Friday, September 30, 2016

DEA pays tens of millions of dollars to informants

The Drug Enforcement Administration paid its informants tens of millions of dollars even after at least one of them lied in court, reported McClatchy.
That’s according to a new report by the Justice Department inspector general, which scrutinized DEA offices across the country, including Sacramento. The inspector general’s auditors found that more than 9,000 law enforcement sources had been paid a total of $237 million for information or services.
Yet the DEA, which relies on such informants to investigate drug trafficking, did not “adequately” oversee the money flowing to its more than 18,000 sources between Oct. 2010 and Sept. 2015, Thursday’s report said.
The sloppiness “exposes the DEA to an unacceptably increased potential for fraud, waste and abuse, particularly given the frequency with which DEA offices use and pay confidential sources,” the inspector general’s office said.
The DEA, for instance, prohibits paying informants who were “deactivated” because of arrest warrants or other serious offenses, but auditors found one had been used after being deactivated for lying during trials and depositions. The source was paid more than $469,000 and used by 13 offices for five more years.
The inspector general’s office estimated the DEA may have paid about $9.4 million to more than 800 previously deactivated sources. The office, however, said it had received shoddy data, and it could not say definitively why they were deactivated.
The report comes after the drug case against the nephews of the Venezuelan first family looks more fragile after prosecutors’ key confidential sources appear to be tainted with credibility problems. The informants have acknowledged improper conduct while receiving money from the United States, including snorting cocaine and hiring prostitutes. It was unclear whether the DEA knew what its informants were doing.
DEA spokeswoman Barbara Carreno said in response to the inspector general’s report that her agency had revised its policies, adding “today’s report highlights the need for continued improvement.”
To read more CLICK HERE

Wednesday, September 28, 2016

FBI Crime Report: 2015 one of the safest years on record

The recently released FBI Crime Report for 2015 found that last year was one of the safest years on record, reported the Huffington Post.
The FBI found an increase of 3.1 percent from the 2014 violent crime rate estimate. But that year-over-year increase only tells part of the story. Looking at every year since 1996, the violent crime rate has only been lower in 2013 and 2014.
2015 was safer than any year during the presidencies of George W. Bush, Bill Clinton, George H.W. Bush or Ronald Reagan. Looking back at trends over the past five and 10 years, the total number of violent crimes in 2015 was 0.7 percent below the 2011 level and 16.5 percent below the 2006 level. Nevertheless, in a poll conducted earlier this year by The Huffington Post and YouGov, most Americans incorrectly believed that crime had risen overall in the past 10 years. 
John Pfaff, a law professor at Fordham University School of Law, said that even if the jump in the violent crime rate is similar to jumps seen in the 1990s, the actual effect of this one is much smaller.
“Crime was and remains quite low. Even in terms of worst case scenario with FBI numbers, things look similar to what they did four to five years ago,” Pfaff said. “At the time we celebrated those as being great.”
To read more CLICK HERE

Tuesday, September 27, 2016

Idaho sex offenders challenge registration and notification laws

More than 100 sex offenders are challenging Idaho’s laws that require registration and community notification of sex offenders, saying the laws violate an array of constitutional rights, from the prohibition on double jeopardy to freedom of religion, reported the Idaho Statesman.
Twin Falls lawyer Greg Fuller sued Thursday in Boise federal court on behalf of 104 unnamed sexual offenders, identified as John or Jane Does 1-104. The lawsuit seeks a permanent order to stop the state and its counties from enforcing some portions of the law.
Similar lawsuits have been filed in other states, including Nevada and Illinois.
Here is how the lawsuit says other constitutional guarantees are violated:
Due process: Idaho law is vague, and it reassesses offenders and subjects them to new restrictions without a hearing.
Equal protection: The laws are designed to burden an unpopular group.
Religious freedom: Some churches and other places of worship fall within the places certain sex offenders cannot be, thereby interfering with offenders’ rights to practice religion.
Cruel and unusual punishment: The laws impose excessive punishment, community-notification requirements that can subject sex offenders to violence at the hands of vigilantes.
Double jeopardy: The laws impose new punishments on sex offenders previously convicted based on the crime originally committed.
Contracts: The laws impose new non-negotiated terms on previously negotiated plea agreements.
Takings: The laws place residential and movement restrictions on sex offenders, restricting property rights.
Separation of powers: The laws vacate earlier court judgments setting sex offenders’ classifications, community-notification requirements and length of times sex offenders must register.
The 73-page complaint names more than 35 defendants, including Idaho Attorney General Lawrence Warden, Idaho Department of Correction Director Kevin Kempf, Idaho State Police Director Col. Ralph Powell, and the sheriffs of the 21 counties where the plaintiffs reside.
To read more CLICK HERE

Monday, September 26, 2016

Rise in big city crime may have impact on presidential debate

Violent crime in certain big U.S. cities in 2015 likely increased over 2014, although the overall crime rate has remained far below peak levels of the early 1990s, experts said, in advance of the FBI's annual crime report, reported Reuters.
The Federal Bureau of Investigation's report was expected to show a one-year increase in homicides and other violent crimes in cities including Chicago, Baltimore and Washington, D.C., based on already published crime statistics.
Coming on the day of the first presidential campaign debate between Republican Donald Trump and Democrat Hillary Clinton, the report could "be turned into political football," said Robert Smith, a research fellow at Harvard Law School, in a teleconference on Friday with other crime experts.
A rise in violent crime in U.S. cities since 2014 has already been revealed in preliminary 2015 figures released by the FBI in January.
A recent U.S. Justice Department-funded study examined the nation's 56 largest cities and found 16.8 percent more murders last year over 2014.
To read more CLICK HERE

Sunday, September 25, 2016

Prisons are not filled with non-violent drug offenders

Oregon district attorney Josh Marquis wrote an interesting piece on prison population for

One of the urban legends accepted by conservatives and liberals alike is the claim that mass incarceration is out of control, that America has become a virtual prison state filled with inmates serving time for nonviolent crimes. In the primary races for president, everyone from Carly Fiorina and Rand Paul to Bernie Sanders and Hillary Clinton decried the number of inmates in prison serving time for victimless drug offenses and harmless property crimes.
As the media are finally figuring out, our prisons are not filled with pot smokers.
The U.S. Justice Department found that only 3.6 percent of state inmates were sentenced for drug possession. When it came to marijuana, the number plummeted to three-tenths of 1 percent.
Yet the falsehood lives on because it’s politically convenient. Likewise the myth of nonviolent property crimes. Barely 25 percent of inmates are in prison for property crimes.
Prosecutors come face-to-face with the victims of these supposedly harmless crimes. If you think drug dealing is a victimless crime, you’ve never talked to parents trying to keep their children away from drug dealers. You’ve never seen someone whose life has been ruined by meth or heroin addiction. There’s nothing nonviolent about it.
And if you think breaking into someone’s home and destroying their sense of safety is no big deal, then you can probably afford private security.
The politically inconvenient fact is that the majority of inmates in our prisons are guilty of violent offenses. Do we now let them out so Republicans and Democrats who don’t live in high-crime neighborhoods can feel good about themselves?
We tried this in the 1970s, when the media was filled with optimistic stories of various social programs to rehabilitate violent criminals. The result? By the 1980s, crime was the No. 1 concern of many Americans.
What do we do about them? Require them to serve their sentences. Accountability and truth in sentencing are not political gimmicks. In the long run it will be cheaper. We will have fewer victims, and more criminals will focus on true change instead of trying to game the system.If you want to see what can happen if we let violent offenders out, consider what the Los Angeles Times found in 2006 when it looked at results of releasing jail inmates early because of jail closures: “Rearrests for violent and life-threatening crimes soared from 74 before the jail closures to more than 4,000.” What the Times story didn’t address, but prosecutors know, is that most victims of violent crime are poor and minority. These victims are invisible to even the most liberal politicians. This is the real reason for the bipartisan push to empty our prisons and save money. It is the poor whose safety will be sacrificed.
It has become a cliché that America incarcerates more people than any other nation. If America were a prison state, immigrants would not want to move here. They come here because of our freedoms and our justice system. In America, we attempt to control violent people who use their freedom to hurt others.

To read more essays CLICK HERE

Saturday, September 24, 2016

Missouri city to require written consent to search a vehicle

Columbia, Missouri police officers will soon need your written permission to search your car if they don't have a warrant or probable cause, reported the Missourian.
A new department policy will require police officers to fill out a consent-to-search form and ask the driver to sign it. If the driver declines to consent, that will be noted on the form and the officer will need to request a warrant from the court.
Current policy allows officers to search vehicles with the driver's verbal permission. Otherwise they need probable cause or a warrant signed by a judge.
Saying implementation of the new policy isn't quite complete, Columbia Police Chief Ken Burton declined to talk about the change.
Officers who say they have received consent to search are often contradicted by defendants, said David Tyson Smith, a lawyer at Smith and Parnell LLC. He said the new policy will be “good for the citizens.”
Smith declined to speak about specific cases, citing his clients’ privacy, but he said he has handled cases where consent was called into question. Videotape is not always helpful, Smith said, due to occasional audio issues or poor camera angles.
The new policy should also help the police force verify that consent was given, Smith said.

To read more CLICK HERE

Friday, September 23, 2016

GateHouse: Gun owners down, gun purchases up

Matthew T. Mangino
GateHouse Media
September 23, 2016

Gun enthusiast will argue that guns are not just for killing. They can be collected, used for target practice, hunting and self-defense — although the latter two may include killing as well. However, all can agree that guns make killing easy. In fact, killing is so easy with a gun it is the weapon of choice for criminals and killers.
Where do criminals get guns?
Privately owned firearms are stolen in America between 300,000 and 600,000 times per year, according to researchers at Harvard and Northeastern universities, reported The Guardian. On the high end, that is more than 1,600 guns stolen every day, more than one every minute.
When a gun is stolen from a car, truck or home, it doesn’t just disappear. According to a 2012 Bureau of Alcohol, Tobacco, Firearms and Explosives report, Firearms Reported Lost or Stolen, lost and stolen guns posed a “substantial threat” to public safety and to law enforcement. The report suggested, “Those that steal firearms commit violent crimes with stolen guns, transfer stolen firearms to others who commit crimes, and create an unregulated secondary market for firearms.”
Americans own an estimated 265 million guns, more than one gun for every American adult. The new Harvard and Northeastern universities’ survey estimates that 133 million of these guns are concentrated in the hands of just 3 percent of American adults — a group of super-owners, reported The Trace.
The survey also found a sharp cultural shift in American gun ownership. Twenty years ago, the primary reason people listed for keeping a gun at home was recreation. Today, the primary purpose for ownership is protection.
“When I look at our survey, what I see is a population that is living in fear,” Deb Azrael, a researcher at the Harvard School of Public Health and one of the lead authors of the study, told the Washington Post. “They are buying handguns to protect themselves against bad guys, they store their guns ready-to-use because of bad guys, and they believe that their guns make them safer.”
Interestingly, surveys of gun ownership in America continue to find the percentage of Americans who own guns decreasing, even as Americans buy more guns. The downward trend in gun ownership is consistent across national polls.
The percentage of American households owning guns is at a near 40-year low in the latest CBS News poll released this summer, even though gun purchases are at historic highs. According to CBS, their survey included 1,001 Americans in the aftermath of the Orlando nightclub shooting, 36 percent of U.S. adults either own a firearm personally or live with someone who does. That’s the lowest rate of gun ownership in CBS polls going back to 1978.
So how do you keep guns out of the hands of criminals amid this odd phenomenon of gun ownership? GOP presidential candidate Donald Trump has an idea. He has proposed a nationwide stop-and-frisk policy, reported Time Magazine.
At a town hall meeting this week, Trump said the policy “worked incredibly well” in New York City, arguing that it is “proactive” and should be expanded across the country.
Stop-and-frisk is a controversial program that allows police to stop a person on the street based on suspicion of criminal activity and to frisk the person in search of a weapon. Several years ago, The New York Times reported, that federal Judge Shira A. Scheindlin wrote in an opinion calling for the end of stop-and-frisk in New York City that it had led police officers to stop “blacks and Hispanics who would not have been stopped if they were white.”
Not to mention that Trump’s “initiative” is normally a local issue implemented by municipal or state authorities. It is doubtful that a president could impose a nationwide stop-and-frisk initiative, nor should he or she advocate for such a policy.

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

To visit the column CLICK HERE

Thursday, September 22, 2016

Trump proposes nationwide implementation of controversial 'stop and frisk' policy

Republican presidential nominee Donald Trump proposed a nationwide stop-and-frisk policy, when asked how he would prevent violence in black communities as president, reported Time.
Trump, who has previously spoken out in favor of the policy, made the comments during the taping of a Fox News town hall on Wednesday, the Associated Press reported.
Stop-and-frisk, a controversial program that allows police to stop a person on the street based on suspicion of criminal activity, was expanded in New York City under Mayor Michael Bloomberg until a federal judge ruled in 2013 that it was unconstitutional and racially discriminatory. It has since been scaled back.
While city officials had argued the program was an effective crime-fighting measure, Judge Shira A. Scheindlin wrote in her decision that it had led police officers to stop “blacks and Hispanics who would not have been stopped if they were white,” the New York Times reported.
But at Wednesday’s town hall, Trump said the program “worked incredibly well” in New York City, arguing that it is “proactive” and should be expanded across the country.
The other problem for Trump is that a initiative like "stop-and-frisk" is locally implemented by municipal or state authorities.  It is doubtful that a president could impose a nationwide stop-and-frisk initiative. 
To read more CLICK HERE

Wednesday, September 21, 2016

Chicago is the blame for the nationwide uptick in crime?

The Brennan Center anticipates that the national murder rate will rise 13.1 percent in 2016 over 2015.
But, according to the Washington Post, there is a catch? Crime overall will remain flat. And half of the increase this year, the Center's analysis suggests, will be due to the spike in Chicago alone. Half of the 31.5 percent increase in murders between 2014 and 2016 is solely a function of increases in Chicago, Baltimore and Washington.
The report updates preliminary analysis from the Center earlier this year with new data. At that point, the Center's analysis suggested that "while Americans in urban areas have experienced more murders this year than last year, they are safer than they were five years ago and much safer than they were 25 years ago." The new numbers don't change that core finding. "These findings undercut media reports referring to crime as 'out of control,'" the new report reads, "or heralding a new nationwide crime wave. But the data do call attention to specific cities, especially Chicago, and an urgent need to address violence there."
Particularly relative to the long-term trend the Brennan Center demonstrated only a subtle change in the national crime rate, anticipating a 1.3 percent increase this year.
To read more CLICK HERE

Tuesday, September 20, 2016

The Vindicator: Selecting a jury for the trial of Robert Seman is crucial

Matthew T. Mangino
The Youngstown Vindicator
September 19, 2016
The composition of a jury in a criminal trial is extremely important. In fact, there is an old joke among lawyers about the difference between jury trials in Great Britain versus the United States. In Britain, the trial starts once the jury selection ends – in America, the trial is already over.
That process is playing out in Mahoning County. Common Pleas Judge Maureen Sweeney is presiding over jury selection for Robert Seman. Seman is accused of setting a house fire that killed 10-year-old Corinne Gump and her grandparents in 2015. The fire occurred the morning that Seman was to face trial for sexually assaulting Gump.
A case can turn on the composition of a jury. As a result, the process can be time-consuming and tedious. The selection of a capital jury, one that will be asked to impose the death penalty, is jury selection on steroids.
The most dramatic difference between a regular jury and a capital jury is that each juror in a capital case must be “death qualified.” A capital juror may not be categorically opposed to the death penalty, but at the same time the juror may not be of the opinion that a first-degree murder conviction must result in the death penalty.
Last week, 19 jurors out of a pool of 160 were told to report to the court. Each of those jurors had completed a questionnaire that inquired into the potential juror’s background as well as their beliefs, relationships and opinions on various aspects of the criminal justice system.
As those jurors appear in court they are subject to individual voir dire, or in layman’s terms, individual questioning. The purpose of examining individual jurors is to reveal any potential bias.
Subjects for inquiry include: Has the juror ever been the victim of a crime? Does the juror have a family member in prison or is she related to someone in law enforcement?
Long before jury selection begins in a capital case, the attorneys involved know what they’re looking for in a juror – young or old; educated or uneducated; professional or blue collar; even whether the jury panel should be dominated by men or woman.
When there are resources available prosecutors or defense attorneys may employ the services of a jury consultant. A jury consultant can assist counsel in selecting a jury. Through focus groups and research a jury consultant will develop a profile for potential jurors.
During Seman’s jury- selection process, counsel on both sides will whittle down the number of potential jurors through a series of challenges. The first is a preemptory challenge. In Ohio each side in a capital case has six chances to remove a potential juror for any reason other than race, which is not an issue in this case.
The second type of challenge is for “cause.” If counsel can articulate a reason why a juror should be removed from the panel the judge will decide whether or not to excuse the juror. For instance, a juror tells the attorneys and judge that she has made up her mind about guilt based the news accounts that she has read or heard. The court will excuse the juror for cause without counsel having to use a preemptory challenge.
The more jurors who have been tainted by the media leads to a different problem – can a fair and impartial jury be empaneled in Mahoning County? It is not a question of whether a juror has heard about a high profile case like Seman’s, but whether a juror can set aside what they have heard and still be fair and impartial.
Judge Sweeney ruled against the defense’s request for a change of venue. The defense wanted the judge to bring a jury in from another county or have the court move the trial. Sweeney said the request to move the trial was “premature.”
However, as jury selection continues, and if it becomes increasingly difficult to seat jurors, the judge could reconsider the request.

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

Visit the The Vindicator

Monday, September 19, 2016

Amid opioid addiction crisis, drugmakers protect aggressive prescribing

The makers of prescription painkillers have adopted a 50-state strategy that includes hundreds of lobbyists and millions in campaign contributions to help kill or weaken measures aimed at stemming the tide of prescription opioids, the drugs at the heart of a crisis that has cost 165,000 Americans their lives and pushed countless more to crippling addiction.
The drugmakers vow they’re combating the addiction epidemic, but The Associated Press and the Center for Public Integrity found that they often employ a statehouse playbook of delay and defend that includes funding advocacy groups that use the veneer of independence to fight limits on the drugs, such as OxyContin, Vicodin and fentanyl, the narcotic linked to Prince’s death.
The pharmaceutical companies and allied groups have a number of legislative interests in addition to opioids that account for a portion of their political activity, but their steady presence in state capitals means they’re poised to jump in quickly on any debate that affects them.
Collectively, the AP and the Center for Public Integrity found, the drugmakers and allied advocacy groups employed an annual average of 1,350 lobbyists in legislative hubs from 2006 through 2015, when opioids’ addictive nature came under increasing scrutiny.
“The opioid lobby has been doing everything it can to preserve the status quo of aggressive prescribing,” said Dr. Andrew Kolodny, founder of Physicians for Responsible Opioid Prescribing and an outspoken advocate for opioid reform. “They are reaping enormous profits from aggressive prescribing.”
To read more CLICK HERE

Sunday, September 18, 2016

PLW: Pa. Supreme Court Further Restricts Sex Offender Registry

Matthew T. Mangino
The Pennsylvania Law Weekly
September 16, 2016

The remains of Jacob Wetterling, abducted from a rural road in Minnesota 27 years ago, were found this month.
The abduction of the 11-year-old boy led to the 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which required states to maintain sex offender registries and establish guidelines for the registries.
In October 1989, Wetterling was bicycling with his brother and a friend to a store near St. Joseph, Minnesota. During the ride, an armed man wearing a nylon mask abducted Wetterling. Investigators later learned that halfway houses in St. Joseph housed sex offenders after their release from prison. The Jacob Wetterling Act required states, including Pennsylvania, to establish stringent registration programs for sex offenders—including lifetime registration for certain offenders. The registration of sex offenders in Pennsylvania, known as Megan's Law, has had a tumultuous existence, including a number of revisions to comply with several successful challenges before the Pennsylvania Supreme Court.
Last month, the state's high court further refined the state's sex offender registry. The Supreme Court made a ruling that will have an impact on determining which sex offenders will be considered lifetime registrants. The court narrowed the ability of the authorities to designate an offender as a lifetime registrant as the result of being convicted of multiple sex offenses in a single incident.
The history of Megan's Law is long and at times confusing. In 1995, Gov. Tom Ridge signed into law what has commonly been referred to as Megan's Law. Following its enactment there were several amendments to the law as a result of court decisions.
About a decade later, Gov. Ed Rendell signed into law Senate Bill No. 92, making significant changes to Megan's Law. Most notably, information on all registered sexual offenders would now be available to the public through the internet. Then in 2012, Gov. Tom Corbett signed into law Senate Bill No. 1183. The law also known as the "Adam Walsh Bill," brought the state into compliance with The Adam Walsh Child Protection and Safety Act. Pennsylvania joined a coordinated and comprehensive national sex offender registry.
Under the new law—known as the Sex Offender Registration and Notification Act (SORNA)—registrants will be placed in one of three tiers based on their underlying offenses.
• Tier I. Registration for 15 years with required annual in-person reporting to the Pennsylvania state police and updated photograph.
• Tier II. Registration for 25 years with semiannual reporting requirements.
• Tier III. Registration for life with in-person reporting every three months.
There is a mandatory minimum sentence of two or three years in prison for the first failure to report and a five-year prison sentence for the first failure to provide accurate information to the state police.
The law also required that two or more convictions of Tier I offense would bump the offender to Tier III or lifetime registration.
The Supreme Court's decision last month will have a significant impact on which tier a sex offender will be assigned. The decision will also impact how prosecutors approach plea negotiating with sex offenders and the way defense attorneys explain to their clients the collateral consequence of a conviction.
In A.S. v. Pennsylvania State Police ___ A.3d ___ (Pa. 2016), the Pennsylvania Supreme Court in an opinion written by Justice Kevin M. Dougherty held that "the statute SORNA 42 Pa.C.S. Section 9799.10-9799.41 requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a 10-year period of registration."
Prior to the decision, the state police considered multiple Tier I convictions, even if growing out of the same incident, as two or more convictions and therefore triggering lifetime registration under the act.
The A.S. decision grew out of the case of a 21-year-old Montgomery County man who was convicted of persuading his 16-year-old girlfriend to take and send photographs of herself, which were sexually explicit. He was arrested in 2000 when her father found the photographs. After pleading guilty to seven child pornography counts, he was sentenced to five months to 23 months in the county jail, plus five years of probation.
At A.S.'s sentencing in 2002, everyone including the judge believed A.S. was subject to a 10-year registration period, not lifetime registration. According to the court's opinion, A.S.'s mother testified, "My son made a mistake, a terrible, terrible error in his life that's affected him. He's been punished. He will be punished. He has a 10-year reporting component to this punishment," to which the trial court replied, "I know." The prosecutor confirmed, "He's now facing a 10-year registration for Megan's Law. That's true."
After A.S. was released from jail, he registered as a sex offender with the state police. He then successfully completed all aspects of his criminal sentence and complied with all aspects of his reporting obligation.
After 10 years had passed, A.S. contacted the state police and requested removal of his name from the registry. The state police refused, claiming his guilty plea to sexual abuse of children and unlawful contact with a minor triggered lifetime registration under Section 9795.1(b) (1). A.S. filed a mandamus action with the Commonwealth Court.
The Commonwealth Court agreed with A.S. The Supreme Court agreed to hear the case when the state police appealed.
The Supreme Court majority included Chief Justice Thomas G. Saylor and Justices Kevin M. Dougherty, Max Baer and Christine Donohue. Justices Debra McClosky Todd and David N. Wecht dissented.
The decision means sex offenders convicted of Tier I offenses including luring a child into a vehicle, institutional sexual assault, indecent assault, corruption of minors and possessing child pornography will not be required to register for life on their first offense, regardless of the number of offenses that grew out of a single incident.
The court's decision requires that a one-time offender must become a recidivist to qualify for lifetime registration.
Dauphin County District Attorney Ed Marsico told the Harrisburg Patriot-News that the decision likely will have an impact on plea negotiations in certain sex-crime cases. The difference in registration requirements—some offenses carry registration terms as low as 15 years—can prompt a defendant to plead guilty to a lesser sex crime to avoid the lifetime registration.
"The biggest impact will be with plea negotiations," Marsico said. "These registration requirements are often at issue."
On the other hand, defense attorneys often find it challenging to provide their clients with advice on the collateral consequences of a conviction. Whether it's the length of a driver's license suspension, the disqualification of a professional license or, as with sex offenders, the level of registration, fully appreciating the collateral consequences of a conviction can be daunting.
Often the distinction is based on whether the consequences are civil or criminal. The decision with regard to sex offender registration got a little murky after the A.S. decision.
The Supreme Court has held the registration provisions are not punitive for purposes of constitutional challenges. However, the high court acknowledged in A.S., "Whether the statute is deemed a penal one subject to the rule of lenity and strict construction or not ... the fact is that interpretations—and predictions—of the statute's effect have to be made by different persons and entities at different times: prosecutors in charging decisions, defense counsel in rendering advice, defendants in determining courses of action, trial judges in imposing sentence, courts on appeal, PSP in enforcement, and then the defense, prosecution and courts repeated again if the defendant is charged with violating his or her registration obligation."
"Given the obvious burden of registration and the potentially serious criminal consequences of a lapse ... to state the law is not 'penal' is little answer to a defendant who had good reason to believe he had done all required of him, only to find himself staring at lifetime registration," wrote Dougherty.
An offender must have a chance to rehabilitate before being penalized with a second offense, the high court found.
"We do not dispute the commonwealth's argument that each image of child pornography possessed represents a separate, independent crime," Dougherty wrote.
However, Dougherty said, clear and simple, "the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses."

Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. 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, September 17, 2016

GateHouse: The vagaries of political corruption

Matthew T. Mangino
GateHouse Media
September 16, 2016
Corruption has been around as long as people have sought to govern themselves. Today, has genuine corruption been clouded by an overzealous, and often misguided, effort to redefine wrong doing?
The U.S. Justice Department decided last week to drop all charges against former Virginia governor Bob McDonnell following a U.S. Supreme Court ruling in June that vacated his original corruption conviction.
McDonnell’s case stemmed from more than $175,000 in loans and gifts — a Rolex watch, vacations, partial payments for a daughter’s wedding reception among them — that the governor and his family received from a Richmond businessman.
The gifts were not barred by Virginia law, reported the Washington Post. But federal prosecutors said the businessman’s generosity was part of an illegal quid pro quo arrangement.
“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” Chief Justice John Roberts wrote. “It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.”
For federal prosecutors, the decision will likely make it more difficult to use federal bribery, extortion and fraud statutes against public officials.
In October, the U.S. Supreme Court’s first case of the new term also deals with political corruption, but this time in a different context.
In 2005, Puerto Rico Sen. Hector Martínez–Maldonado supported legislation that benefited Ranger American, a security company owned by Juan Bravo-Fernandez. As the bill progressed through the commonwealth’s Legislative Assembly, Bravo-Fernandez treated the senator to a lavish Las Vegas weekend, including hotel, meals, and a $1,000 ticket to a boxing title bout. Shortly after the trip, the bill passed.
Federal authorities indicted the men for allegedly conspiring to give and accept a bribe in connection with a federal program, traveling across state lines to do so, and exchanging the bribe itself.
According to Garrett Epps’ article in The Atlantic, Martínez–Maldonado and Bravo-Fernandez were acquitted of conspiring to exchange a bribe, and travelling to exchange a bribe. Now, the government wants to try them for actually exchanging the bribe. The men have invoked the double jeopardy clause of the Fifth Amendment to the U.S Constitution.
Epps quoted Randall Eliason of American University “broad statutes prohibit things like fraud or corruption, and prosecutors are entrusted to exercise their discretion to determine how to apply those laws.” Eliason continued, “(I)n a series of decisions over the past few years, the Supreme Court has signaled it is becoming increasingly uncomfortable with such a system.”
On a state level the same argument rages on. Michael Veon, a former Democratic leader in the Pennsylvania House of Representatives, was convicted in 2012 on a number of charges, including conflict of interest.
Although Veon spent five years in prison he is in a battle to clear his name. In May, his appeal was heard by the Pennsylvania Supreme Court.
The justices questioned prosecutors’ interpretation of the conflict-of-interest statute, taking on the “frightening” effect Veon’s conviction could have on public officials around the state, reported The Legal Intelligencer.
Veon’s lawyer argued that the statute’s definition of “private pecuniary gain” was vague and overbroad, “Give a prosecutor that opportunity and they will find private pecuniary gain in any action they want to.”
Pennsylvania Supreme Court Justice David N. Wecht expressed concern that allowing a jury to convict a politician for gaining intangible benefits could subject any lawmaker to such a charge, reported The Legal Intelligencer.
“It sounds a lot like criminalizing politics,” Wecht said.
These cases point to the growing concern that politicians are easy and attractive targets for prosecutors and lawmakers alike. Elected officials on all levels are held in low esteem. Therefore, it comes as no surprise when lawmakers create a form of “legislative cannibalism” by enacting vague and overly broad criminal laws and ethical guidelines.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him and follow him on Twitter at @MatthewTMangino.
To visit the column CLICK HERE

Friday, September 16, 2016

"Drug free zones" a glimpse into the problems with the criminal justice system

The idea behind the “drug-free school zones” was to deter dealers at the height of a national crack cocaine epidemic from peddling drugs to children where they could be found most days, reported Stateline.
Now those laws are undergoing new scrutiny, as states revisit long sentences for drug crimes that have led to mass incarceration and as they face a new drug epidemic, this time opioid addiction.
Some states, including Delaware, Indiana, Kentucky and Utah, are reducing the size of the drug-free zones as they seek to rid their prisons of so many nonviolent drug offenders with long sentences and as research indicates the zones sometimes fail to steer dealers away from schools.
But other states, such as Arkansas, Hawaii and Texas, are expanding the zones in response to the opioid crisis. They’re adding playgrounds, parks and other areas where children play and imposing heavy penalties for people caught with drugs there, sometimes even for small amounts.
The seemingly contradictory directions states are taking on drug-free zones points to the practical and political difficulties states are having. 
The question is what works?
States should be unified in what works and what doesn't.  There is enough research out there to make educated and informed decisions on criminal justice matter as important as sentence enhancements. Yet, states are going in different directions.  Do drug-free zones work in Hawaii and not in Utah?  
That seems silly.  But, maybe being tough on drugs works in Hawaii right know, but not in Utah.  That is more likely and no reason to enact legislation.
To read more CLICK HERE

Thursday, September 15, 2016

Report: Juvenile life without parole on the decline

A new report from the Campaign for Fair Sentencing of Youth  has found in just five years—from 2011 to 2016—the number of states that ban death-in-prison sentences for children has more than tripled. In 2011, only five states did not permit children to be sentenced to life without parole.
Remarkably, between 2013 and 2016, three states per year have eliminated life without-parole as a sentencing option for children. Seventeen states now ban the sentence. This rapid rate of change, with twelve states prohibiting the penalty in the last four years alone, represents a dramatic policy shift, and has been propelled in part by a growing understanding of children’s unique capacity for positive change.
Several decades of scientific research into the adolescent brain and behavioral development have explained what every parent and grandparent already know—that a child’s neurological and decision-making capacity is not the same as those of an adult.
Currently, Nevada, Utah, Montana, Wyoming, Colorado, South Dakota, Kansas, Kentucky, Iowa, Texas, West Virginia, Vermont, Alaska, Hawaii, Delaware, Connecticut, and Massachusetts all ban life without parole sentences for children.
Additionally California, Florida, New York, New Jersey, and the District of Columbia ban life without parole for children in nearly all cases.
It is also important to note that three additional states—Maine, New Mexico, and Rhode Island— have never imposed a life-without-parole sentence on a child. Several other states have not imposed the sentence on a child in the past five years, as states have moved away from this inappropriate sentence both in law and in practice.
To read the Report CLICK HERE

Wednesday, September 14, 2016

First case for SCOTUS this fall: The Fifth Amendment's double jeopardy clause

The first case of the Supreme Court’s new term, which begins next month is Bravo-Fernandez v. United States.  According to Garrett Epps in The Atlantic, the case asks this question: when a defendant is validly acquitted for a crime that involves another crime, under what circumstances can the government retry for the underlying crime? Thus invoking the double jeopardy clause of the Fifth Amendment to the U.S Constitution.
To put it more precisely, if a jury decides that two men didn’t conspire to exchange a bribe, and didn’t travel to exchange a bribe, when can the government later try them for actually exchanging the bribe? In double jeopardy law, the issue is whether the bribe itself is an “ultimate fact” that was clearly decided by the jury; if it is, then there can’t be a second trial.  
In 2005, Puerto Rico Sen. Hector Martínez–Maldonado supported legislation that benefited Ranger American, a security company owned by Juan Bravo-Fernandez. As the bill progressed through the commonwealth’s Legislative Assembly, Bravo-Fernandez treated the senator to a lavish Las Vegas weekend, including hotel, meals, and a $1,000 ticket to a WBC Middleweight title bout. (For those scoring at home, Winky Wright edged out Puerto Rican hero Tito Trinidad.) Shortly after the trip, the bill passed. Federal authorities indicted the pair for allegedly conspiring to give and accept a bribe in connection with a federal program, traveling across state lines to do so, and exchanging the bribe itself.
In white-collar crime law, Randall Eliason of American University recently explained, “broad statutes prohibit things like fraud or corruption, and prosecutors are entrusted to exercise their discretion to determine how to apply those laws.” Eliason notes, however, that “in a series of decisions over the past few years, the Supreme Court has signaled it is becoming increasingly uncomfortable with such a system.”
To read more CLICK HERE

Tuesday, September 13, 2016

The economic toll of incarceration in the U.S. exceeds $1 trillion

The economic toll of incarceration in the U.S. exceeds $1 trillion, and more than half of that falls on the families and communities of the people incarcerated, says a recent study by Washington University researchers, the reported  St. Louis Post-Dispatch. “For every dollar in corrections spending, there’s another 10 dollars of other types of costs to families, children and communities that nobody sees because it doesn’t end up on a state budget,” said Michael McLaughlin, the doctoral student and certified public accountant who led the study. “Incarceration doesn’t happen in a vacuum.” The study’s authors claim to be the first to assign a dollar amount to the societal costs of incarceration, not just the governmental costs of running corrections systems, which is estimated at $80 billion annually. That number “considerably underestimates the true cost of incarceration by ignoring important social costs,” the researchers wrote.
 Some costs of incarceration include the wages people no longer earn while imprisoned — $70.5 billion — and the amount of lifetime earnings they will likely lose out on — $230 billion — after they get out because of employment restrictions and discrimination against the formerly incarcerated, the study says. The formerly incarcerated have a mortality rate that is 3.5 times higher than people who were not incarcerated, and researchers estimated the cost of their shortened lives to be $62.6 billion. As for the communities where incarcerated people live, the researchers believe the biggest cost — $285.8 billion — is the criminogenic effect of prison, or the theory that prison reinforces criminal behavior.
To read more CLICK HERE

Monday, September 12, 2016

Religion and the death penalty

Only 23% of practicing Christians born after 1980 back the penalty

American Christians have very confused feelings about the death penalty, reported the Economist. Last year, Pew Research, a pollster based in Washington, DC, published evidence confirming some things you would intuitively expect: white evangelicals support the ultimate punishment by a far greater majority (71-25) than do Americans in general (56-38) or the religiously unaffiliated (48-45). Although their church (at least in the modern era) firmly opposes execution, the procedure was supported by most Catholics (53-42) and an even greater majority of white Catholics (63-34).
In 2014, a survey by Barna research, a smaller pollster focusing on religious trends, found that self-identified Christians were slightly more likely than Americans as a whole to believe that the ultimate penalty should be available to the government in extreme cases. But younger American Christians, whether practicing or nominal, seemed much less keen than their parents on execution. Only 23% of practicing Christians born after 1980 backed the penalty.
And regardless of their own beliefs, Christian respondents seemed convinced that the founder of their faith was an opponent of punishing people with death: only one in 20 says Jesus of Nazareth would be a supporter of judicial killing. All that suggests that there must be a lot of Christians who believe in the death penalty themselves but accept that Jesus Christ, who after all suffered that penalty himself, would be on the other side of the argument. Perhaps that’s not so surprising. Some would say it’s part of human nature to subscribe, at one level, to the loftiest ideals and at the same time, make massive compromises with life’s harsh realities.
To read more CLICK HERE

Sunday, September 11, 2016

Mangino appears in two segments of WFMJ-TV Weekend Today

The first segment addressed jury selection for the Robert Seman trial in Mahoning County, Ohio. 

To watch the interview CLICK HERE

The second segment addressed the denial of a new trial for Jordan Brown in Lawrence County, Pennsylvania.

To watch the interview CLICK HERE

9-11 Remembered

Fifteen years have passed since the horrendous attack on the United States. Gov. George Pataki was in his second of three terms as governor of New York on September 11, 2001. Pataki, now 71, said 9/11 feels “like it was yesterday.” But it is the heroism he witnessed, and not the horror, that has stayed with him.
“I will always remember that bright clear morning, the friends that I lost and the people not running away from the towers, but rushing toward them to help,” Pataki recalled. “And I'll always remember the people standing in line to give blood, waiting hoping for the injured and wounded who would never come that day.”
The former governor  said 9/11 proved that America must stand strong against all those who would do her harm. “Whether it's Al Qaeda, ISIS or any other radical Islamic terrorist group, we must remain committed to denying them safe haven both on land and online,” he said. “We must not allow them a base of operations to train, recruit and organize attacks against Americans at home or abroad.

Fox news, September 11, 2016

Saturday, September 10, 2016

Mangino talks jury selection on WKBN-TV

Watch my interview on jury selection for accused killer Robert Seman in Mahoning County Ohio.  CLICK HERE

Lawyers narrowing down prospective jurors in Seman murder trial
By: Jerry Ricciutti

YOUNGSTOWN, Ohio (WKBN) – Early next week, Judge Maureen Sweeney should decide whether Robert Seman will be tried in Mahoning County or somewhere else in Ohio.
Seman is charged with setting the fire that killed 10-year-old Corinne Gump and her grandparents in March of 2015. If convicted, he faces the death penalty.
The lawyers for both sides will argue Monday morning over whether or not the case needs to be moved to another county. If the judge rules that the case be tried here, jury selection could begin Tuesday.
About 160 prospective jurors received questionnaires Friday morning to provide information on their prior knowledge of the case, along with background information about themselves.
Having tried two capital cases himself, former Lawrence County District Attorney Matt Mangino says that deciding where the murder trial will be held will come down to being able to seat a jury.
“The fundamental right is to have a fair trial, and a fair trial means that you have a panel of fair and impartial jurors.”
The questioning of those perspective jurors, known as “voir dire,” could begin next week. Mangino says Judge Sweeney and lawyers for both sides will not only be asking about the attitudes of the panelists, but also their backgrounds and relationships.
“Do they have a police officer in their background, in their family? Have they had a family member who’s a victim? Do they have a family member who’s in prison or has served time in prison?”
Lawyers are also going to be interested in what they do for a living.
“There are certain individuals, certain types of employment, that make it more difficult to convince jurors one way or another,” Mangino said.
He admits that seating jurors can also come down to a number of intangibles.
“How do they make eye contact? How do they answer my questions? Were they listening when the judge was instructing them about this whole process?”
Mangino says cases like this can be both time-consuming and emotionally taxing for everyone involved, especially the jurors. He says they will often be consumed by the weight of their responsibilities, even a year or more after the case is over.
“They’re still mulling this case around, thinking about ‘Did I make the right decision? What happened to this defendant? What happened to these victims?'”
Although the Seman case has seen a lot of publicity in the last year and a half, Mangino says that just because potential jurors know about it may not necessarily keep them from being selected. It’s about whether they can remain fair and impartial until the end.

GateHouse: Presidential council to reveal problems with forensic evidence

Matthew T. Mangino
GateHouse Media
September 10, 2016
Prosecutors and law enforcement practitioners are bracing for bad news from The President’s Council of Advisors on Science and Technology (PCAST). President Barack Obama formed PCAST in 2009 following the National Academy of Science’s report that concluded, aside from DNA, there was little, if any, meaningful scientific underpinning to many of the forensic disciplines.
According to The Intercept, which saw a yet to be released copy of the PCAST report, the council has concluded that forensic bite-mark evidence, among other findings, is not scientifically valid and is unlikely ever to be validated.
The report, titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” is marked as a “predecisional” draft, suggesting the report will be made public sometime this month, reported The Intercept.
The report reviews a handful of common forensic practices, so called feature-comparison disciplines, or pattern-matching practices which involve an “expert” examining evidence and determining whether it matches a particular image, person or object.
PCAST is an advisory group of the nation’s leading scientists and engineers who report to the President and formulate policy in the many areas of science, technology, and innovation.
In 2009, the National Academy of Sciences reported, “Forensic science research is not well supported, and there is no unified strategy for developing a forensic science research plan across federal agencies. Relative to other areas of science, the forensic disciplines have extremely limited opportunities for research funding.”
The FBI has begun to come to grasp with the ills of flawed forensic evidence. Last year the FBI admitted that, after reviewing 500 cases that employed microscopic hair analysis, examiner’s’ testimony contained erroneous statements in at least 90 percent of the cases.
Defendants in at least 32 of those cases received the death penalty, according to the FBI. Nine of those defendants have been executed, and five died of other causes while on death row.
The review is part of an ongoing, long-term investigation of decades of FBI microscopic hair analysis that the agency is conducting in partnership with the Department of Justice, the Innocence Project and the National Association of Criminal Defense Lawyers. The project launched in July 2013, and last year’s announcement covered the first 500 cases of an estimated 3,000 spanning from the 1970s up to 2000.
With regard to bite-mark analysis the record is little better. At least 24 individuals charged or convicted, of murder or rape, based at least in part on identifying bite marks on the flesh of victims have been exonerated since 2000, according to the Innocence Project. Many of those individuals spent time behind bars. A small group of dentists belonging to the American Society of Forensic Odontologists are responsible for the proliferation of bite-mark analysis. Those dentists’ findings are often key evidence in prosecutions — even though there is no scientific proof that teeth can be matched definitively to a bite into human skin. The FBI doesn’t use it, and the American Dental Association does not recognize it.
“Bite-mark evidence is the poster child for unreliable forensic science,” Chris Fabricant, director of strategic litigation at the New York-based Innocence Project told The Associated Press. According to the Washington Post, there are hundreds of people in prison due to bite-mark testimony, including at least 15 on death row.
Even fingerprint analysis — the gold standard of evidence — is under fire. Until recently the FBI described fingerprint identification as 100 percent infallible, that is no longer the case. “There’s going to be, I think, variability anytime there’s a human involved in the process,” FBI expert Melissa Gische told PBS’s Frontline.
There is even more evidence under scrutiny — shoe and tire tread prints, tool marks, ballistics and even bias in line-up and eyewitness identification. The PCAST report is only the first step in what promises to be a long journey through the criminal justice system.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him and follow him on Twitter at @MatthewTMangino.
Visit the column CLICK HERE

Friday, September 9, 2016

Prosecutors drop case against former Virginia governor and wife

Federal prosecutors will abandon their effort to retry former Virginia Gov. Bob McDonnell and his wife, Maureen, in the wake of the Supreme Court's June reversal of his conviction on corruption charges. The decision, which became public in a court filing, represents a major victory for McDonnell, who was once considered a rising star in the Republican Party.
McDonnell and his wife Maureen were found guilty in 2014 of accepting more than $165,000 in gifts and loans from a businessman in exchange for political favors. The day he was originally indicted, McDonnell apologized for using "poor judgment" and acknowledged receiving the loans and gifts. But he insisted that he did nothing illegal in exchange for wealthy vitamin executive Jonnie Williams.
To read more CLICK HERE

Thursday, September 8, 2016

Dallas County DA resigns amid struggle with mental illness

Dallas County District Attorney Susan Hawk resigned Tuesday to focus on her mental health after less than two years in office, reported the Dallas Morning News
Her tenure was overshadowed by three long-term hospitalizations for depression and a mood disorder.
"It is with a heavy heart that I must tender my resignation as Dallas County District Attorney," she wrote to Republican Gov. Greg Abbott, who will appoint her replacement. 
"It's been an honor and a privilege to serve this office and the citizens of Dallas County alongside you, but my health needs my undivided attention. More than my words could express, I appreciate the grace I've been shown as I've tried to balance my health and my duties. This has been a very difficult decision for me. "
Rumors had abounded for months that Hawk, 46, would resign. Some had called for her to step down. Right up to the end, supporters remained indignant at the suggestion she should give up her post because of her prolonged absences. They said no one would suggest Hawk quit if she had been suffering from cancer.
Others said they supported her if she could continue the high-stress job of DA and take care of her mental health.
After three hospitalizations, she decided she couldn't carry on.
"I've dedicated my life to serving our criminal justice system. I believe our office is making a difference and I want to continue that good work," she wrote. "But last fall upon returning from treatment, I made a commitment to step away from the office if I felt I could no longer do my job. Unfortunately, I've reached that point and my health needs my full attention in the coming months."
To read more CLICK HERE