcohol use plays a primary role in gun violence, wrote Deni Carise of the University of Pennsylvania Medical School in the Philadelphia Inquirer.
A startling 48 percent of homicide offenders were reportedly under the influence of alcohol at the time of the offense, and 37 percent were intoxicated, according to an analysis by University of North Carolina researchers who reviewed more than 23 independent studies examining 8,265 homicide offenders in nine countries.
In the United States, guns are the leading cause of homicide and suicide.
"Both acute alcohol intoxication and chronic alcohol misuse are strongly associated with risk for committing firearm violence, whether that violence is directed at others or at oneself," said Garen J. Wintemute, founding director of the Violence Prevention Research Program at the University of California, Davis. He added that of the nearly 400,000 firearm-related U.S. deaths in 12 years, "it is probable that more than a third of these deaths involve alcohol."

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