The Inquirer:More at stake for justice system than case against Cosby

Matthew T. Mangino
Commentary

The Philadelphia Inquirer

March 30, 2016

The purported deal between former Montgomery County District Attorney Bruce Castor and Bill Cosby has had an immediate impact on Cosby's prosecution. No, it hasn't resulted in the case being thrown out - yet - but it has resulted in the prosecution being delayed and derailed.

Defense attorneys contend that the charges against Cosby violated an agreement struck in 2005 with Castor. Cosby's lawyers say Castor promised not to prosecute the comedian if he agreed to testify in a civil lawsuit filed by his accuser, Andrea Constand.

First the delay: The case is on hold while the Superior Court considers the current Montgomery County district attorney's motion to quash the appeal filed by Cosby challenging the court order allowing the criminal case to proceed.

Now the derailment: Setting aside that Constand is suing Castor and the new district attorney is fighting Castor's subpoena seeking his 2005 investigation files, there is a lot more at stake than the prosecution of a high-profile defendant for a particularly salacious crime.

The underlying issue is, can an accused rely on the promise of a prosecutor? The answer will have ripple effects for the entire criminal justice system.

When Cosby was charged, only days before District Attorney Kevin Steele took office, his attorneys immediately requested the charges be dismissed because of a deal with Castor more than a decade ago.

At a hearing seeking dismissal of Cosby's charges, Castor was called as the first witness. 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 race between Castor and Steele.

"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 [Ferman] didn't make a mistake and go ahead and move against Cosby," Castor testified.

Castor declined to prosecute Cosby for sexual assault of Constand in 2005. At the time, he explained, "The 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, "Much 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."

Steele suggested that new evidence unearthed in the years since Castor declined to prosecute Cosby had made the case viable once again. He claimed that the information derived from Cosby's deposition was an important factor in his decision to file charges.

When he was asked why the agreement wasn't memorialized in writing, Castor's response, as summarized by the Legal Intelligencer, was that "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."

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.

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 criminally.

Cosby would have been protected by the U.S. Constitution if he refused to be deposed by Constand's attorneys. Instead, relying on the district attorney's promise, Cosby testified. Now, ignoring that commitment, the new district attorney is zealously trying to get out of the deal.

Such conduct is not without consequences - namely, distrust for the system and a chilling effect on cooperating, testifying, and even agreeing to plea bargains.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a former district attorney of Lawrence County and the author of "The Executioner's Toll." mmangino@lgkg.com

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We know about speedy trial, how about speedy sentence?

The Sixth Amendment provides various rights for “all criminal prosecutions.” Among those listed is “the right to a speedy and public trial.” This week, in Betterman v. Montana, the U.S. Supreme Court considered whether the “speedy” part of the right applies to a criminal defendant’s sentencing that happened about fourteen months after he was convicted by guilty plea, reported the SCOTUS Blog. 

The arguments on the constitutional question are also relatively simple. Both Montana and the federal government argue from plain textual language: “trial” in the Sixth Amendment does not include sentencing, and the speedy trial is complete when the jury announces (or, as here, a court accepts on guilty plea) a conviction. While the Sixth Amendment does apply to “all criminal prosecutions,” so that its other listed rights (like counsel) apply even at sentencing, the Framers expressly used a different word, “trial,” to distinguish the limit of the “speedy” right.

But Betterman too has some “plain language”: the Sixth Amendment says “speedy and public trial,” and Betterman says that the Court has ruled previously that the right to a “public” trial includes sentencing (In Re Oliver, 1948). Surely that is the dominant view today. But the state and federal government argue that this is an over-reading of Oliver; and that in any case the functions of the two concepts (public versus speedy) are different and should be construed differently for constitutional purposes, just as the jury trial right in the Sixth Amendment has been construed differently for trials versus sentencings.

Betterman argues that many of the purposes served by the speedy trial right apply to sentencings as well, and he argues that “the criminal system known to the Framers” involved “fixed penalties” for conviction, so that sentencings were always speedy. (On this last point, however, I invoke the author’s privilege: as I have previously written, the penalties that the Framers actually wrote for federal crimes they enacted in 1790 while the Sixth Amendment was pending were, in fact, not fixed but rather indeterminate, requiring further judicial consideration.) The state counters that some purposes served by a speedy trial are very different than those served by sentencing. And both the state and the federal government provide detailed historical arguments counterposed to Betterman’s.

Montana and the federal government further argue that, because past cases have said that the remedy for a speedy trial violation is dismissal of the charges, the speedy trial guarantee cannot apply to sentencing, since by that time the charges have been proved and dismissal would be a nonsensical remedy. Betterman argues persuasively, however, that different and lesser remedies (such as sentence reductions or credit for time served) could easily be formulated when a sentencing is unreasonably un-speedy.

Still, on balance the prosecutors appear to have the better of the basic constitutional argument, even though the Court will have to weave its way through various precedents with language pointing on different directions. But then what, if anything, remains to attract the Court’s attention? For that, we need to examine the details of the “as applied” subsidiary questions.

Subsidiary constitutional questions turn on more detailed facts.

Whichever way the basic constitutional question is decided, further “as applied” questions will remain. If the Speedy Trial Clause applies, then the question “was it violated here?” must be answered. If the Speedy Trial Clause does not apply, constitutional doctrine under the Due Process Clause still requires some analysis, and perhaps remedy, for an inordinately long delay in sentencing.

The Montana Supreme Court ruled that the Speedy Trial Clause applies only to trial, not the subsequent sentencing phase of a criminal case. Then that court also ruled that the facts here did not make out a due process violation. The Supreme Court will have to rule on that second question, one imagines, if it decides that the speedy trial right does not apply. And even if the Court decides that the speedy trial right does apply, the facts here seem simple and undisputed enough that the Court could also rule on whether it was violated here. Of course the Court can always remand, once a basic constitutional issue is settled. But because both parties present arguments on the subsidiary questions, and the facts (as opposed to “spin”) seem largely undisputed, I think the Court will go on to rule on them as well.

“Clean” constitutional cases like this one are relatively rare, and they can provide a relaxing intellectual “break” from the complex statutory and doctrinal cases the Justices spend much of their time on these days. So it may not be surprising to see some Justices actively engaged and having “fun” at argument on this one. But I am betting that while they may possibly be divided, they will not find it difficult or bitter to decide.

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Mississippi moving toward implementing the firing squad

The Mississippi House wants to allow the state to execute prisoners using a firing squad if officials decide lethal injection is too expensive or unavailable.

The House amended Senate Bill 2237 last week, which dealt with making the execution process secret, passing it 80-39 and sending it back to the Senate for more work.

Attorney General Jim Hood asked lawmakers earlier this year to approve alternate execution methods including the firing squad, electrocution and the use of nitrogen gas. Those measures had not passed either chamber, until now.

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Maryland Senate unanimously approves criminal justice reform bill

The Maryland Senate unanimously approved a landmark criminal justice bill  last week, according to Jurist. The bill, known as the Justice Reinvestment Act, would significantly change how non-violent drug offenders are sentenced, shifting focus from prison to treatment. The changes in the sentencing structure would allow the state to save money on prison costs and allow those serving mandatory minimums to appeal their sentences. Supporters believe these changes are needed to ensure public safety. The legislation now moves to the House for consideration.

In July US President Barack Obama spoke at the NAACP Annual Convention and urged [JURIST report] Congress to reform the criminal justice system by enacting legislation that would enforce criminal laws fairly and reduce sentencing disparities. Earlier that week Obama commuted the sentences[JURIST report] of 46 drug offenders in what he said was part of an effort by his administration to remedy the unfairness of the criminal justice system. In 2014 the US Department of Justice announced support for reducing the sentences of nonviolent drug offenders in federal prisons after the US Supreme Court relaxed[JURIST reports] sentencing guidelines on drug dealers earlier that year. In 2013 the American Civil Liberties Union published a study [JURIST report] finding that 3,278 Americans are currently serving life sentences without parole for nonviolent offenses.

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Sabermetric research for crime

One of the most widely cited figures in criminal justice is America’s incarceration rate. About 2.2 million people were in our prisons and jails in 2014, or 900 for every 100,000 adults in the country, the highest of any major country on earth, reported The Marshall Project.

For years, criminal justice wonks  have yearned for metrics that would tell us more: Are we locking up the truly dangerous criminals? Is the system working? How is California doing relative to Texas or Pennsylvania?

On Wednesday, the Pew Charitable Trusts and its Public Safety Performance Project offers what it calls “a more nuanced assessment” of punishment. Rather than measuring the ratio of inmates to residents of a given jurisdiction, it measures the ratio of inmates to serious crime.

“Using the punishment rate to examine the U.S. criminal justice system, Pew found that all states became more punitive from 1983 to 2013, even though they varied widely in the amount of punishment they imposed,” the report says. In 37 states the “punitiveness” more than doubled.

It’s an interesting thought experiment, but it underscores how complicated and difficult it is to really measure the effectiveness of our criminal justice system.

We’ve grown accustomed to a quantified world of ever more complicated data available at our fingertips, on everything from how we sleep and eat to how often left-handed pinch hitters hit ground rule doubles on rainy days.

“The incredible databases of what we have for sports just blow away anything there is in criminal justice. It's kind of crazy,” said Adam Gelb, director of Pew’s Public Safety Performance Project, adding, “We can't answer some of the most basic questions about one of the most important functions of a society.”

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GateHouse: Guilty until proven innocent

Matthew T. Mangino

GateHouse Media

March 25, 2016

The presumption of innocence is one of the most overworked phrases in the criminal justice system. For all its fame and usage the presumption of innocence is not mentioned anywhere in the U.S Constitution.
Scrupulous prosecutors are careful to affix “alleged” when talking about a suspect. Defense attorneys are eager to point out that their clients are innocent until proven guilty. The presumption of innocence is more a rule of evidence than a rule of law. A jury, or judge, must presume an accused innocent until proven guilty beyond a reasonable doubt. No one is entitled to the presumption of innocence before trial begins.
Although the presumption of innocence is an issue for trial, there are a growing number of situations that appear to encroach on fundamental liberty rights before an accused is adjudicated guilty.
The U.S. Supreme Court ruled in 2013 that police can take DNA samples from people who are arrested but not yet convicted of a crime, and see if the DNA matches any samples from unsolved crimes in a national database.
Twenty-eight states and the federal government have enacted laws that provide for automatic DNA testing of arrestees. The 5-to-4 decision included a fiery dissent from the late conservative justice, Antonin Scalia.
“I don’t think that any person should have their DNA taken before they are convicted,” Washington State Representative Sherry Appleton told The Olympian. “In this country, you are innocent until proven guilty; it’s not the other way.”
In 2014, New Jersey voters approved a proposal to amend the state constitution allowing judges to deny pre-trial release to some defendants charged with serious crimes.
The constitutional amendment would affect defendants who are considered a danger, a flight risk or a threat to obstruct justice even though the defendant has not yet been convicted. In most states, a defendant can be denied bail only if facing a capital offense. Bail is to insure a defendant’s appearance for future court proceeding, it is not, nor should it be, punitive in nature.
Opponents argued that imprisoning individuals without bail while awaiting trial, which could easily be months or years off in the future, is an egregious civil rights violation and establishes a precedent that could be used to punish or coerce someone accused of a crime, according to the Times of Trenton.
In Pennsylvania, State Representative Ed Gainey recently proposed House Bill 655 which would eliminate the statute of limitations for criminal and civil cases of child sex abuse.
Gainey told the Centre Daily Times, “How can we put a limitation on the value of life?”
Under Gainey’s proposal a defendant could face a criminal prosecution based on allegations of sexual assault that occurred 50, 60 even 70 years ago. The statute of limitation has been around since antiquity. As time passes memory fades, witnesses die and evidence disappears. The statute of limitations protects individuals from facing charges under those hopeless circumstances.
Finally, a fundamental principle of criminal law has long been that the government must prove that a defendant had the criminal intent to commit a crime.
This legal protection is now being eroded as Congress continues to churn out legislation in dramatic numbers. In the last quarter century, there has been onslaught of federal laws enacted that weaken the government’s responsibility to prove criminal intent. The increasing number of crimes and the absence of having to prove the willful nature of conduct is alarming.
Andrew Weissmann, a former federal prosecutor told the Wall Street Journal, requiring the government to prove a willful violation is “a big protection for all of us.”
No one would advocate for making it easier for a batterer, rapist or killer to get away with a grievous crime. However, lawmakers should not make it increasingly more difficult for an innocent person to protect their liberty interests and the right to mount a vigorous defense.

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

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Federal corruption prosecutions fall to 20 year low

The latest available data from the Justice Department indicates that the long-term decline in federal criminal prosecutions for official corruption has continued. During FY 2015 the government reported 505 new official corruption prosecutions. Early information indicates that just 140 new corruption prosecutions have been filed during the first four months of FY 2016. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), the total for FY 2015 is down 3.6 percent over the previous 2014 fiscal year total of 524 such prosecutions.

The comparisons of the number of defendants charged with official corruption offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys (see Table 1).

This is the lowest level for official corruption prosecutions over the past 20 years. Compared to five years ago when there were 727, the number of FY 2015 prosecutions of this type is down 30.5 percent. Prosecutions over the past year are lower than they were ten years ago. Overall, the data show that prosecutions of this type are down 23.6 percent from the level of 661 reported in 2005 and down 38.1 percent from the level of 816 reported in 1995. Also see earlier 2014 TRAC report on this trend.

The long term trend in official corruption prosecutions going back to FY 1995 is shown more clearly in Figure 1. The vertical bars in Figure 1 represent the number of official corruption prosecutions of this type recorded each fiscal year. Each presidential administration is distinguished by the color of the bars. To view trends month-by-month rather than year-by-year, see TRAC's monthly report series for the latest data.

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Texas carries out execution by lethal injection

The 9th Execution of 2016

A Texas man on death row for killing a worker who was on his property looking for city code violations was put to death on March 22, 2016, according to the Houston Chronicle.

Adam Ward was given a lethal injection for shooting and killing Michael Walker, a code enforcement officer who was taking photos of junk piled outside the Ward family home in Commerce, about 65 miles northeast of Dallas.

Ward had said the 2005 shooting was in self-defense, but the 44-year-old Walker only had a camera and a cellphone.

Ward's attorneys, both at his trial and later for his appeals, described him as delusional and mentally ill. Hours before his execution, the U.S. Supreme Court rejected an appeal that argued his mental illness should have disqualified him from the death penalty.

The 33-year-old Ward thanked his supporters, expressed love for his parents and said he hoped "some positive change can come from this."

But he insisted the shooting was not a capital murder case. "This is wrong what's happening. A lot of injustice is happening in all this," he said.

"I'm sorry things didn't work out," he added later. "May God forgive us all."

He was given a lethal dose of pentobarbital and as it took effect, he took a deep breath followed by a smaller one. He then stopped moving.

He was pronounced dead at 6:34 p.m. CDT  — 12 minutes after the drug started to flow into him.

Ward became the ninth convicted killer executed this year nationally and the fifth in Texas, which carries out capital punishment more than any other state.

In their appeal to the Supreme Court, Ward's attorneys argued the high court's ban on executing mentally impaired prisoners should be extended to include inmates like Ward who have a severe mental illness and that putting him to death would be unconstitutional because of evolving sentiment against executing the mentally ill.

The justices have ruled mentally impaired people, generally those with an IQ below 70, may not be executed. However, the court has said mentally ill prisoners may be executed if they understand they are about to be put to death and why they face the punishment.

State attorneys, who said evidence showed Ward's IQ as high as 123, said the late appeal did not raise a new issue, meaning it was improper and without merit. They also disputed claims of changing attitudes about executing the mentally ill.

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Watch my interview on WFMJ-TV

Watch my interview on WFMJ-TV regarding an accused's alleged effort to intimidate a witness, a police chief in Greenville, PA, through social media.  

CLICK HERE to watch the interview. 

Colorado parole process failing to protect public safety

A push to reduce recidivism rates among Colorado parolees is leaving dangerous ex-cons on the streets, according to the Denver Post, The list includes a man accused of murder, another who shot a Denver police officer and another man accused of pimping a teen runaway, as reported in The Crime Report.
Instead of sending difficult offenders back to prison for breaking rules, parole officers increasingly are told to find alternatives such as counseling, short-term jail stints or other sanctions. A 2015 law aimed at reducing the prison population changed how and when parolees are arrested and sent before the state parole board.
In October, the Department of Corrections added another layer that put the decision about whether to seek parole revocation in the hands of just two people. Within three months, the changes slashed in half recidivism rates for technical violations. The reduction has come at a cost. Parole officers describe a high hurdle created by their bosses that has left them feeling frustrated and powerless to protect the public.
In some cases, "There's only one way to stop the madness, and that's put them in jail," one parole officer said. "We effectively let a guy get killed." He and five other parole officers spoke to the Post on condition of anonymity for fear of retaliation by corrections department officials. The officers pointed to changes that put state parole director Melissa Roberts and deputy director Alison Morgan at the center of the Department of Corrections' drive to reduce recidivism rates.
Roberts and Morgan decide when a parolee faces a revocation hearing before the state board and when they will be allowed to remain free. Previously, parole officers could make those decisions on their own. The parole officers said they felt compelled to bring attention to the changes after parolee Calvin Johnson, a 44-year-old homeless man, was charged with murder in a New Year's Day stabbing death of another homeless man.
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PLW: U.S. Justices Take a Look at Pennsylvania Supreme Court

Matthew T. Mangino

The Pennsylvania Law Weekly

March 22, 2016

A few weeks ago, the U.S. Supreme Court heard arguments in Williams v. Pennsylvania, No. 15-5040. Attorneys for Terrance Williams argued that former Pennsylvania Supreme Court Chief Justice Ronald Castille should have recused himself from a 2014 case involving Williams.

Castille was the district attorney of Philadelphia in 1986 when Williams was sentenced to death. Nearly 29 years later, Castille—then on the state Supreme Court—joined in a unanimous decision reversing a trial judge's decision to reverse Williams' death sentence.

Shawn Nolan, who handles death-penalty appeals in the Federal Community Defender Office in Philadelphia, told The Associated Press before the argument, "It's just not right."

For his part, Castille said, "In Pennsylvania, we leave it up to the judge's personal conscience ... I've always been confident that I can be fair and impartial."

Williams was convicted and sentenced to death for the robbery and murder of Amos Norwood. The Supreme Court affirmed Williams' conviction and sentence, and he filed three petitions under the Post-Conviction Relief Act, all of which were denied and affirmed by the Pennsylvania Supreme Court. Williams also petitioned for federal habeas relief, which was denied.

On his fourth try for post-conviction relief, Philadelphia Court of Common Pleas Judge M. Teresa Sarmina, said prosecutors in Castille's office had failed to turn over evidence of the abuse to Williams' lawyer, and she vacated the death sentence five days before Williams was scheduled to be executed.

Williams moved to have Castille recuse himself from this case. He refused and ultimately joined the opinion that reversed Sarmina's decision. Castille, in an opinion laced with withering criticism, suggested Sarmina's court had become "unmoored from its lawful duty" and accused Williams' lawyers of sidestepping procedural rules and "pursuing an obstructionist anti-death penalty agenda."

The Philadelphia District Attorney's Office argued that Castille played only a fleeting part in Williams' prosecution, limited to signing off on the decision to seek the death penalty.

"His signature on that [capital case] memo, in January 1986, was his first, last, and only contact with this case," prosecutors said during oral argument before the U.S. Supreme Court.

A majority of U.S. Supreme Court justices voiced concern that Castille participated in the case. Justice Sonia Sotomayor said, "The judge here actually signed his name to the review of the facts and the decision to seek the death penalty."

Justice Elena Kagan indicated Castille should have recused himself because he personally signed off on seeking the death penalty.

"He made the most important decision that could be made in this case," Kagan said.

By deciding to judge the conduct of his own office in a case in which he was personally involved, Castille created a judicial conflict so obvious and so extreme that it violated the due process clause's guarantee of an impartial justice system, wrote Brianne J. Gorod, chief counsel of the Constitutional Accountability Center, on the American Constitution Society website.

"Chief Justice Castille's conduct deeply undermined the integrity of the judicial proceedings and trampled any notion of due process for Mr. Williams," wrote Lawrence J. Fox in an amicus brief filed by the Ethics Bureau at Yale Law School.

Nearly seven years have passed since the U.S. Supreme Court ruled on whether a judge should have recused himself.

The last time the court took up the issue of judicial was in 2009. In Caperton v. A.T. Massey Coal, 556 U.S. 868 (2009), West Virginia Justice Brent Benjamin was asked, and refused, to recuse himself in a case in which one of the parties had contributed $3 million to his election campaign. He voted with the majority, in favor of his contributor, reversing a jury verdict.

In analyzing a question of recusal, the court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is "likely" to be neutral, or whether there is an unconstitutional "potential for bias." This unconstitutionally high risk of bias exists where "'experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.'"

Applied to the facts of Caperton, the U.S. Supreme Court held that "there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."

The death penalty, like campaign contributions, can have an impact on the impartiality of the court. Data analyzed last month by Reuters found a strong correlation between the results in death-penalty cases and the way each state chooses its justices.

In states like Pennsylvania where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals compared to a 26 percent reversal rate in states where justices are appointed, Reuters reported.

Castille has always been a proponent of the death penalty. When he was running for a seat on the state Supreme Court, although prohibited from taking a position on specific issues, he would say, according to The New York Times, "I can certainly say I sent 45 people to death row as district attorney of Philadelphia," adding that voters "sort of get the hint."

In a scathing decision in September 2014, only months before the Williams decision, Castille took the Federal Community Defenders Office to task. "Death-penalty opponents, such as the Federal Community Defenders Office, can then redirect their efforts to the political arena, where they belong," Castille said. "This court has a responsibility for the entire Pennsylvania judicial system, to ensure the delivery of swift, fair, and evenhanded justice in all cases."

Castille wasn't shy about lambasting Williams either as the argument before the high court approached. Castille said, "He [Williams] was actually a male prostitute ... He was prostituting himself for money. This guy he killed was not the most upstanding individual, but he still took the guy's life."

As court observers wait on the high court's decision, it is worth noting that Gov. Tom Wolf has vowed to grant a reprieve to every death-row inmate scheduled for execution in Pennsylvania.

Williams was the first to benefit by Wolf's pledge. Even without the governor's intervention executions are unlikely in Pennsylvania. The state has not carried out an involuntary execution in more than a half century. There has been three executions in Pennsylvania since 1978 and all three men volunteered to be executed.

A decision is expected this summer by the U.S. Supreme Court. •

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Ohio Supreme Court rules state gets second shot at execution

A lawyer representing the state of Ohio said that the state must have the ability to call off an execution when problems occur and know that the process is not just "one and done.," according to the Cleveland Plain Dealer.

In September 2009 the state tried to execute Romell Broom by injection, but the state's execution team was unable to insert two shunts into a vein through which the lethal drugs could be pushed into Broom's body. 

The team tried for 45 minutes before taking a break. More attempts were made, but after two hours the state's prison director recommended the process be stopped. Gov. Ted Strickland then ordered a temporary reprieve. 

The court ruled that Broom's rights protecting him from being punished twice for the same crime were not violated because the first attempt did not constitute an execution as defined by state law. 

"There is no question that lethal drugs did not enter Broom's body," Justice Lanzinger wrote. "The execution attempt was halted after preparations to establish a viable IV line were unsuccessful."

State law defines an execution as commencing when lethal drugs enter the IV line to the inmate's body. Since that did not happen, double jeopardy protections did not attach, she wrote. 

Following the 2009 attempt, Broom's legal team sought to keep the state from making a second attempt to execute him.  

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GateHouse: Criminal justice reform and the race for the White House

Matthew T. Mangino

GateHouse Media

March 18, 2016

When the first George Bush interjected Willie Horton into 1988 the presidential election, blatantly stoking fears of crime and race; and when the first Clinton presidential candidate, Bill, departed the campaign trail to oversee an execution in his home state of Arkansas, being tough on crime was a staple of presidential politics.
Crime as a hot button issue began in 1964 with Barry Goldwater. The GOP nominee for President introduced the concept of crime as a divisive, fear mongering issue and America has never been the same.
When Richard Nixon was making his second bid for President in 1968 the Civil Rights Act had passed, riots had erupted in cities across the country after the murder of Martin Luther King, Jr., and murder rates had increased 50 percent since 1950.
Race relations were tenuous, at best, and Nixon knew it. Crime control became a surrogate for race control. And every man and woman in America is paying for it, in more ways than one.
During the 1980s, drug laws became more and more onerous. Ronald Reagan introduced draconian mandatory minimum sentences and even harsher drug penalties. For instance, the Anti-Drug Abuse Act of 1986 created much harsher sentences for the use of crack cocaine, popular in predominately African American urban neighborhoods, as opposed to powder cocaine, popular in more affluent suburbs.
When George H.W. Bush and Bill Clinton made their crime-fighting bona fides know through campaigning and governing--Clinton’s 1994 crime bill is still reverberating through the criminal justice system--crime disappeared as an issue in national politics . . . until now.
Overburdened prisons and resulting costs are unsustainable. Policymakers nationwide spent more than $60 billion on incarceration in 2015.
Mounting costs and racial disparities have made crime an issue in 2016?
Texas Senator Ted Cruz, one of three remaining GOP candidates for President, has called for a reevaluation of “draconian mandatory minimum sentences.” He also put blame on prosecutors and plea bargaining for unfairly pressuring the innocent to plead guilty.
John Kasich is the governor of Ohio. His recent primary win in his home state has renewed interest in his work on reform in Ohio. Kasich created a community-police advisory panel on reform. The panel came up with a series of recommendations including limiting the use of deadly force only in response to an imminent threat to life and requiring police to utilize body cameras.
Donald Trump, the GOP frontrunner, has turned the drive for reform on its head. He has taken the old school approach to crime and politics. His position can be described as “over the top on crime.” Nothing illustrates this more than his ardent support for the death penalty and disappoint with the manner in which it is carried out, “My only complaint is that lethal injection is too comfortable a way to go.”
Democrat Bernie Sanders appears to be the anti-Trump on criminal justice reform, “[W]e need major reforms in our broken criminal justice system . . . it makes a lot more sense to me to be investing in jobs and education for our young people than in more and more jails.”
Hillary Clinton has been an advocate for reform, although saddled at times with the results of her husband’s 1994 crime bill. She said last year, “you cannot talk about smart policing and reforming the criminal justice system if you also don’t talk about what’s needed to provide economic opportunity; better educational chances for young people; more support to families so they can do the best jobs they are capable of doing to help support their own children.”
There is a silver lining to this raucous and, at times, violent election year. Just four years ago, talk of criminal justice reform during a presidential campaign would have been a nonstarter.

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

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Trump on torture: 'You bet your ass I would—in a heartbeat'

Donald Trump stated unequivocally that he would bring back torture, according to The Nation. “Would I approve waterboarding?” he told a cheering crowd at a November rally in Columbus, Ohio. “You bet your ass I would—in a heartbeat.” And for Trump, that would only be the beginning. He assured his listeners, vaguely but emphatically, that he “would approve more than that,” leaving to their imaginations whether he was thinking of excruciating “stress positions,” relentless exposure to loud noise, sleep deprivation, the straightforward killing of prisoners, or what the CIA used to delicately refer to as “rectal rehydration.” Meanwhile, he just hammers on when it comes to torture. “Don’t kid yourself, folks. It works, okay? It works. Only a stupid person would say it doesn’t work.”

Only a stupid person—like, perhaps, one of the members of the Senate Intelligence Committee who carefully studied the CIA’s grim torture documents for years, despite the Agency’s foot-dragging, opposition, and outright interference (including computer hacking)—would say that. But why even bother to argue about whether torture works? The point, Trump claimed, was that the very existence of the Islamic State means that someone needs to be tortured. “If it doesn’t work,” he told that Ohio crowd, “they deserve it anyway.”

Only a few days later, he triumphantly sallied even further into war criminal territory. He declared himself ready to truly hit the Islamic State where it hurts. “The other thing with the terrorists,” he told Fox News, “is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families.” Because it’s a well-known fact—in Trumpland at least—that nothing makes people less likely to behave violently than murdering their parents and children. And it certainly doesn’t matter, when Trump advocates it, that murder is a crime.

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Say it ain't so: Sen. Toomey would consider Judge Garland if nominate by anyone but President Obama

Sen. Pat Toomey would consider Judge Merrick Garland if nominate by anyone but President Obama, according to Politicspa.com.

Toomey is quoted as saying, “With the U.S. Supreme Court’s balance at stake, and with the presidential election fewer than eight months away, it is wise to give the American people a more direct voice in the selection and confirmation of the next justice. Should Merrick Garland be nominated again by the next president, I would be happy to carefully consider his nomination, as I have done with dozens of judges submitted by President Obama.”

To read more CLICK HERE

Justice Reinvestment not working in Indiana, costs are up after sentencing reform

Prison officials say a massive sentencing reform law that was supposed to save taxpayer money in Indiana is actually costing more, according to the Herald Bulletin.

The Department of Correction reports costs have more than tripled since it began diverting low-level offenders out of state prisons and back into their communities, as required by the new law.

Its report, which has yet to be released publicly, is alarming to some lawmakers who’ve seen it.

Senate Judiciary Chairman Brent Steele, R-Bedford, calls it “ridiculous” and says the report contains “phony-baloney numbers.”

Lawmakers who pushed to lower penalties for drug-related crimes, such as drug possession and theft, vowed to return anticipated savings from prison costs to communities for treatment programs, community corrections and local lock-ups.

But, according to the department's report, there's no money to send.

This despite a reduction in the prison population of more than 5,000 inmates – a 17 percent drop - since the law went into effect in July 2014.

Local sheriffs who supported the sentencing reform law are unhappy.

“We supported the reforms because we knew it was the right thing for our communities,” said Daviess County Sheriff Jerry Harbstreit, former head of the Indiana Sheriffs Association. “But this like a slap in the face."

The expense is expected to climb before the year’s end.

That’s because the state spends about $35 a day to house a convicted, low-level offender in a county jail, according to the Correction Department report.

The department claims it can house the same inmate in a prison for just under $10 a day.

Steele and other lawmakers who were deeply involved in crafting the sentencing reform law are irked by those claims.

Two years ago, when Correction Department officials asked lawmakers for money, they reported it cost about $60 a day to house a state prisoner.

A year ago, prison officials said they needed an additional $51 million to build a new state prison. Steele and others rejected the proposal, predicting that the state would be able to close a prison – and save millions – as sentencing reform took hold.

Steele said the department now is refusing to cooperate with the intent of the sentencing reform law.

Corrections officials don’t see it that way. The department's legislative director, Jon Ferguson, said the $10-a-day rate used in the report is a “marginal per diem” that doesn’t include the fixed, operational costs associated with running big prisons. And the number of those prison facilities the state operates hasn’t gone down since the sentencing reform law was put into place.

To read more CLICK HERE

Porngate claims another victim, Justice Eakin resigns

Suspended Pennsylvania Supreme Court Justice J. Michael Eakin tendered his resignation from the state's high court, ending a six-month fight for survival in an angry court of public opinion.

Eakin's resignation was announced by his attorney, William Costopoulos, minutes after it was delivered to court offices in Harrisburg, reported the Harrisburg Patriot News.

The resignation will leave the court functioning with six justices until a successor is appointed by Gov. Tom Wolf and confirned by the Pennsylvania state Senate.

It also brings to a sudden and quiet end Eakin's public argument that a man whoprivately laughs at racial, ethnic and sexual humor can fairly judge essential legal issues pertaining to civil rights and fairness in the criminal justice system.

In a series of rulings this winter, that argument appeared to be running headlong into a statewide judicial ethics court that appears newly-sensitized to fixing even the appearance of a slanted criminal justice system.

To read more CLICK HERE

The battle rages on in Montgomery County

Not Between Cosby and Prosecutors, But Between Prosecutors and a Former Prosecutor
Montgomery County District Attorney Kevin Steele is aiming to quash a subpoena served by former District Attorney Bruce L. Castor Jr., seeking information from the criminal investigation of Bill Cosby that took place while Castor was district attorney.

Steele filed a motion to quash Wednesday in Constand v. Castor. Castor had sought from Steele's office all statements, transcripts and other recordings from 2004 and 2005 made by Andrea Constand, who has alleged Bill Cosby sexually assaulted her. It specifically asked for any statements made to Montgomery County detectives, Philadelphia Police, Cheltenham Police and Ontario Police.

Constand told law enforcement in 2005 that Cosby had sexually assaulted her the year before. After investigating the allegations, Castor announced that his office would not be criminally charging Cosby. Constand later sued Cosby and the case ended in a confidential settlement.

Constand filed a defamation lawsuit against Castor in October. The complaint alleged that Castor conveyed and implied that Constand was inconsistent in her accusations of Cosby and exaggerated her claims. According to the lawsuit, Castor told The Associated Press in September that Constand lodged more serious complaints in her civil suit than she told police. Castor was serving as a county commissioner and was running for district attorney at the time, against Steele.

In his motion to quash, Steele said Castor is not entitled to the statements collected while Castor was district attorney. The motion said the Pennsylvania Criminal History Record Information Act prohibits disclosure of those statements, unless it is to a criminal justice agency.

In an affidavit supporting Steele's motion, Montgomery County detective James Reape noted that, upon information and belief, Castor is a special assistant district attorney in Centre County.

"However, his instant request, which I have reviewed, stems from a defamation suit against him personally," Reape wrote. "Therefore, even if defendant could be considered a law enforcement agency, he seeks this information in his personal, not law-enforcement, capacity."

Reape's affidavit said Constand did not make any statements to law enforcement in 2004. The statements she made in 2005, he said, have been kept confidential.

Robert C. Pugh of Kane, Pugh, Knoell, Troy & Kramer, an attorney for Castor, could not be reached for comment on motion to quash. Neither could Dolores Troiani, an attorney for Constand.

Read more: http://www.thelegalintelligencer.com/id=1202751901933/DA-Opposes-Subpoena-of-Cosby-Accusers-Statements#ixzz42YCDwFJu

What will happen to the hundreds of Pennsylvania juvenile lifers

In 2012, the U.S. Supreme Court decided that mandatory life-without-parole sentences were unconstitutional for those younger than 18. This January, the court ruled that the ban must be applied retroactively. Since then, Pennsylvania's high courts have vacated dozens of life sentences, reported the Philadelphia Inquirer.

About 480 other juvenile lifers across the state, 300 of them from Philadelphia - will receive new sentencing hearings following the Supreme Court's ruling in Montgomery v. Louisiana. But a key question remains: What sentencing law applies?

"Nobody has any real answer," said State Sen. Stewart Greenleaf, a Montgomery County Republican who chairs the Judiciary Committee. 

"We're in uncharted territory here," he said, "because we have a situation where the law these juveniles have been sentenced under has now been found to be unconstitutional, and the laws that we adopted as a legislature were adopted after they were sentenced originally" and do not apply to them.

The most straightforward resolution might be new legislation, but it's not so simple.

After the 2012 decision in Miller v. Alabama, Pennsylvania enacted new sentences for juvenile killers: 25 years to life for those younger than 15, and 35 to life for those 15 to 17. But that law excluded anyone whose sentence was final before the Miller decision. Greenleaf said there's no changing that.

"The problem is, even if we pass something, it would be ex post facto," or retroactive, he said. "I don't think the legislature can do anything at this point, because it could be unconstitutional what we do."

Marsha Levick, chief counsel at the Juvenile Law Center, said no new law is needed. Her solution: Resentence juveniles to 20 to 40 years in prison, the punishment for third-degree murder.

"Because there is no constitutional sentencing statute that applies to these individuals, we would argue the court should apply the next-harshest sentence," she said. "That's all the court can do. It can only apply a constitutional sentence."

But Pennsylvania courts have already gone a different route.

About two dozen juvenile lifers - all sentenced, but still in the appeals process, when Miller came down - have received new sentences based on judges' discretion. The results have varied wildly.

Pennsylvania's Supreme Court, in the case of Qu'eed Batts - who at age 14 committed a gang-related murder - said the appropriate sentence for individuals such as him would carry a minimum number of years in prison and a maximum of life.

So brothers Devon and Jovon Knox, who were convicted in a Pittsburgh carjacking and murder, received new sentences, of 35 years to life and 25 years to life respectively.

But in re-sentencing Ian Seagraves, who committed a brutal murder in Monroe County, a judge told him, "At this point in time, I have the option of life with parole or life without parole." The judge concluded that life without parole was still the appropriate sentence.

Doug Berman, a sentencing expert at the law school at Ohio State University, said such inconsistency was unsurprising.

"This is the problem when the law is uncertain. It's subject to different suppositions, some of which may be completely out to lunch. Uncertainty breeds errors and differences of opinion," he said.

The U.S. Supreme Court said in Miller that courts must consider the individual situation and the "mitigating qualities of youth" before imposing the sentence of life without parole.

Pennsylvania Victim Advocate Jennifer Storm has been inundated with calls and emails from prosecutors and judges trying to figure out how to handle the cases and what sentencing laws apply.

"I know some of these D.A.s are going to go back and ask for the highest minimum they can because there's a public safety question here," she said.0-\* 

She said if courts are guided by the state's new sentencing law created after Miller, 189 offenders out of 480 would be immediately eligible for parole. The average time served among the 480 is 36 years, and the longest is 62 years.

"In some of these cases, you're going to see time served become the new minimum. Obviously that needs to be very carefully negotiated with the D.A., the defender, and the surviving family members."

For Anita Colon, Holbrook's sister and an advocate for sentencing reform, consideration is all she wants for her brother.

"The court said you have to look at the individual case and understand what that child had been going through," she said. She says her brother's young age at the time of the crime, his conduct over the last 26 years, and that he was not the actual killer all work in his favor. "He made a stupid decision and, without a doubt, he needed to be punished for that, but not to take away the rest of his life."

Prosecutors, judges, and defense lawyers across the state, which the Pennsylvania Corrections Department says has more juvenile lifers than any other, have been tangling with this question and coming to disparate conclusions. One Chester County judge converted the cases on his docket to "time served to life," triggering the immediate possibility of parole.

But Richard Long, executive director of the Pennsylvania District Attorneys Association, said there was some consensus among prosecutors: "We believe that the sentencing provision enacted by the legislature for those cases after June 2012 can serve as good guidance."

Bradley Bridge, who's working on the cases for the Defender Association of Philadelphia, said he had been meeting with prosecutors and judges in Philadelphia to set up a structure to resolve the cases, including what sentences could be imposed. To him, one thing is clear: Resentencing juveniles to life is not permissible.

"They must be given new sentences that have both a minimum and a maximum," he said. "That is what is required under Pennsylvania law."

Berman called the situation unprecedented: When the Supreme Court struck down other harsh laws, such as the juvenile death penalty, it was relatively straightforward to convert those sentences to an obviously milder sentence of life in prison.

But in this case, different inmates - ones who have served 40 years already and those who have served five - are likely to argue for different resolutions. He said, "It's hard to engineer a one-size-fits-all solution."

"This is one of the reasons, I think, why the jurisdictions like Pennsylvania, which had the most Miller cases, were disinclined to apply this retroactively," he said. "You get all these complications just to sort out what law applies."

To read more CLICK HERE

GateHouse: High court examines reach of its decision on mandatory sentencing

Matthew T. Mangino

GateHouse Media

March 11, 2106

Last summer, the U.S Supreme Court decided that a white supremacist with a long criminal record should not be subject to the armed career-criminal mandatory minimum statute that enhanced his sentence from 10 years to 15 years.
Samuel Johnson pleaded guilty to being a felon in possession of a firearm. He told authorities he planned to attack “the Mexican consulate” in Minnesota and other “left” leaning targets. At his sentence hearing, a mandatory sentence was imposed based on his prior convictions for robbery, attempted robbery and possession of a “sawed-off” shotgun.
The late Justice Antonin Scalia wrote at the time that the Armed Career Criminal Act “fails to give ordinary people fair notice of the conduct it punishes [and] . . .  invites arbitrary enforcement.”  The court struck down the statute as unconstitutionally vague.
Since the ruling last June, appeals courts have been split over whether the decision should apply retroactively to all past cases where the statute was applied.
Now, less than a year later, the U.S. Supreme Court will answer that question.  
The new case is Welch v. United States; the court will hear arguments at the end of the month. The high court’s decision may lead to the release of thousands of prison inmates across the country.
In 2005, Gregory Welch was also found guilty of being a felon in possession a firearm, which would have netted him a sentence of 10 years or less. Welch ended up being sentenced to 15 years in prison because the judge found that he had three prior violent felony convictions; therefore, subject to the mandatory minimum sentencing requirements under the Armed Career Criminal Act.
After the court’s decision last summer, Welch sought to reopen his sentence without the aid of a lawyer. He represented himself in the lower courts and even in his initial filing asking the Supreme Court to hear his case.
What makes Welch’s case more compelling is that the Justice Department had originally opposed review by the Supreme Court. Now the Justice Department reversed course and that bodes well for Welch and other similarly situated offenders.
Another good sign for Welch is that in just the last few months the Supreme Court decided to apply retroactively a recent landmark decision.
In 2012, the U.S Supreme Court decided Miller v. Alabama banning the mandatory sentence of life without parole for juveniles.   
In January, the high court expanded the Miller decision, ruling it must be applied retroactively to an estimated 1,200 to 1,500 inmates concentrated in three states—Pennsylvania, Louisiana and Michigan.  
Why is the pending mandatory minimum case so important?
A court filing by a group of federal court and sentencing scholars sums up the gravity of this issue.
The scholars argued to the court, “The number of mandatory minimums has more than doubled since 1991, and excluding immigration offenses, the percentage of federal prisoners who are convicted under statutes carrying mandatory minimum penalties has increased from 27.8 percent in 1991 to 39.9 percent in 2010.”
The scholars further argue that an increasing percentage of federal prisoners are convicted of statutes with mandatory minimum penalties of 10 or more years.
Some suggest that mandatory minimum sentencing is responsible, in part, for the overcrowding of American prisons, which has been extremely costly for American taxpayers.    
The $6.9 billion budget for the Bureau of Prisons in fiscal year 2014 was 25 percent of the Justice Department’s discretionary spending, up from 18 percent in fiscal year 2010. The prison system has more employees than any other agency within the Justice Department—including the FBI.

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

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Oklahoma death row inmate dead, it is not what you think

This week, a man who was on death row for more than 32 years after being convicted in the 1983 strangulation death of a county jail inmate's life ended in the Oklahoma State Penitentiary in McAlester where so many of his fellow death row inmates were executed.

DOC public information officer Alex Gerszewski told the Tulsa World that Sammy Van Woudenberg, 65, died on March 5 of natural causes. That's right, natural causes, he wasn't executed although he sat on death row for 32 years.

Van Woudenberg was convicted of first-degree murder in the 1983 death of Mark Berry, who was 25 when he was strangled in the Muskogee County Jail in Oklahoma.

A roster of current death row inmates maintained by the DOC appears to indicate Van Woudenberg, at 32 years and 56 days, had been on death row the longest at the time he died.

Gerszewski said prison staff discovered he was dead while delivering his evening meal to his cell at the .

Tulsa World archives indicate Van Woudenberg had been found incompetent to be executed in 1994, and that he had been sent at that time to a unit for prisoners with special needs to receive psychiatric care. A judge said his death sentence could be carried out if his mental health improved, according to court documents.
So as it turns out, was Wouderberg's sentence really a life sentence--he spent his entire life after the crime in prison?  Was it a death sentence because he died in prison--like a lot of death row inmates or is every life sentence actually a death sentence because the lifer will--like death row inmates--ultimately die in prison?

To read more CLICK HERE

Texas executes man responsible for mass killing

The 8th Execution of 2016

More than 18 years after killing five people with five shots from a hunting rifle, Coy Wayne Wesbrook, 58, was executed on March 9, 2016, according to the Texas Tribune. At his trial, Wesbrook testified that he “lost it” when his ex-wife invited him to her  apartment and then had sex with two other men, according to court documents.

"I want to say that I am sorry for the pain that I have caused you people. I am sorry that I cannot bring everybody back. I wish it could be different," Wesbrook said before he was executed by lethal injection, according to the Texas Department of Criminal Justice

With no pending appeals, Wesbrook told an Associated Press reporter during a recent prison interview that he had “no doubt” he was going to be put to death.

"I'm sorry it happened," he told the AP. "But I'm not going to sit here and boo-hoo about it."

On the evening of Nov. 13, 1997, Wesbrook went to meet his ex-wife, Gloria Coons, at her apartment under the impression that she wanted to reconcile, according to his original testimony. Instead of finding her alone, though, Wesbrook walked in to find Coons drinking with her roommate, Ruth Money, and two male friends, Anthony Rogers and Kelly Hazlip.

Wesbrook said later in the night, conversation turned sexual, and Coons walked into the bedroom with Hazlip. Rogers soon followed, and when Coons came back out, she said she had performed oral sex on Rogers and was about to have sex with Hazlip.

“It awes me. It just flat – just flat awes me,” Wesbrook said during his trial in 1998. “I mean, I just couldn't get over what was going on in front of me.”

After attempting to leave and having his keys taken by another man who showed up later, Antonio Cruz, Wesbrook got his .36-caliber hunting rifle from the cab of his truck and walked back inside, he testified.

Within about 40 seconds, he fatally shot all five people in the apartment, according to court documents.

"You hear all your life if you catch your old lady in bed with somebody, don't just shoot her but shoot her lover too," Wesbrook told the AP. "In her case, there was a bunch of lovers. I just took care of my business.”
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Justices: Don't give up on life sentences for juveniles

In light of Montgomery v. Louisiana, the U.S. Supreme Court recently vacated and remanded a number of pending cases that were asserting that Miller v. Alabama--which banned mandatory life in prison sentences for juveniles--should be applied retroactive. Attached to each order is the following concurrence by Justices Clarence Thomas and Samuel Alito:

Justice Thomas, with whom Justice Alito joins, concurring in the decision to grant, vacate, and remand in this case: The Court has held the petition in this and many other cases pending the decision in Montgomery v. Louisiana, 577 U. S. ___ (2016). In holding this petition and now vacating and remanding the judgment below, the Court has not assessed whether petitioner’s asserted entitlement to retroactive relief “is properly presented in the case.” Id., at ___ (slip op., at 13). On remand, courts should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief. The Court’s disposition does not, for example, address whether an adequate and independent state ground bars relief, whether petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief), or whether petitioner’s sentence actually qualifies as a mandatory life without parole sentence.

The concurrence seems to be a warning to prosecutors not to capitulate on the issue of life without parole for juvenile offenders. According to Thomas and Alito there is more than one way to skin a cat. 

Virginia Senate votes to use electric chair in lieu of lethal injection

This week the Virginia state Senate approved a bill making the electric chair the default method of execution if lethal injection drugs are unavailable, reported Reuters.

The bill passed the Republican-controlled Senate by a 22-17 vote. The Republican-dominated House has already approved the measure.

After a lower chamber vote on a minor amendment, the measure will go to Democratic Governor Terry McAuliffe for approval. A spokesman for the governor said the measure would be reviewed when it arrived.

Virginia is one of eight states that allows electrocution as a method of execution, letting condemned inmates choose between it and lethal injection. If they do not choose, lethal injection is used.

Virginia, along with other states, has struggled to get lethal injection drugs because pharmaceutical companies have protested their use in executions.

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Judge thinks 3 and 4 year olds can represent themselves at immigration hearings

At age 3, most toddlers know how to play make-believe, turn the pages of a book, and spontaneously show affection for their friends. But can 3-year-olds possibly grasp the fundamentals of the American justice system and defend themselves in court?

Judge Jack Weil believes so, according to The Christian Science Monitor. The Virginia-based judge is a key witness supporting the US government’s position that unaccompanied migrant youths don’t need attorneys in immigration court, while immigration advocates argue otherwise.

"I've taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience," Judge Weil said. "They get it. It's not the most efficient, but it can be done." 

The deposition in which Weil says toddlers can defend themselves in court was submitted to the court by the federal government in January. The ACLU posted the transcript on last week.

“Are you aware of any experts in child psychology or comparable experts who agree with the assessment that 3- and 4-year-olds can be taught immigration law?" Ahilan Arulanantham, the deputy legal director of the ACLU of Southern California, asked Weil in the transcript.

"I haven't read any studies one way or another," Weil answered. “I have trained 3-year-olds and 4-year-olds in immigration law,” he later maintained. “You can do a fair hearing."

But even the federal government has questioned the credibility of Weil’s stance. Although the Justice Department is currently in the throes of the lawsuit, spokeswoman Lauren Alder Reid told the Los Angeles Times in a statement that the administration is actually in support of the Congressional legislation providing representation for youth migrants.

To read more CLICK HERE

Judge rules Alabama death penalty unconstitutional

A Jefferson County, Alabama judge ruled that Alabama's capital murder sentencing scheme, which allows judges to override jury recommendations of life without parole and instead impose the death penalty, is unconstitutional, reported The Birmingham News.

In making her ruling after a hearing, Jefferson County Circuit Judge Tracie Todd barred the death penalty in the cases of four men charged in three murders. "The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary," Todd said in reading her written ruling from the bench.

"As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner." The result of Todd's order is that the judge won't allow the death penalty to be imposed in the cases before her. But attorneys present at the hearing said it would be up to other judges whether to follow her example. But Todd said her ruling likely will be appealed by prosecutors. If an appellate court were to uphold her ruling, then it would become a precedent and apply to cases around the state, attorneys said.

"Judge Todd's ruling today is not a general pronouncement for the State of Alabama, but is strictly limited to the four cases upon which she ruled in the Jefferson County Circuit Court," Alabama Attorney General Luther Strange said Thursday afternoon. "Alabama's capital sentencing statutes are constitutional. Just yesterday the Alabama Supreme Court denied the appeal of a capital murder defendant who had filed a similar pre‑trial motion, and the Court refused to declare Alabama's capital statute's unconstitutional. We are currently reviewing the Judge's written order, and expect to file an appeal. We fully expect today's ruling by Judge Todd to be reversed."

Todd had heard arguments from lawyers for capital murder defendants Benjamin Acton, Terrell McMullin, Stanley Chatman, and Kenneth Billups. The judge barred the death penalty in their cases. "This is huge," Emory Anthony, attorney for Chatman, said of Todd's ruling. "I would hope that the other courts will go along with her decision."

Todd ruled that Alabama's the capital murder scheme is unconstitutional under 6th Amendment and barred from being imposed in the cases.

The death penalty in Alabama "is being imposed in a wholly and unconstitutional manner," Todd said.

Todd also said that Alabama leads the nation in which judges override juries recommendations for life with out parole in capital cases and instead impose the death penalty. "Alabama has become a clear outlier," she said.

"Jefferson County leads the state in total death sentences resulting from judicial overrides, with 17, according to the (Equal Justice Initiative) study, which looked at the sentencing since the U.S. Supreme Court allowed capital punishment to resume in 1976 after a four-year nationwide ban."

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Georgia executes sailor for 1992 killing of fellow sailor

The 7th Execution of 2016

Travis Hittson, a former Navy crewman was executed on February 17, 2016 in Georgia for killing a fellow sailor whose remains were found buried in two states. reported The Associated Press.

Hittson, 45, was declared dead at 8:14 p.m. by Warden Bruce Chatman after receiving an injection of the barbiturate pentobarbital at the state prison in Jackson. He was convicted in the April 1992 killing of Conway Utterbeck.

When Chatman asked if he wanted to make a final statement in front of witnesses, Hittson said, "No, sir. I'm alright." He then agreed to have a prayer read.

Georgia doesn't announce exactly when the lethal drugs begin flowing, and the injection isn't visible to observers. But the warden left the execution chamber at 8:04 p.m., and records from past executions show the lethal drug generally begins to flow within a minute or two of the warden's departure.

Hittson blinked repeatedly for several minutes and then appeared to take several deep breaths before becoming still about four minutes after the warden left the execution chamber.

Hittson's lawyers had said he was mistreated and neglected as a child and constantly craved the approval of others. That, they said, combined with alcoholism and relatively low intelligence, made it easy for his direct supervisor in the Navy, Edward Vollmer, to manipulate him into killing Utterbeck.

The State Board of Pardons and Paroles, which is the only entity in Georgia authorized to commute a death sentence, on Tuesday denied Hittson's request for clemency. The board didn't give a reason for the denial, which is standard.

Hittson's lawyers also contended in a court filing that his constitutional rights were violated during sentencing when a judge allowed a state psychologist who had examined Hittson to recount damaging statements Hittson had made about Utterbeck.

To read more CLICK HERE

GateHouse: Supreme Court scrutinizes judicial recusal

Matthew T. Mangino

GateHouse Media

March 4, 2016

On Feb. 29, the U.S. Supreme Court heard arguments in Williams v. Pennsylvania. The Williams case could set new standards for judicial recusals in courtrooms across the country. Convicted murderer Terrance Williams is challenging his death sentence because the district attorney whose office prosecuted his case, Ronald Castille, was chief justice when the Pennsylvania Supreme Court overturned his right to a new sentence hearing.
The issue has become so controversial, a group of former judges wrote a brief on behalf of Williams trying to persuade the U.S. Supreme Court that Castille crossed the line, wrote Tony Mauro of the National Law Journal.
Jeffrey Green, counsel of record on the judge’s brief, said the “distinguished former judges” behind the brief were adamant that “Appellate judges do not operate in silos, and the effect of a biased judge’s participation cannot be reduced to a ‘no harm, no foul’ determination based on vote distribution.” The Williams decision — by the Castille court — was unanimous.
Williams asked Castille to disqualify himself from hearing his appeal. Castille refused, telling the Philadelphia Inquirer before the U.S. Supreme Court argument, “In Pennsylvania, we leave it up to the judge’s personal conscience ... I’ve always been confident that I can be fair and impartial.”
The Pennsylvania Code of Judicial Conduct requires judges who “served in governmental employment, and in such capacity participated personally and substantially” in a case, to disqualify themselves. According to the National Law Journal, the code also requires disqualification in proceedings in which a judge “served as a lawyer in the matter in controversy” or in which the judge’s “impartiality might reasonably be questioned.”
Pennsylvania lawyer Lawrence Fox of Drinker Biddle & Reath told the The Legal Intelligencer in another judicial ethics case in Pennsylvania, “I believe avoiding the appearance of impropriety is as important as avoiding impropriety itself ... [w]e want the public to have confidence in the decisions of the courts.”
The Philadelphia DA’s office argued that Castille played only a fleeting part in Williams’ prosecution, limited to signing off on the decision to seek the death penalty. “His signature on that (capital case) memo, in January 1986, was his first, last and only contact with this case,” prosecutors said during oral argument before the U.S. Supreme Court.
A majority of U.S. Supreme Court justices voiced concern that Castille participated in the case. Justice Sonia Sotomayor said, “The judge here actually signed his name to the review of the facts and the decision to seek the death penalty.”
Justice Anthony Kennedy asked Stuart B. Lev, of the Philadelphia Public Defender’s office, “Well, what is the rule, then, that you’re formulating … [r]ecusal is required when, and fill in the blank?” Lev replied, “When the prosecutor has direct personal involvement in a substantial decision in the case, and the issue before the court reflects upon that decision.”
Justice Elena Kagan indicated Castille should have recused himself because he personally signed off on seeking the death penalty. “He made the most important decision that could be made in this case,” Kagan said.
Brianne J. Gorod, chief counsel of the Constitutional Accountability Center wrote, “By deciding to judge the conduct of his own office in a case in which he was personally involved, Castille created a judicial conflict so obvious and so extreme that it violated the Due Process Clause’s guarantee of an impartial justice system.”
Chief Justice John Roberts, suggested to the Philadelphia DA’s office, “I mean, if the individual who should have been recused occupied a dominant role in the discussion and was successful in persuading colleagues and all that — and of course, that’s the sort of evidence you certainly can’t have access to.”
A decision is expected this summer from the high 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 www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Trump: 'Lethal injection too comfortable'

Under President Donald Trump people will still be sentenced to die for capital offenses. In the America We Deserve, Trump had a lot to say about “criminals who pray on innocent people,” whom he also compared to Hitler, according to Thinkprogress:

"Would it have been civilized to put Hitler in prison? No-it would have been an affront to civilization. The same is true of criminals who prey on innocent people. They have declared war on civilization. I don’t care if the victim is a CEO or a floor sweeper. A life is a life, and if you criminally take an innocent life you’d better be prepared to forfeit your own. My only complaint is that lethal injection is too comfortable a way to go," Trump ranted.

While support for capital punishment has plummeted in recent years, Trump is still a staunch proponent of it. Back in December, he announced that anyone who kills a police officer will be sentenced to die. His statement earned an endorsement from the New England Police Benevolent Association, an officer union that boasts 5,000 members.

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Utah Senate votes to abolish the death sentence

The Utah Senate voted 20-9 on this week in favor of a Senate Bill 189 to repeal the death penalty, reported Jurist. The Death Penalty Amendments bill would reorganize murder and homicide statutes as non capital offenses and give the prosecutors until May to seek a notice of capital punishment for any pending case.

The legislation awaits final approval in the senate before heading to the House of Representatives. Utah is one of more than 30 states that retains the death penalty, and last year the state approved the use of death by firing squad as an alternative to lethal injection.

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Super Monday: Apple wins New York, now its off to California

Apple's showdown with the FBI over an alleged San Bernardino terrorist’s iPhone has been big news lately, but the company has also been involved in a similar and ongoing legal battle over a different iPhone in law enforcement’s custody in New York. This week, Judge James Orenstein ruled in favor of Apple, reported Wired.

While the case is distinct from the San Bernardino case, there are parallels. In the NY case, the government demanded that Apple disable the security lock on an iPhone 5s running iOS 7. In that case, as in San Bernardino, the government argued that the All Writs Act of 1789, a law that’s as broadly open to interpretation as its age might suggest, granted it the authority to make such a request.

Judge Orenstein, in this ruling, disagrees. Of the All Writs application, he writes that “the government posits a reading…so expansive—and in particular, in such tension with the doctrine of separation of powers—as to cast doubt on the AWA’s constitutionality if adopted.”

Noting that Apple has been ordered under the authority of the All Writs Act to bypass the security of not one but 12 total devices, Orenstein rejects the argument that the All Writs act can be used as a “gap filler” that allows law enforcement to plug in powers that Congress has not yet granted or explicitly denied.

“In particular, unlike the government, Apple contends that a court order that accomplishes something Congress has considered but declined to adopt—albeit without explicitly or implicitly prohibiting it—is not agreeable to the usages and principles of law,” writes Orenstein, in reference to Apple’s argument that the Obama administration and Congress had previously passed on the opportunity to create laws around encryption. It’s also another nudge to Congress that it may be time for those laws to exist.

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