Monday, February 29, 2016

During WW II 'Keep Calm and Carry On' apparently also applied to criminals

During WW II, Britain's selfless volunteers pulled together to defend the UK from the threat of Nazi invasion. But not everyone was necessarily in it together. Despite the Blitz spirit of World War II, crime rose from 303,771 offences in 1939 to 478,000 in 1945. Why?

According to the BBC, during the early part of the war, British cities suffered repeated bombing raids that devastated large areas. This was the source of the famous Blitz spirit - the British people's determination to maintain the war effort. But while many pulled together, others used the raids as an opportunity for crime.

Bombed and abandoned buildings were a treasure trove for looters. After a raid on Dover, one man returned home to find his entire house stripped. Even the carpets and pipes had been taken by opportunistic thieves.

Others even looted while air raids were taking place. At the height of the air raid on Coventry in November 1940 two men were caught ransacking a wine seller's.

"I cannot think of conduct more detestable than that, during the most dreadful air raid which has ever taken place, you should be found looting," the judge told them as he jailed them for six and seven years respectively.

In Kensington, west London, a gardener was caught removing rings from four dead bodies in January 1941 while on one day in November 1940, 20 of the 56 cases at the Old Bailey were looters. Ten of these were auxiliary firemen.

To read more CLICK HERE

Saturday, February 27, 2016

GateHouse: Apple invokes privacy in battle with FBI

Matthew T. Mangino
GateHouse Media
February 26, 2016
This week when Apple fired back at the FBI over the controversial order of court requiring Apple to hack into its own cellphone security features, the company said, the All Writs Act “does not give the district court a roving commission” to conscript and commandeer Apple in this manner.
If you have never heard of the All Writs Act don’t feel bad, it was written 227 years ago, about the time the U.S. Constitution was written. Strange that a law written when George Washington was around, and doctors were treating illness with leeches, would have an impact on sophisticated cellphone encryption technology.
How did this order of court spark what called “some of the most passionate debates about technology policy ever?”
The FBI got a search warrant to search the cellphone of one of the dead San Bernadino terrorists.  The phone was built by Apple with a security measure that would delete all data if the wrong passcode was typed in multiple times.
A federal judge ordered Apple to write a program to load onto the phone, so that the FBI could keep guessing new codes electronically, forcing entry without causing the device to delete all the phone’s data.
While the FBI is interested in this particular phone, the agency has lamented ”going dark” the trend that the agency is losing the practical capacity to execute search warrants involving digital communications thanks to a variety of technological changes including, but not limited to, encryption which the provider cannot decrypt unilaterally, wrote Robert Chesney at Lawfare.
How does the All Writs Act figure into this matter? The law provides that a federal court “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
What does that mean?
The theory behind the All Writs Act is that when a federal court has jurisdiction over a matter, the court has the power to issue additional orders of court to assist the court in adjudicating the matter properly.
What does this mean for the Apple case? The Court felt that the government had probable cause to search the phone for evidence in their investigation of terrorism and approved the FBI’s search warrant.
The government was frustrated in efforts to carry out the court order to search the phone. As a result, the Court issued a second order requiring Apple to defeat its security measure which would permit the FBI to access the phone’s data.
The U.S. Supreme Court had cemented the All Writs Act in modern jurisprudence with a decision in 1977 ordering New York Telephone to assist law enforcement with access to technology to investigate gambling.
Orrin Kerr made an interesting historical point in a recent Washington Post column. The All Writs Act was enacted the same week that Congress proposed the Fourth Amendment. The Judiciary Act of 1789, which included the All Writs Act, was signed into law by President Washington on Sept. 24, 1789. The next day, on Sept. 25, Congress passed the Bill of Rights that included the Fourth Amendment.
Which brings us to another issue--Apple supporters have framed the FBI’s actions as “a fundamental threat to our Fourth Amendment rights.”
That assertion is simply not true. The FBI’s actions comply with the Fourth Amendment for two reasons. First, the government got a search warrant based on probable cause. The order for Apple to assist the FBI is based on that valid search warrant.
Second, the government has the consent of the phone’s owner. The phone is owned by the San Bernardino County Department of Public Health, the terrorist’s employer. Consent negates any Fourth Amendment concerns.
What this case is really about is privacy and that is always a contention issue, and by all accounts a long way from being resolved.

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.

To visit the column CLICK HERE

Friday, February 26, 2016

Problems continue for Pennsylvania Supreme Court, this time the U.S. Supreme Court is involved

Never mind that a sitting justice of the Pennsylvania Supreme Court will go on trial for allegedly unethical behavior, the Court's former Chief Justice Ronald Castille will have controversial case he prosecuted as district attorney of Philadelphia and then ruled on as a Supreme Court Justice reviewed by the U.S. Supreme Court.
Castille voted to reverse a lower court decision that gave relief to a criminal defendant whom the lower court concluded was the victim of prosecutorial misconduct. The Chief Justice even wrote separately to make clear just how wrong he thought the lower court decision was, wrote Brianne J. Gorod, chief counsel of the Constitution Accountability Center on the American Constitution Society website. 
Next week, the U.S. Supreme Court will be hearing oral argument in Williams v. Pennsylvania, in which the Court has been asked to decide whether the Pennsylvania Chief Justice’s decision to participate in that case was lawful. In a Term with a huge number of blockbuster cases (not to mention a new Supreme Court vacancy), Williams hasn’t been getting a great deal of attention. But it should. It’s a case that will test the Supreme Court’s commitment to the fundamental principle, recognized by James Madison at the nation’s founding, that “[n]o man is allowed to be a judge in his own cause.” And it’s a case that will determine whether the American people can feel confident that they will get what the Supreme Court has said the Constitution’s Due Process Clause requires: “[a] fair trial in a fair tribunal.”
Gorod writes, the issue Castille was asked to decide in this case is whether the trial prosecutor in Williams’s case—that is, an attorney on Castille’s staff and for whose conduct Castille was ultimately responsible—suppressed evidence in violation of the law, as the lower court found. An affirmance of the lower court’s order would necessarily impugn the integrity and reputation of the office Castille led and thus his own reputation, as well. It is no insult to Castille to say that “‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’” For a judge with that level of personal interest in a case to participate in deliberations, potentially influence his colleagues’ votes, and then vote on the case himself, creates not only the appearance of unfairness, but also the probability of it, both of which the Due Process Clause prohibits. As the Supreme Court has said, “to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’”
To read more CLICK HERE

Thursday, February 25, 2016

Law enforcement officers, prosecutors, corrections officials share concerns about death penalty

Current and former law enforcement officers, prosecutors, and corrections officials from around the country have come together to share their concerns about the administration of the death penalty in America and to help policymakers explore alternatives to it, according to a press release from The Constitution Project.

"Law enforcement officers, prosecutors and corrections officials are some of the people most familiar with the way the death penalty is carried out, yet our voices are not often heard in the discussions about it.  Problems with capital punishment are increasingly on the public's mind, and we want to make sure our unique perspective is heard and considered," said Mark Earley, one of the co-chairs of Public Safety Officials on the Death Penalty

Earley oversaw 36 executions while serving as Attorney General for the Commonwealth of Virginia from 1998 to 2001.  He was president of Prison Fellowship, a prominent national organization dedicated to ministering to prison inmates and their families, from 2002 to 2011.

While each member of the group has their own concerns about the death penalty, most are apprehensive about the prospect of executing an innocent person.

"We have seen firsthand that the criminal justice system, like every other human endeavor, can make mistakes.  Executing even one innocent person is one too many," said Kathleen Dennehy, another of the group's co-chairs.  "And, as career public safety officials and professionals, we know that when the innocent are wrongfully convicted and executed, the guilty go free," she added.

She pointed to a report released earlier in the month by the National Registry of Exonerations showing that a record 149 people were exonerated in the United States in 2015 -- including five from death row.

To read more CLICK HERE

Wednesday, February 24, 2016

Supreme Court takes on exclusionary rule on first day without Justice Scalia

In Utah v. Strieff the Supreme Court is tasked with determining whether the exclusionary rule applies to an unlawful stop that leads to a warrant check and search incident to arrest. In 2006 Salt Lake City police received a tip for suspicious drug activity occurring at a house, according Jurist.
The police went to the house and saw Edward Strieff leaving the house to go to a convenience store. Upon leaving the house, officers stopped Strieff and asked for identification. Upon running Shrieff's information, the police found an outstanding warrant for Strieff's arrest and arrested him outside the house. The officer then conducted a search incident to arrest and found methamphetamine and drug paraphernalia on Strieff's person.
The Utah Supreme Court ruled that the drug evidence could not be used against Strieff because the initial police stop was illegal. That is, it was not supported by reasonable, individual suspicion against Strieff — regardless of the pre-existing warrant.
Evidence the police discover as a result of violating the Fourth Amendment is considered “fruit of the poisonous tree” and is suppressed under what is known as the exclusionary rule. This is a sensible way to deter the police from breaking the law to get evidence they want. But the court has created several exceptions to this rule, such as in cases where the evidence discovered was a result of a search that was based on a clerical error.
According to the New York Times, during the argument before the Supreme Court, lawyers for Utah argued that the officer’s stop of Strieff was a reasonable, good-faith mistake and that suppressing the evidence would harm society far more than it would deter other officers from making similar mistakes.
But as Justice Sonia Sotomayor pointed out during oral argument, this approach would give far too much latitude to law enforcement: “What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?”
Justice Elena Kagan added that the threat of this behavior is especially serious in lower-income communities where a majority of residents have outstanding warrants for minor infractions. “If you’re policing a community where there is some significant percentage of people who have arrest warrants out on them, it really does increase your incentive to make that stop,” she said.
To read more CLICK HERE

Tuesday, February 23, 2016

Six counties in Southern California had 2,000 police shootings in 12 years

There have been more than 2,000 police shootings in Southern California since 2004, according to the Los Angeles Times.  The newspaper examined District Attorney files, coroner’s reports and court records.

The six Southern California counties examined include — Los Angeles, Orange, San Diego, Riverside, San Bernardino, Imperial — where there has been a police shooting roughly every other day since 2004, records show.

Most of those shootings were justifiable under the law, involving armed suspects who opened fire on police, suspects who refused to drop weapons during confrontations and people — often mentally ill or on drugs — who attacked officers. Only one police officer was arrest in that time and he was found not guilty at trial.

To read more CLICK HERE

Monday, February 22, 2016

Pope calls on Catholic leaders to stop executions this year

Pope Francis yesterday called on Catholic leaders worldwide to show “exemplary” courage by not allowing executions this year, while expressing hope that eventually the death penalty will be abolished everywhere, reported the Boston Herald.
Francis told tourists and pilgrims in St. Peter’s Square that “the commandment ‘do not kill’ holds absolute value and applies to both the innocent and the guilty.”
He added that there is “an ever-more widespread opposition in public opinion to the death penalty, even only as an instrument of legitimate social defense.”
“I appeal to the conscience of those who govern so that international consensus is reached for the abolishment of the death penalty,” the pope said. “And I propose to all those among them who are Catholic to make a courageous and exemplary gesture: May no execution sentence be carried out in this Holy Year of mercy.”
To read more CLICK HERE

Sunday, February 21, 2016

Watch my interview on Weekend Today WFMJ-TV

My interview on Weekend Today WFMJ-TV discussing social media and law enforcement and the FBI/Apple iphone controversy. To watch the interview CLICK HERE

PA senator seeks to remove life in prison sentence from felony murder

Pennsylvania State Senator Daylin Leach is working on legislation that would remove the felony murder rule from Pennsylvania’s definition of second degree murder.
People convicted of second degree murder in Pennsylvania face a mandatory life sentence.
“The focus is on eliminating the idea of strict liability for murder when committing another felony, regardless of your role in that murder,” Leach told LancasterOnline.
In a press release announcing his proposal, the Democratic lawmaker said people should be punished for crimes “they commit or intend to commit in a way commensurate with the crimes.”
He said the felony murder statute violates that principle because people receive life sentences even though they did not kill or intend to kill anyone. 
In June 2015, the Pennsylvania Superior Court denied a Maryland man’s appeal of a life sentence he received in 1990 on two counts of second-degree murder in the deaths of Horace and Mary Swarr more than a decade earlier.
George Burkhardt was convicted of conspiring with three other men to tie up and rob the Swarrs in their Lancaster city home in 1979.
According to newspaper records, the Swarrs were bound and gagged during the robbery and were not discovered until a week later. They died of starvation and dehydration.   
Two of the other men convicted in the robbery also were sentenced to life. The fourth man cooperated with police and served a lesser sentence.
To read more CLICK HERE

Saturday, February 20, 2016

Federal compassionate release of ailing inmates 'a failure'

     The compassionate release system for federal prisons is "broken," a series of witnesses told the U.S. Sentencing Commission during a recent public hearing, according to Capitol News Service.
     But while the panels of witnesses generally agreed the program is in need of a fix, they proposed starkly different solutions and laid the blame at the feet of a number of different organizations and agencies.
     The compassionate release program is meant to release elderly inmates, those with terminal illnesses and others who meet certain conditions, though as the witnesses at Wednesday's hearing said, the program does not necessarily cover all of the inmates in federal prison it is meant to.
     The public hearing was meant to evaluate a proposed set of changes to the compassionate release program, including lowering the age at which an inmate can be considered for release, reducing the amount of their prison term they must serve before qualifying for release, and adding more circumstances that would allow an inmate to go free early.
     The current program allows the director of the Bureau of Prisons (BOP) to motion for the early release of inmates deemed not a danger to their communities who are least 70 years old and have served at least 30 years of their sentence, or those who have "extraordinary and compelling reasons."
     Under the current rule "extraordinary and compelling reasons" are limited to debilitating or terminal physical or mental illnesses or a death in the inmate's family that would leave a minor without care.
     The proposed amendment to the program expands these circumstances further and would allow the BOP director to motion for the release of a prisoner who is 65 or older and has served at least 10 years or 75 percent of their sentence, regardless of their medical condition.

To read more CLICK HERE

Friday, February 19, 2016

AG Kane survives removal attempt, faces impeachment and criminal trial...oh, and decides not to seek reelection

Pennsylvania Attorney General Kathleen Kane has survived a removal attempt by the state Senate, but the House has opened an investigation that could lead to her impeachment, reported Kane is also awaiting trial in August for perjury and other counts for allegedly leaking confidential investigative information and lying about it under oath and, surprise, she has decided not to seek reelection. 
House members voted overwhelmingly to begin the probe, tasking a subcommittee to determine whether Kane could be impeached based on any "misbehavior in office."
House Democratic Minority Leader Frank Dermody led the 1993 probe into the late Supreme Court justice Rolf Larsen, the last Pennsylvania official to be impeached.
"The impeachment process, you know, it doesn't have to be a crime," said Dermody. "The constitutional standard is misbehavior in office. And it's up to the legislature to determine what that is, what that means. It's a political trial."
Some lawmakers openly speculated that the Senate vote on Kane's removal might have tainted any impeachment proceeding against her. An impeachment vote in the House would result in a trial before the Senate.
"They are potential jurors," said Dermody. But he doubts that the removal effort leaves any whiff of bias on senators because their inquiry was so narrow.
"It might not have poisoned the whole well," said Dermody. "The reason they were going to consider removal was because of her law license."
The Senate's removal effort was focused on whether Kane could fulfill her duties with a suspended law license. The state Supreme Court ordered the suspension in October and upheld the ruling last week.

To read more CLICK HERE

Thursday, February 18, 2016

Garrett: Scalia on the death penalty

Brandon Garrett the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law wrote on about the late U.S. Supreme Court Justice Antonin Scalia's record on criminal law and of particular interest Scalia's position on the death penalty. Here is what Professor Garrett wrote:

In death penalty cases, unable or unwilling to perceive such a bright line argument against cruel and unusual punishments, except perhaps if medieval forms of torture were involved, Justice Scalia stood firm as the most vociferous supporter imaginable of the death penalty—even for the innocent—famously calling the specter of wrongful executions "embarrassing" but of no consequence to the U.S. Supreme Court.
In objecting to granting relief to Troy Davis, he asked what the lower courts would possibly do in the case, absent some clear recognized claim of innocence. He was right: the lower courts later denied relief, and Davis was executed.  It is hard to imagine that any successor to Justice Scalia will be quite as aggressively and outright politically pro-death penalty.
Indeed, Justice Scalia himself began to think that time might no longer be on his side, as more Justices have moved away from the death penalty (as has the country).
Last summer, in Glossip v. Gross, responding to a detailed empirically-supported opinion from Justice Steven Breyer, Justice Scalia characteristically responded with vitriol to the suggestion that there might be a constitutional problem with the modern death penalty.  He called  it more of the same product of "abolitionist studies" (although one of those cited was a book of mine, which include a study Justice Scalia had himself cited in one of his Confrontation Clause rulings).
Justice Scalia called the death penalty debate repetitive, like the movie "Groundhog Day."  He was right, though, that there will be "the same risk of wrongful convictions" without the American death penalty, "if horrendous death–penalty cases were converted into equally horrendous life–without–parole cases."
That is the problem we now face with declining death sentences and rising life-without- parole sentences in this country.  Justice Scalia’s comment begs the question, of course, of why we do not have better constitutional protections for adequate counsel and ability to claim innocence in life cases (or death cases).
The reason for that "horrendous" state of affairs includes decades of votes by Justice Scalia.
On jury trial rights, Justice Scalia emphasized the defense right to confront "testimonial" witnesses, with important results in a series of cases over the past decade that involved forensic science, from drug tests to modern DNA tests.
Crime labs had often simply introduced a one-page certificate of analysis reporting the result of a forensic test.  Justice Scalia's interventions meant that the defense now typically has the right to cross-examine that analyst on the stand. It is an important right, although it may not do much to improve reliability of forensics in the lab, particularly where so few cases go to trial.

To read more CLICK HERE

Wednesday, February 17, 2016

Texas executes killer of two, on death row 24 years

The 6th Execution of 2016
Gustavo Julian Garcia was executed in Texas on February 16, 2016. He was 43. Garcia spent 24 years on death row, according to the Texas Tribune.
Garcia was sentenced to death in 1992 after confessing to the murders of two clerks during separate robberies, according to court documents. 
At 6:10 p.m., witnesses shuffled from the clear, warm night into the death house, where Garcia was already strapped to a gurney. He was asked if he had any last words.
“Yes, sir,” he replied. “To my family, to my mom, I love you. God bless you, stay strong.”
A lethal dose of pentobarbital began streaming into the IV already inserted into his tattooed arm. Garcia, in prison whites and black-rimmed glasses, looked straight at the ceiling with a calm expression on his face. A minute later, he yawned and his eyelids drooped. At 6:26 p.m., he was pronounced dead.
It was the third execution in Texas this year, and the sixth in the United States.
In December 1990, Garcia, 18 at the time, and 15-year-old Christopher Vargas entered a liquor store with a sawed-off shotgun, according to court documents. They stole money and beer, and Garcia shot the clerk, Craig Turski, in the stomach and head.
The two weren’t arrested until a month later, when they were caught at a Texaco where another clerk, 18-year-old Gregory Martin, had been shot and killed. Garcia confessed to the murders, and he was sentenced to death for Turski’s death in January 1992, according to court documents. He was never tried in Martin’s case.
Martin’s sister, brother-in-law and friend attended Garcia’s execution. No one related to Turski was there. Garcia’s spiritual advisor, Father Clifton Labbe, stood at the front of the viewing area and stared at Garcia’s face.
Garcia’s long stretch on death row wasn’t uneventful. More than six years into his sentence, on Thanksgiving night 1998, Garcia took part in an escape attempt that ended with the death of another death row inmate, Martin Gurule, according to the Dallas Morning News.
The inmates crept under a fence, climbed a roof and sprinted across the prison yard, the Morning News reported. Garcia and five other inmates surrendered on the lawn after guards began shooting at them, but Gurule managed to get over the outer fence. He was found dead a week later, apparently drowned in a nearby creek.
About two years later, then-Texas Attorney General John Cornyn discovered that psychologist Walter Quijano, who testified at Garcia’s original sentencing trial, had claimed in testimony that Hispanics were more likely to pose a future danger to society, according to court documents. Quijano said he came to that belief because Hispanics were overrepresented in the prison population.
Garcia and several other inmates whose death sentences had been influenced by Quijano's improper testimony were granted new sentencing trials, but Garcia was again sentenced to death in 2001, according to the attorney general’s office.
To read more CLICK HERE

Tuesday, February 16, 2016

AG ask court to reargue Penn State administrators' successful appeal

Two weeks after the state Superior Court tossed numerous charges against three ex-Penn State administrators facing prosecution over their handling of sex-abuse allegations, the Office of Attorney General filed a request to have the case reargued before an en banc panel of the frontline appeals court, reported The Legal Intelligencer.

Questions had lingered about whether the office would seek reargument given that the Superior Court's three-judge panel was unanimous and the opinion blasted some of the prosecutor's conduct. But according to some attorneys, the loss of the conspiracy and contempt charges was a significant blow to the prosecution, and, while the three still face child-endangerment-related charges, those might be more difficult cases to make.
Matthew Mangino, defense attorney and former Lawrence County district attorney, said that, while the Lynn decision indicates that child endangerment statutes could be applied to supervisors even if the conduct occurred before the 2007 change, the Lynn case might be distinguishable from the cases against the former Penn State administrators.
"Lynn was responsible for looking into sex offenders in the clergy. That really wasn't the role of" Spanier, Curley or Schultz, Mangino said. "But it still looks like the statute could apply."
Even if the statutes can be applied to the ex-administrators, Mangino said prosecutors still have an uphill battle in proving exactly what the defendants knew and when they knew it.
"This Lynn decision doesn't make the prosecution of these three defendants a slam dunk," Mangino said.
Attorneys said it is difficult to know whether the Office of Attorney General's decision to appeal was based solely on the belief that the Superior Court made an error, or whether the appeal was based on the mentality of fighting every loss in an effort to preserve the strongest charges.
Cohen said the institutional judgment of many prosecutors is to "move forward and do what you can to prosecute every case that you bring," but he said the appeal will likely be "fruitless" and the office should stop and "take a look at where they are at this point."
However, according to Mangino, the office's decision to appeal the Superior Court's decision should only hinge on its belief that the three-judge panel erred in its ruling, and should not be based on the potential viability of any of the remaining claims.
"Just because there's a recent decision from the appellate court that bolsters the charges you have remaining, even if you think those charges are viable, that's not going to have much of an impact," Mangino said.
To read more CLICK HERE

Monday, February 15, 2016

GateHouse: Scalia's death will impact law and politics

Matthew T. Mangino
GateHouse Media
February 15, 2016

U.S. Supreme Court Justice Antonin Scalia, the leading conservative on the court, has died at the age of 79.
Scalia’s body was barely on its way home from the west Texas ranch where he died in his sleep of an apparent heart attack when speculation began to swirl about his replacement and who would make the appointment.
Scalia’s death leaves the court split with four conservatives and four liberals. The vacancy will bring into focus the importance of the 2016 presidential election.
The first question, should President Barack Obama fill the vacancy in an election year? Obama said the evening of Scalia’s death that he plans to nominate a replacement. Will he get that nominee confirmed? Senate Majority Leader Mitch McConnell said the nomination should wait until the next president comes into office.
The battle lines have been drawn, and for good reason. The next justice could tilt the balance of power on the world’s most influential court.
Regardless of the nominee, there is little chance that next member of the Supreme Court will be as bombastic, and in your face as Scalia. He never shied away from calling out his colleagues or turning a phrase that could send a shiver down the spines of lawyers and laymen alike.
In the area of criminal law he accepted the fact that the justice system is not perfect, and innocent people will be convicted. “Like other human institutions, courts and juries are not perfect,” he wrote in a 2006. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly.”
In a 2009 dissent of a high profile death penalty case, Scalia wrote, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Scalia was right, but the statement was profoundly callous and cold.
Scalia’s absence from the court will have an immediate impact. On immigration, a Texas federal judge put an unprecedented nationwide hold on President Obama’s executive order that would temporarily enable about five million undocumented immigrants to remain in the county.
A deadlocked Supreme Court would let the Texas order stand.
On abortion, also a case out of Texas, the loss of Scalia means the chance the Supreme Court would uphold the Texas law outright is unlikely. However, a split 4-4 will uphold the Texas law and states within the Fifth Circuit — Louisiana, Texas and Mississippi — will gain broad discretion to restrict abortion until the matter once again reaches the Court.
On the other hand, Scalia’s death may be a gift for labor unions. It appeared that the Court was likely to rule in favor of a California effort to defund public sector unions. With only four votes, a tie would affirm the decision of the lower court which was a victory for organized labor.
If the United States Senate refuses to take action on an Obama nominee there would be an unprecedented void on the court. The delay in the confirmation process could take more than a year. In the modern era, the longest Supreme Court vacancy was 363 days after Justice Abe Fortas resigned in 1969.
In the last century, there have only been a handful of justices approved during an election year. The last nominee to be confirmed in an election year was Justice Anthony Kennedy in 1988. Kennedy was approved after an epic battle that resulted in the Senate rejecting President Ronald Reagan’s first nominee, conservative Robert Bork.
The loss of Scalia on the court, and choosing his replacement, may have more impact on the 2016 election than any other issue. Senator Ted Cruz, a Republican candidate for president, said on NBC’s Meet the Press, “We ought to make the 2016 election a referendum on the Supreme Court.”

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.

To visit the column CLICK HERE

Obama's short list of possible Supreme Court replacements for the late Justice Scalia

Here are a look at some of the leading possibilities to be Obama's third nominee to the U.S. Supreme Court, according to Politico:

Sri Srinivasan
D.C. Circuit Judge Sri Srinivasan is perhaps the most attractive potential Supreme Court nominee for Obama if the goal is to put pressure on McConnell to allow a Senate confirmation vote. Nominated by Obama in June 2012, Srinivasan was confirmed in May 2013 by a unanimous, 97-0 vote.
Democrats believe that unambiguous verdict on Srinivasan could make it awkward for McConnell to block a vote on his nomination.
A nomination of Srinivasan, 48, to the high court would make history: he was born in India and would be the first Indian-American Supreme Court justice.
Srinivasan is widely viewed as a moderate. He clerked for Republican-appointed Justice Sandra Day O’Connor. In a speech last October, Srinivasan seemed to relish maintaining stability in the law. He suggested that fears he and three other Obama appointees would dramatically change the balance in the D.C. Circuit were overwrought.

Paul Watford
Watford is an Obama appointee on the 9th Circuit and has been repeatedly mentioned as a potential Obama Supreme Court nominee. He was confirmed in 2012, by a 61-34 vote.
Watford, who’s in his late 40s, spent a decade as a federal prosecutor in Los Angeles. Regarded as a moderate appointee, he was also a clerk to influential 9th Circuit Judge Alex Kozinski and Supreme Court Justice Ruth Bader Ginsburg. His list of judicial rulings is still fairly short, which can be an advantage in confirmation battles. Watford is African-American.

Patricia Ann Millett
Millett, 52, sits on the D.C. Circuit and is part of a slate of three nominees Obama put forward for that court in 2013. Those nominations triggered Republican threats of a filibuster and led Democrats to deploy the so-called nuclear option, changing Senate rules to prevent filibusters on judicial nominees below the Supreme Court level.
After considerable parliamentary maneuvering, Millett was confirmed by a 56-38 vote in
Millett spent more than a decade as a Supreme Court litigator in the Solicitor General’s office at the Justice Department. She later chaired Akin Gump’s Supreme Court practice along with Tom Goldstein, founder of SCOTUSBlog, and sometimes contributed to that site.

Merrick Garland
Garland is a politically savvy Clinton appointee on the D.C. Circuit who has long been discussed as a potential Supreme Court nominee. He’s well respected by lawyers and lawmakers in both parties.
However, Garland’s now 63, making him a decade older than a typical Supreme Court nominee in the modern era.

Loretta Lynch
Loretta Lynch, 56, has served as Obama’s attorney general for less than a year, after her nomination got caught up in partisan wrangling in the Senate. Senators on both sides agreed that the disputes had little to do with her and she doesn’t seem to have engendered the same anger from the GOP that her predecessor, Eric Holder, produced.
Lynch did stints as the top federal prosecutor in the Brooklyn-based Eastern District of New York during the Clinton administration and under Obama. Nominating her could complicate her efforts to run the Justice Department since all her decisions as attorney general could be seen as opportunities to either advance or set back her nomination. She would also make history as the first African-American woman nominated to the Supreme Court.

To read more CLICK HERE

Sunday, February 14, 2016

The Vindicator: Landmark Miranda case celebrates its half-century anniversary

Matthew T. Mangino
The Youngstown Vindicator
February 14, 2016

Fifty years ago this month, U.S. Supreme Court Justice Potter Stewart asked Atty. John J. Flynn, representing Ernesto Miranda before the court, what rights an accused should be advised of while in custody. Flynn replied, “[H]e had a right not to incriminate himself, that he had the right not to make any statement, that he had a right to be free from further questioning ... to be represented adequately by counsel in court, that if he was too indigent and poor to employ counsel, that the state would furnish him counsel.”
So was born Miranda v. Arizona, the landmark Supreme Court decision that has become a part of American culture. Miranda’s conversion from legal holding to cultural icon is due mainly to the nation’s insatiable appetite for television crime dramas. Everyone with a TV has heard Miranda warnings.
What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested on a robbery charge. While in the midst of an interrogation by police, he confessed raping an 18-year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to prison. Miranda appealed, and his case made its way to the U.S. Supreme Court.
The Supreme Court ruled in favor of Miranda and excluded his confession. Chief Justice Earl Warren wrote the court’s opinion finding a confession would be barred under the Fifth and Sixth Amendments unless a suspect had been made aware of his rights and the suspect had waived them. Warren made it clear, “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”
Far from pristine
As we mark the 50th anniversary of Miranda, it is important to note that the decision has remained far from pristine over the years. Nor was the ruling placed on a pedestal beyond the reach an activist courts – quite the contrary – the U.S. Supreme Court has continually tested, and at times, expanded and restricted, the decision.
For instance, in 1981 the Edwards rule was established. The court held once an accused invoked his right to have counsel present during custodial interrogation a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.
That changed in 2010. In a case out of Maryland, the court established a bright-line rule finding if at least 14 days passed from the time the suspect invoked his rights under Miranda, the police could again initiate an interrogation of the suspect.
Although the Miranda warnings are etched in nearly everyone’s consciousness, the Supreme Court found that police do not have to use those magical words to get the point across. In a 2010 case out of Florida, the court said as long as the rights are articulated to a suspect in a reasonable manner and the rights are understood, they are sufficient.
Justice Ruth Bader Ginsburg wrote, “The four warnings Miranda requires are invariable, but this court has not dictated the words in which the essential information must be conveyed.”
Then in 2011, the Supreme Court decided a North Carolina case establishing that law enforcement must consider a suspect’s juvenile status when carrying out the requirements of Miranda. “It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave ... we hold that a child’s age properly informs the Miranda custody analysis,” wrote Justice Sonia Sotomayor.
Although Miranda has been revered for half a century, its evolution may continue for years to come.

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)

To visit the column CLICK HERE

Saturday, February 13, 2016

U.S. Supreme Court Justice Antonin Scalia dead at age 79

U.S. Supreme Court Justice Antonin Scalia, who served on the nation's highest court since 1986, died on Saturday at the age of 79.

The justice passed away due to natural causes at the Cibolo Creek Ranch, a luxury resort in West Texas, federal authorities told the San Antonio Express-News. According to the paper, Scalia attended a function on Friday and was found after failing to appear for breakfast the next morning.

GateHouse: The politics of fear doom criminal justice reform

Matthew T. Mangino
GateHouse Media
February 12, 2016
When a group of six senators led by Republican Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, announced a rare bipartisan criminal justice bill last October there was much fanfare on Capitol Hill.
The Sentencing Reform and Corrections Act of 2015 would have reduced penalties for repeat drug offenders and eliminated the “three strikes” mandatory life sentence. Grassley called it “the biggest criminal justice reform in a generation,” and both parties were on board. However, calls to crack open the champagne in celebration of bipartisan criminal justice reform was a bit premature.
When Senator Bernie Sanders (I-Vt.) won the New Hampshire primary he mentioned criminal justice reform in his victory speech. He isn’t a johnny-come-lately to the issue. On his campaign website he touts his recent introduction of the Justice is Not for Sale Act of 2015, which would ban all private prisons and bring back parole on a federal level to “reduce the proliferation of mass incarceration.” He also wants to eliminate mandatory minimum sentencing. Sanders is not out of step with the mainstream on these issues. According to the The Sentencing Project, at least 12 states authorized new sentencing laws or modified policy practices to address prison population growth. Connecticut reduced criminal penalties for certain drug offenses; and Oklahoma’s governor directed parole officials to establish a sentence reduction policy for offenders sentenced to certain mandatory penalties.
Evan the ultra-conservative Koch brothers support criminal justice reform, going so far as to collaborate with left-leaning organizations to push for change.
In President Barack Obama’s final budget to Congress, he asked for $500 million to help states make broad criminal justice reforms.
The new “21st Century Justice Initiative” was announced as part of a $29 billion budget request for the U.S. Department of Justice. According to The Crime Report, the new program has three objectives: reduce crime, reverse policies that cause “unnecessarily long sentences and unnecessary incarceration” and build community trust in the justice system.
Why is opposition to reform percolating among national, state and local candidates? Although violent crime rates are at near record lows, a Gallup poll released last fall found that nearly six in 10 Americans — 59 percent — say crime in the United States is an “extremely” or “very” serious problem.
The politics of fear is helping push reform aside. Without public support for change reform is doomed especially in the midst of an election year.
With the presidential race in full throttle, priorities, and positions, have changed. GOP Presidential Candidate Senator Ted Cruz (R-TX) has argued on the campaign trail that the bipartisan senate legislation would increase the crime rate and allow offenders out of jail who are likely to commit additional crimes.
Although Cruz supported the Smarter Sentencing Act — a prior version of the Sentencing Reform and Corrections Act — he came out against the new bill. Cruz’s GOP colleagues in the senate have not only quashed reform, some are looking to add new barriers to reform efforts already in place.
Senator Tom Cotton (R-Ark.) introduced a partisan bill this week, backed by Senator David Perdue (R-Ga.), Senator Jeff Sessions (R-Ala.) and Senator Orrin Hatch (R-Utah) that would require the administration to disclose recidivism rates for federal inmates released early because of reduced sentences.
The four senators also called the Sentencing Reform and Corrections Act “dangerous for America.”
In fact, Cotton wrote in a recent op-ed, “This in nothing short of a massive social experiment in criminal leniency. And this experiment threatens to undo the historic drops in crime we have seen over the past generation.”
And so, as Sen. John Cornyn (R-TX) made clear this week, Congress will not be passing a major criminal justice reform bill while President Obama is office.

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.

To visit the column CLICK HERE

Friday, February 12, 2016

Conflict arises among federal circuit courts regarding remote video surveillance

A federal appeals court is upholding the firearms conviction of a Tennessee man whose brother's rural farm was monitored for 10 weeks straight by a remote-controlled camera the authorities installed on a utility pole 200 yards away—without a warrant, according to the website Ars The decision is in conflict with other Circuits.
The decision by the 6th US Circuit Court of Appeals affirms the nine-year sentence of Rocky Houston, who was caught by the camera as being a felon in possession of a gun. 
"There is no Fourth Amendment violation, because Houston had no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads," Judge John Rogers wrote for the unanimous court, which ruled 3-0 to uphold Houston's 2014 conviction. 
"The ATF agents only observed what Houston made public to any person traveling on the roads surrounding the farm. Additionally, the length of the surveillance did not render the use of the pole camera unconstitutional, because the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations. While the ATF agents could have stationed agents round-the-clock to observe Houston’s farm in person, the fact that they instead used a camera to conduct the surveillance does not make the surveillance unconstitutional."
The Cincinnati, Ohio-based appellate court added:
"Moreover, if law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand. The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely."
The decision conflicts sharply with a Washington state federal judge who in 2014 tossed an alleged drug dealer's conviction that was gained under the same circumstances, the warrantless spying of a suspect via a webcam attached to a utility pole near his property. In May, the government dropped its appeal of that decision, without providing any reason.
To read more CLICK HERE

Thursday, February 11, 2016

The Sentencing Project: The State of Sentencing 2015

The Sentencing Project has issued a new report on the state of criminal justice reform across the country.  The report, The State of Sentencing 2015, was written by Nicole D. Porter, Director of Advocacy Sentencing.  The findings include:

New Sentencing Laws: At least 12 states authorized new sentencing laws or modified policy practices to address prison population growth. Nebraska lawmakers abolished the death penalty; Connecticut reduced criminal penalties for certain drug offenses; and Oklahoma’s governor directed parole officials to establish a sentence reduction policy for persons sentenced to certain mandatory penalties.  
Mandatory sentencing reform: Maryland, Oklahoma and North Dakota authorized sentencing judges to depart from mandatory minimums in certain circumstances. These reforms generally allow a departure from statutory mandatory minimums based on the nature of the crime, mitigating circumstances, defendant’s character, and the defendant’s chances of successful rehabilitation.
Probation and parole: Lawmakers in at least six states – Arkansas, Connecticut, Georgia, Montana, Texas, and Utah – modified policies relating to community supervision. Included among the law changes is statutory guidance designed to reduce returns to prison for technical probation and parole violators.

Collateral consequences: Officials in at least 14 states authorized changes in policy and practice to the collateral impacts of a conviction. Notably, officials in California restored voting rights to 60,000 people on probation supervision and Kentucky reinstated voting rights to an estimated 100,000 citizens. Also, Alabama lawmakers eliminated the federal lifetime ban on food and cash assistance for persons with felony drug convictions, while Texas officials modified the ban on food assistance. Other reforms included authorizing fair chance hiring policies – “Ban the Box” -- for persons with criminal records in at least five states. offenses; and Oklahoma’s governor directed parole officials to establish a sentence reduction policy for persons sentenced to certain mandatory penalties.
To read the full report CLICK HERE 

Wednesday, February 10, 2016

Trump:“Every single" drug dealer released by Obama will return to selling drugs

Donald Trump said at a New Hampshire town hall the day before the primary that “every single one” of the convicted drug dealers released under President Obama will return to selling drugs, reported TIME.
“These people are babies that think differently,” Trump said of the inmates. “And a lot of them don’t even think differently, they just don’t care. Frankly, I don’t even think they care, it’s almost likely they don’t like the country. But out of those 6,000, every single one of them will be back selling drugs. It’ll be very rare for one that doesn’t.”
Six thousand inmates were released from prison at the end of 2015 as part of the Obama Administration’s effort to downsize the federal prison system and reduce sentences for nonviolent drug offenders. The administration supported the changes, but the release was made on the recommendation of the U.S. Sentencing Commission, an independent agency in the judicial branch that was created by Congress.
The snowy Londonderry talk was Trump’s second town hall-style event of the day, marking a noticeable shift from his usual arena rallies the day before the New Hampshire primary.
To read more CLICK HERE

Arkansas Senator Tom Cotton's warning about mandatory minimum sentencing

Below is an op-ed by Senator Tom Cotton challenging the need for criminal justice reform at

In the past 25 years, the United States has enjoyed a steady and dramatic drop in crime. This broad-scale enhancement of public safety has reaped immeasurable benefits in terms of lives saved, strengthened communities, and economic revitalization. But the U.S. Congress may be on the verge of throwing all that progress away.
The Senate is considering a bill that would impose broad and deep cuts to mandatory minimum sentences. This would make thousands of drug traffickers, armed robbers, carjackers, and other violent criminals eligible for early release from prison.
This in nothing short of a massive social experiment in criminal leniency. And this experiment threatens to undo the historic drops in crime we have seen over the past generation.
Since 1991, the nationwide violent crime rate has dropped 49 percent. Murder rates have dropped 52 percent. Robbery, a 59 percent drop.
This astounding reduction in crime was not an accident. It was the result of higher mandatory minimums put in place in the 1980s coupled with vigilant policing strategies pioneered by Rudy Giuliani and other American mayors and law enforcement officials.
Like almost all conservative achievements, the drop in crime is one built on the hard lessons of experience. The combination of mandatory minimums and innovative policing was designed and perfected through tough trial-and-error performed at local, state, and eventually federal levels. It is a strategy that arose from advocacy that originated in the communities and the cities that were hardest hit by the drug scourge of the 1980s. And it is one that has a proven record of success.
We should not lightly yield the criminal justice wisdom accumulated over decades to the passing fashions of current thinking. We should not blithely move from a proven strategy of accountability and vigilance to an experimental theory of leniency and impunity. We should not trade away concrete, hard-won gains when the results may be devastating to American communities.
But that is exactly what the sentencing bill moving through the Senate proposes to do. In a nation where more than half of released felons are rearrested within a year and 77 percent are rearrested within 5 years, we will see more needless crimes committed by those who are released early from prison. That is indisputable. And those new crimes will wreak havoc on individuals, families, and communities in each of the fifty states.
At this political moment, perhaps the proven and effective anti-crime strategy of strong mandatory minimum sentences is falling victim to its own success. Perhaps some have lived so long with relatively low crime rates that they’ve come to believe they are a given condition of our times. That makes them feel free to take chances with the nation’s safety.

But enhanced public safety is like oxygen: you don’t notice its presence until it’s gone. If public safety begins to dissipate, it’s the American people who will notice it. They will be the ones who suffer the consequences of this Congress’s decision to reverse 25 years of progress.
To read more CLICK HERE

Tuesday, February 9, 2016

Tasers may diminish ability to understand Miranda warnings

People who have been stunned with Tasers may be unable to understand Miranda warnings - and more likely to waive their rights or even give false confessions - according to the Philadelphia Inquirer
The study, the first randomized controlled trial of the weapons outside of manufacturer Taser International, found the 50,000-volt shocks significantly impair brain function in the short term.
"People who have just recently been tased run the risk of talking to police without the benefits of counsel and not understanding the consequences," said Drexel criminology and justice studies Professor Robert Kane. It was published this month in the journal Criminology and Public Policy.
Kane said the study makes the case for a nationwide policy requiring police to wait an hour after using a Taser on a suspect before interrogating him.
Kane, 48, who came to Drexel from Arizona State University in 2012, began the work after he and his colleagues heard about lawyers in the Phoenix area seeking to suppress clients' confessions. Kane collaborated with Arizona State University professors Michael White and Justin Ready on the research.
The lawyers in Arizona were arguing that their clients, having been stunned with Tasers, were unable to "knowingly, intelligently and voluntarily" waive their rights. That's the standard outlined in Miranda v. Arizona, the 1966 Supreme Court decision that held people must be advised of their constitutional rights to silence and to a lawyer before questioning.
With funding from the federal National Institute of Justice, the criminologists recruited 142 healthy individuals, mostly college students, who were willing to be Tasered, all in the interests of science.
Half were shocked; a subgroup underwent physical exertion before the shock, just as a suspect would be likely to have struggled with police.
Individuals who received the jolt performed worse on verbal learning tests and reported difficulty concentrating, elevated anxiety and feeling overwhelmed.
"People who get tased look a lot like 78-year-olds suffering from mild cognitive impairment and, in some cases, even patients with dementia," Kane said. On average, the effects subsided within an hour, though in some cases, it took up to a week.
Bradley Bridge, an assistant defender at the Defender Association of Philadelphia, said he'd be sharing the research with colleagues.
"This is new, and very troubling. It raises significant problems in terms of how the judicial system would deal with these issues," he said.
It could be grounds to argue that a defendant's waiver of rights was not knowing and voluntary - and that a confession must be thrown out. The question is likely to be litigated, he said.
A spokesman for the Philadelphia District Attorney's Office declined to comment on the potential 
Kane thinks the one-hour waiting period for questioning would be the best practice.
Police might argue that such a rule would prevent them from obtaining timely information, he said. But he dismissed that argument, noting the Supreme Court has already made exceptions to Miranda in cases where an immediate interrogation is necessary to resolve a threat to public safety.
Furthermore, Kane noted, his study might not even give the full picture of how Tasers impact mental function.
"We would expect 'typical' suspects - who may be drunk, high, or mentally ill and in crisis at the time of exposure - to experience even greater impairment," the study authors noted.
The study, which used five-second Taser exposures, also does not explore the effects on people who are Tased multiple times.
That's not uncommon, said David Rudovsky, a civil rights lawyer and University of Pennsylvania law professor.
"Tasers are often overused. People get re-tased, often, several times," he said.

To read more CLICK HERE

Monday, February 8, 2016

Supreme Court looks to mediate Porngate scandal involving justice

A Pennsylvania Supreme Court judicial tribunal has quietly brought in prominent Philadelphia lawyer Richard A. Sprague to mediate a deal in the Porngate scandal that could forestall a public trial for Justice J. Michael Eakin, reported The Philadelphia Inquirer.

Bruce Ledewitz, a law professor at Duquesne University and expert on the state Supreme Court, said he saw a role for mediators in labor disputes or divorces - but not in cases where judges stand accused of wrongdoing.

He compared the tribunal's action to a judge in a criminal case asking someone to help broker a deal.

"Imagine if a guy is on trial for murder and you bring in a mediator," Ledewitz said.

Geoffrey Hazard, a legal-ethics expert and emeritus law professor at the University of Pennsylvania, said the judicial tribunal seemed a little lost.

"They must be in deep doo-doo," he said of the panel. "They're in complete confusion."

Bruce Antkowiak, a professor of law at St. Vincent's College in Western Pennsylvania, praised Sprague's legal acumen, but said, "This pretty much is unprecedented."

He said lawyers for both sides of the Eakin case had apparently recognized that a "full hearing would be damaging to all parties."

Lynn A. Marks, executive director of the reform group Pennsylvanians for Modern Courts, said she viewed the hiring of Sprague as a "bad idea." "The public is entitled to hear the facts and the arguments discused openly," Marks said. ". . .Public confidence in the integrity of the courts will not be strengthened by a priate deal."

To read more CLICK HERE 

Sunday, February 7, 2016

Watch my interview on WFMJ-TV Weekend Today

Watch my interview on WFMJ-TV NBC Weekend Today regarding the surge of alcohol related offenses on Super Bowl Sunday. As well as an update on the prosecution in Pennsylvania of Bill Cosby.  To watch the interview CLICK HERE

Kane's failed bid to reinstate law license opens the door to removal

The Pennsylvania Supreme Court has denied state Attorney General Kathleen Kane's petition for ­reinstatement of her law license, reported The Legal Intelligencer.
The Supreme Court's order allows the Pennsylvania Senate to move forward with a vote on Kane's removal from office pursuant to Article VI, Section 7 of the state constitution. A special Senate committee on Jan. 27 concluded its investigation of Kane by recommending to the full Senate that it wait to vote until the high court ruled on her petition. The committee was reviewing whether Kane can fulfill her job duties with a suspended license.
Sen. Joseph B. Scarnati III, R-Jefferson, said in a statement Feb. 5 that the process can now move forward and he will begin meeting with the majority and minority leaders of the Senate to determine a date for the vote. A two-thirds vote in favor of removal would send the matter to Gov. Tom Wolf, who has called for Kane to step down but has not said whether he would approve her removal.
In a separate proceeding, the state House of Representatives is expected to vote as soon as Monday on a resolution that would authorize a committee to investigate Kane's ­conduct in office and determine if articles of impeachment are appropriate.
To read more CLICK HERE 

Saturday, February 6, 2016

GateHouse: When prosecutors renege on promises

Matthew T. Mangino
GateHouse Media
February 5, 2016

What was at stake this week in Norristown, Pennsylvania, when Bill Cosby and his attorneys appeared in court to seek the dismissal of the criminal charges brought against him by the Montgomery County district attorney?

A lot more than the prosecution of a high profile defendant for a particularly salacious crime.

The hearing focused on the defense’s argument that the charges against Cosby violated an agreement struck in 2005 with then-Montgomery County District Attorney Bruce Castor. Cosby’s lawyers say Castor promised not to prosecute the comedian if he agreed to testify in an anticipated civil lawsuit by his accuser, Andrea Constand.

The underlying issue could have ripple effects for the entire criminal justice system. Can an accused rely on the promise of a prosecutor?

Castor was called as the first witness by Brian J. McMonagle, one of Cosby’s lawyers during this week’s hearing. Castor testified that, last year, he contacted then-District Attorney Risa Vetri Ferman to tell her to “tread carefully.” The media attention was intense at the time as the Cosby case became an issue in the Montgomery County district attorney’s race.

“I knew that I had bound the commonwealth, as representative of the sovereign, not to arrest Mr. Cosby . . . and I wanted to make sure that she didn’t make a mistake and go ahead and move against Cosby . . . ”

Why would the word of a respected former prosecutor be called into question?

Last year, the recently sworn-in district attorney Kevin Steele and Castor, a former district attorney, were running against each other. During the campaign Steele produced a commercial that challenged Castor for not filing charges against Cosby when Castor was district attorney in 2005.

Castor declined to prosecute Cosby for the sexual assault of Constand in 2005. At the time he explained, “[T]he District Attorney finds insufficient, credible, and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt.” He continued, “[m]uch exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering light.”

Days before taking office Steele announced charges against Cosby. He suggested that new evidence unearthed in the years since Castor declined to prosecute Cosby had made the case viable once again.

Steele claimed the information derived from Cosby’s deposition was an important factor in his decision to file charges.

Prosecutors have argued the deal did not carry formal immunity without a judge’s approval under state law. In addition, they said Castor did not have the authority to make such an arrangement.

When asked why the agreement wasn’t memorialized in writing, Castor responded according The Legal Intelligencer, “he felt it was not appropriate at the time, since no civil case had yet been filed. He said it would be a suggestion that Cosby did something wrong, and that he wanted to use transactional immunity, which he said is a function of the district attorney.”

Anne Poulin, a law professor at Villanova University told Reuters she would be “shocked” if the judge found Castor had the power to “bind his office in perpetuity.” She was right Judge Steven O’Neil refused to dismiss charges against Cosby

But Poulin’s statement begs the question, if the DA can’t bind his office perpetually who can?

District attorneys are bound by agreements written or sealed with a handshake every day. For instances, the plea bargain, the grease that keeps the criminal justice system rolling, is based on an offer and acceptance--known in legal parlance as a contract. A defendant who relies on a contract to his detriment can force that contract to be honored.

Dolores Troiani, Constand’s lawyer, testified she did not need Castor to promise not to prosecute Cosby to get him to sit for a deposition. If he refused to testify she would have asked a judge to compel him. If he was compelled to testify it would have been with immunity--exactly what the prosecution successfully argued Cosby did not have.

Cosby was not compelled to testify. He did not invoke his Fifth Amendment right. Cosby voluntarily entered into an agreement, a contract, to testify in the civil case in exchange for not being prosecuted civilly.

Cosby had the right to refuse to sit for a deposition during the Constand lawsuit. If he testified in reliance on the prosecutor’s promise and now a new prosecutor intends to renege--that action can have a chilling effect on cooperating with law enforcement, testifying for the state and even negotiating pleas--the grease that keeps the system rolling.

Matthew T. Mangino is the former district attorney of Lawrence County, PA. He is of counsel with Luxenberg, Garbett, Kelly and George, PC in New Castle, PA. You can follow him on twitter at @MatthewTMangino.

To visit the column CLICK HERE

Friday, February 5, 2016

America's probation rate five times that of Europe

The Robina Institute of Criminal Law and Criminal Justice announced new research on American Exceptionalism in Probation Supervision, published Mariel Alper, Alessandro Corda, and Kevin R. Reitz. This is the first in a series of reports that will compare community supervision rates in the United States and Europe.
It is well known that the U.S. leads the world in incarceration rates. This Data Brief shows that, compared with Europe, America is similarly “exceptional” for its high rates of probation supervision. The average probation supervision rate for all fifty states is more than five times the average rate for all European countries included in the most recent Council of Europe data. Several U.S. States with the highest rates of probation supervision (e.g., Ohio, Rhode Island, Idaho, and Indiana) have rates that are eight-to-nine times the average European rate. Such stark differences exist despite the fact that many countries in Europe have overall crime rates that are quite similar to the U.S.
This Data Brief demonstrates for the first time that America suffers from “mass probation” in addition to “mass incarceration.” Although probation has often been thought of as an “alternative” to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision. Over the past several decades, the number of people under probation supervision in the U.S. has increased greatly. Nearly 4 million adults were under probation supervision across America at year-end 2013. In all reporting European countries, with roughly twice the population of the U.S., only 1.5 million adults were under probation supervision.
To read more CLICK HERE

Thursday, February 4, 2016

Most exonerations ever in 2015

Researchers found that 149 people were cleared in 2015 for crimes they didn't commit -- more than any other year in history, according to The Huffington Post. The details were part of  a report published Wednesday by the National Registry of Exonerations, a project of the University of Michigan Law School. 
By comparison, 139 people were exonerated in 2014. The number has risen most years since 2005, when 61 people were cleared of crimes they didn't commit. 
“Historically, this is a very large number for a type of event that we’d like to think almost never happens or just doesn’t happen,” Samuel Gross, a University of Michigan law professor who helped write the report, told The Huffington Post.
The men and women who were cleared last year had, on average, served 14.5 years in prison. Some had been on death row. Others were younger than 18 when they were convicted or had intellectual disabilities. All had been swept into a justice system that's supposed to be based on the presumption of innocence, but failed.
To read more CLICK HERE

Wednesday, February 3, 2016

Georgia executes state's oldest death row inmate

The 5th Execution of 2016
Georgia executed its oldest death row inmate Brandon Astor Jones, 72, who was first sentenced to death in 1979 for the death of Roger Tackett, who managed a convenience store, reported the Washington Post.
Jones was executed at 12:46 a.m. on February 3, 2016, state corrections officials said. He took a final prayer and recorded a statement, they said.
He was sentenced to death after being charged in Tackett’s death more than three decades ago. A Cobb County police officer had said that he saw Jones close the door to a room in the back of the convenience store and, not long after, heard four gunshots, according to a Georgia Supreme Court summary of the case. The officer said he went into the room and found Jones and another man, Van Roosevelt Solomon. A short time later, authorities found Tackett’s body; he had been shot five times, and two revolvers were found.
Jones was initially convicted and sentenced to death, but a district court vacated that sentence because a Bible was allowed in the jury deliberation room. A resentencing trial in 1997 ended with Jones again sentenced to death.
Jones declined to ask for a specific last meal, state officials said, and so was given what is known as the institutional tray (which includes chicken and rice, rutabagas, seasoned turnip greens and cornbread).

This execution is the first in Georgia this year and the fifth nationwide so far in 2016. Since the U.S. Supreme Court reinstated the death penalty in 1976, Georgia is among the leading capital punishment states, with only Texas, Oklahoma, Virginia, Florida and Missouri executing more inmates over that span.
To read more CLICK HERE

Tuesday, February 2, 2016

Only a third of Florida’s executions were the result of unanimous verdicts

Florida has more than 170 people on death row who may not have been condemned to die in any other state — the result of its one-of-a-kind law that allows a jury to recommend capital punishment by a simple majority vote, according to the Tampa Bay Times.
Unburdened by the need to reach a unanimous decision, Florida juries typically don’t. Two-thirds of the people Florida has executed since 1995 were condemned to die on the recommendation of fewer than 12 jurors, the Times analysis found.
No other state allows juries to recommend death by a 7-5 vote. Of the 32 states that have the death penalty, 29 require a unanimous vote of 12. Alabama requires 10. Delaware calls for jurors to unanimously agree on whether the defendant is eligible for the death penalty, but their sentencing recommendation can be split.
The number of inmates Florida has executed since 1995 might be very different if the state required more jurors to agree before sending prisoners to death row.
First take away the 7-5 cases. No other state allows a single juror to decide.
Then remove the 8-4s. The chart is now showing cases with at least 9 votes, which Florida prosecutors recently proposed making the state’s new standard.
Take away 9-3 cases to see how many others would meet the bar in Alabama, which requires at least 10 votes — the next most lax state after Florida.
Remove the 10-2 votes. More than half of the cases are now gone.
Take away the 11-1s. Only a third of Florida’s executions were unanimous — the level required in 29 of 32 states.
This month, the U.S. Supreme Court struck down Florida’s death penalty statute, forcing the Legislature to rewrite it. Although the court did not explicitly address the issue of non-unanimous jury votes, legal experts say this part of Florida’s law is in constitutional jeopardy.
The Times reviewed more than 450 death penalty cases dating back decades to determine how juries voted in the penalty phase of capital trials. The juries’ sentencing recommendations are merely advisory, another unusual feature, but no Florida judge has ignored a jury’s guidance in nearly two decades.
To read more CLICK HERE

Monday, February 1, 2016

U.S. Supreme Court will not hear Pennsylvania death penalty case

The U.S. Supreme Court declined to take up the case of a Pennsylvania death row inmate who wants to have the death penalty outlawed, according to LancasterOnline.
Shonda Walter was convicted in 2005 of first-degree murder in the 2003 hatchet attack death of her 83-year-old neighbor in Lock Haven.
The Associated Press reported the Supreme Court justices did not comment after turning away Walter’s challenge.
In a petition for certiorari, Walter’s attorney, Daniel Silverman, argued that the death penalty violates the Eighth Amendment because “our standards of decency have evolved to the point where the institution is no longer constitutionally sustainable.”
Silverman said Walter was “ill-served by counsel, leaving serious questions about her guilt and eligibility for the death penalty.” He also said Walter, who is black, “joined a mostly black death row … as a product of a system that even a state supreme court committee has acknowledged is plagued by racial discrimination.”
In June 2015, Supreme Court Justice Stephen Breyer wrote a lengthy dissent questioning the constitutionality of the death penalty.
“I believe it highly likely that the death penalty violates the Eight Amendment,” he wrote. “At the very least, the Court should call for full briefing on the basic question.”
The case that was declined is Walter v. Pennsylvania.

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