Mangino on WFMJ-TV21 Weekend Today

Watch my interview about OVI/DUI, Social Host and Dram Shop Laws on WFMJ-TV21 Weekend Today.

To watch the interview CLICK HERE

GateHouse: Drug court works, but enrollment is on the decline

Matthew T. Mangino

GateHouse Media

December 29, 2017

Countless state and local government bodies have taken action in response to the opioid crisis. However, the death toll continues to rise. The New York Times estimated that 59,000 people died of drug overdoses in 2016, and based on projections by the Centers for Disease Control for 2017, an estimated 66,000 people will die of drug overdoses.

Data for this year is still incomplete because of the time it takes to conduct death and toxicology investigations. However, Bob Anderson, chief of the mortality statistics branch at the National Center for Health Statistics says the 2017 estimates are alarming. “The fact that the data is incomplete and they represent an increase is concerning,” he said.

“Our current addiction crisis and especially the epidemic of opioid deaths will get worse before it gets better,” President Donald Trump said as he formally declared the crisis a public health emergency in October.

One effort to tackle the nation’s exploding opioid crisis is legislative action to impose lighter sentences for drug offenders. The Justice Reinvestment Initiative—implemented in more than half of the states—has been praised as a forward-thinking solution to a host of criminal justice problems, including the overcrowding of prisons and jails.

Reducing sentences for drug offenders opens prison beds for violent offenders and others the court deems likely to commit major crimes. Fewer inmates means lower prison costs, freeing up state dollars to reinvest in treatment programs and other long-term solutions to criminal activity.

However, the unforeseen consequence of lighter sentences is a nationwide drop in enrollment of highly successful drug courts.

Drug court is a minimum 12-month intensive, court-supervised program. Drug-dependent offenders are enrolled in drug courts in lieu of traditional justice system case processing. According to the National Association of Drug Court Professionals, drug court participants are provided with treatment services that help them get sober, and stay sober.

Participants are held accountable by the drug court through regular drug testing; frequent court appearances to enable the judge to review progress; and rewards for doing well or sanctions when not complying.

Researchers in a number of studies found that drug courts reduced recidivism. According to the National Institute of Justice, one study found that within a two-year period, the felony re-arrest rate decreased from 40 percent before the drug court to 12-percent after the drug court started in one county, and the felony re-arrest rate decreased from 50-percent to 35-percent in another county.

Few policymakers saw that removing the threat of a felony conviction—and a lengthy sentence—would inadvertently reduce the incentive for offenders to choose to participate in drug court.

According to Governing Magazine, drug court was an attractive alternative for someone facing a five-year sentence and a felony conviction on their record. Now according to Brent Kelsey, assistant director of the Utah Division of Substance Abuse and Mental Health, when the potential penalty is a few days or months in jail, drug offenders are less likely to enroll in a 12-month drug court.

In November 2014, California passed Proposition 47, The Safe Neighborhoods and Schools Act. The voter-approved referendum reduced penalties for drug possession and other non-violent felonies, including commercial burglary, forgery, grand theft and possession of a controlled substance.

San Bernardino County (CA) District Attorney Michael A. Ramos said that without the bargaining chip of lowering felonies to misdemeanors, Proposition 47 has erased any incentive to compel defendants into drug court.

“Our drug court’s basically non-existent,” Ramos told the Victorville Daily Press. The evidence is clear that drug courts have a positive impact. Will the same be true for reforms driven by Justice Reinvestment Initiatives?

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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94-year-old Florida woman arrested for not paying rent

Here is a “heartwarming” holiday story out of sunny Florida.  Authorities released a 94-year-old woman from jail after police arrested her for allegedly not paying rent at the senior housing community where she had lived since 2011, reported Huffington Post.

Wheelchair bound Juanita Fitzgerald spent her 94th birthday on Friday in a motel room, The Orlando Sentinel reports. The day before, she had been released from Florida’s Lake County Jail, which is where police took her after she was evicted from her home at the National Church Residences’ Franklin House in Eustis, FL. The facility accused her of refusing to leave.

Clad in an orange jumpsuit, Fitzgerald told WFTV reporters earlier this week that she did not understand why she was being evicted.

Bodycam footage from the arrest showed her screaming and sliding to the ground in an apparent attempt to avoid being taken away. A police report obtained by The Miami Herald noted that Fitzgerald had told officers, “Unless you carry me out of here, I’m not going anywhere.”

While some headlines described Fitzgerald as being “handcuffed,” the police report stated that she was transported to jail without handcuffs because of her age. However, Fitzgerald showed the Sentinel bruises and scratches on her ankles that she said were from prison shackles. A jail spokeswoman told the site that it was typical for inmates to wear restraints, but could not confirm anything specifically about Fitzgerald’s case.

Crime falls again in New York City, lowest since record keeping began

It would have seemed unbelievable in 1990, when there were 2,245 killings in New York City, but as of Wednesday there have been just 286 in the city this year — the lowest since reliable records have been kept, says the New York Times. Reported crime has fallen this year in New York City in each of the major felony categories — murder and manslaughter, rape, assault, robbery, burglary, grand larceny, and car thefts — to a total of 94,806 as of Sunday, well below the record low of 101,716 set last year. If the trend holds a few more days, this year’s homicide total will be less than the city’s previous low of 333 in 2014, and crime will have declined for 27 straight years, to levels that police officials have said are the lowest since the 1950s.

The numbers, according to The Crime Report, when taken together, portray a city of 8.5 million people growing safer even as the police, under Mayor Bill de Blasio, use less deadly force, make fewer arrests and scale back controversial practices like stopping and frisking thousands of people on the streets. Franklin E. Zimring, a law professor at Cal-Berkeley, said the downturn was an “astounding achievement,” but it raised another question: How long and low will crime fall? “We don’t know when we’ve exhausted the possibilities of urban crime decline, and we won’t know unless and until New York scrapes bottom,” said Zimring.

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Sessions revokes Obama-era guidelines on excessive fines

Over the course of the past week, Attorney General Jeff Sessions has revoked a total of 25 Obama-era Department of Justice (DOJ) guidelines, reported Jurist. Among them was a 2016 guideline that advised local courts to not hand down or enforce unnecessary and excessive fines on those without the means to pay them.

In 2016, the DOJ released a report on its investigation into excessive fine enforcement in Ferguson, Missouri. The report found that:

The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City's financial interests. This has led to court practices that violate the Fourteenth Amendments due process and equal protection requirements.

Since taking over the DOJ, Sessions has disapproved of using guideline protocols to drive policy. In a November memo, Sessions stated that:

the Department has in the past published guidance documents—or similar instruments of future effect by other names, such as letters to regulated entities—that effectively bind private parties without undergoing the rulemaking process. The Department will no longer engage in this practice. Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities . . .

Following the release of the November memo, the DOJ has been undergoing a "review and repeal" process to rescind any guidelines that run counter to this belief.

To read more CLICK HERE

The Crime Report: W. Va., Ohio Lead Nation in Drug Overdose Death Rates

Drug overdoses killed 4,329 Ohioans in 2016, the second-highest death rate in the nation, reported The Crime Report. That’s up 24 percent over the 3,310 drug deaths the previous year, according to a report released Thursday by the federal government, reports the Columbus Dispatch. Despite increased government spending, Ohio’s rate of drug-overdose deaths, 39.1 per 100,000 people, trailed only West Virginia’s 52 per 100,000 population. 

The powerful and deadly synthetic opioid fentanyl is largely to blame for the exploding number of deaths, according the National Centers for Health Statistics. “We’ve got a big problem in Ohio,” said Dublin Police Chief Heinz von Eckartsberg. First responders in Dublin had to use two doses of the drug antidote naloxone to revive a 20-year-old man earlier this week and 11 doses to revive another man last month, suggesting they’d taken fentanyl. Statewide, emergency responders have administered more than 43,000 doses of naloxone this year, up from 31,800 in all of 2016.

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Yes Virginia there is a Grinch, he lives in Kingston, Ontario

The annual Santa Claus parade in Kingston, Ontario, does not normally feature any type of Grinch character. But the Canadian town’s longtime tradition was once obstructed by one, who decided to go around telling all the young children in attendance that Santa Claus is not real. According to the Toronto Star, the man was arrested by police for spilling the beans in a disturbing manner, and was also charged with public intoxication and a probation violation.

The parade is typically a joyous occasion marked by festive lights, floats, and of course an appearance by Santa Claus himself. But things turned sour when an unidentified man began roaming Princess Street around 6:00 pm, telling all the children that the bearded icon is a fraud. Reports indicate that the man had also slicked his hair back with gel into the shape of devil horns, which disturbed quite a few people in attendance.

After a parade attendee called the police out of concern, officers arrived on the scene and apprehended the man, who was immediately charged with causing a disturbance. It turned out that the man had also been drinking and was in violation of his probation, two additional charges which were tacked onto the arrest. 

“It was pretty despicable that someone, during this time of the year, would tell kids Santa isn’t real — which of course we would argue,” said Constable Steve Coopman from the Kingston Police Force to reporters about the incident. “He was disturbing everyone there on the thoroughfare, he was disturbing the families, obviously disturbing the children.”

A Washington County Sheriff simplifies Miranda Warnings for juveniles

Anyone who’s watched a cop show on television in recent decades has a decent understanding -- or at least a memory -- of the rights accorded to those arrested: the right to an attorney, the right to remain silent and all the other protections given to the accused over the past half-century, following the U.S. Supreme Court’s 1966 decision in Miranda v. Arizona.

But juvenile offenders often don’t have a clear understanding of what those rights entail, reported Governing. Back in 2013, the American Academy of Child and Adolescent Psychiatry concluded that Miranda warnings are “too complex and advanced” for most juveniles. The group recommended that “police and other law enforcement authorities should utilize simplified Miranda warnings developed specifically for use with juvenile suspects.”

Now, the sheriff’s office in King County, Wash., has done just that. Working collaboratively with the public defender’s office and a community nonprofit, the sheriff consulted with brain researchers to come up with simplified warnings, which were then focus-grouped among teens. “For the most part, we have always done the same warning for kids that we do for adults,” says Sheriff John Urquhart. “We came to the conclusion, as we know now, that kids’ brains develop slower. To be fair, we thought we should revise the warning so that they understand what their constitutional rights are.”

Juvenile offenders in King County are now told repeatedly, and in different phrases, that they have a right to an attorney, underscoring that the attorney’s services are available free of charge. They not only are told that they can remain silent, but are offered an explanation that this means “you don’t have to say anything. It’s OK if you don’t want to talk to me.”

Urquhart says he’s getting the same kind of pushback that law enforcement has gotten ever since the advent of Miranda warnings -- namely, that no kid will ever confess with those kinds of protections. The new warnings are just being rolled out, but so far there’s no evidence that they’re hindering cases. The Seattle Police Department -- the only force in the state larger than the King County Sheriff’s Office -- is now considering adopting them as well.

Laurence Steinberg, an expert on adolescent psychiatry at Temple University, describes the warnings as a “valuable change in policy.” Nevertheless, he argues that even if kids have a better grasp of their rights, they generally lack the judgment or foresight to think through the implications of the decisions they make, including whether to stay silent. Like the American Academy of Child and Adolescent Psychiatry, he recommends that an adult who cares about the child’s welfare, such as an attorney or a relative, should be present during interrogations. That’s already standard practice in many departments.

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GateHouse: Escape into the world of courtroom noir

Matthew T. Mangino

GateHouse Media

December 22, 2017

If you’re looking for an interesting escape during the holiday season, check out my top-five courtroom noir movies. The golden age of film noir was the 1940s and 1950s, however there was a five-year stretch between 1957 and 1962 that produced some the most entertaining courtroom noir dramas of all time.

My top five movies starred some of the true heavyweights of cinema — Jimmy Stewart, Gregory Peck, Henry Fonda, Spencer Tracy and Charles Laughton, not to mention academy award winner Maximilian Schell, Lee Remick, Burt Lancaster and Marlene Dietrich.

Let’s start with “Witness for the Prosecution,” released in 1957 and based on a play by Agatha Christie. The film adaptation starred Charles Laughton and Marlene Dietrich. Laughton plays Sir Wilfred Robarts, an aging barrister — white wig and all — in the Old Bailey, the British criminal court.

Robarts takes on Leonard Vole as a client, accused of murdering a rich widow who was smitten enough with him to make him a gift in her will.

Vole’s wife, played by Dietrich, is called as a witness for the prosecution. While a wife cannot be compelled to testify against her husband, her conscience forced her to tell the court Vole killed the old widow.

A mystery woman later emerges, Vole’s wife is recalled to the witness stand and another murder occurs in open court — I’ve already told you too much.

Also in 1957, “Twelve Angry Men” was released by Orion-Nova Productions. The movie starred Henry Fonda with and ensemble cast that included many familiar faces. The movie takes place almost exclusively in a jury deliberation room, while 12 men-that’s right, no women — deliberate the fate of a young man accused of stabbing his father to death.

Lee J. Cobb and Ed Begley are marvelous as each of the 12 men in a sweltering, smoke-filled room reveal their prejudices, biases and inner-demons. Director Sydney Lament did wonders with one room, 12 men and no props.

In 1959 Jimmy Stewart portrayed a former district attorney, turned country lawyer who takes on a murder case in “Anatomy of a Murder.” An army officer is accused of killing a man who raped his wife, played by Lee Remick. The hot-shot prosecutor called in from the attorney general’s office is played by George C. Scott.

The courtroom scenes are entertaining, but a bit unrealistic. Stewart’s argument about the underlying rape that invokes a metaphor of the “core of the apple” is worth rewinding and watching again. The movie’s judge is not an actor but rather a lawyer, Joseph N. Welch, who rose to fame challenging Senator McCarthy during his communist witch-hunt by bellowing, “Senator, have you no decency.”

“Judgement at Nuremberg” was released in 1961. The film was directed by Stanley Kramer, who teamed up with the film’s star Spencer Tracy in another courtroom drama, “Inherit the Wind.” Maximilian Schell won an Academy Award for portraying a defense attorney and Marlene Dietrich also appears — the only common actor in my top five — as the wife of an executed Nazi general.

The film centers on a phase of the Nuremberg war trials, dealing with the prosecution of German judges after World War II. The judges, the most prominent portrayed by Burt Lancaster, were accused of crimes against humanity for acquiescing to atrocities committed by Hitler and the Nazis.

Last, but certainly not least, is Harper Lee’s Pulitzer Prize winning novel adapted for the silver-screen — “To Kill a Mockingbird.” Gregory Peck won an Academy Award for portraying Atticus Finch. The novel and movie are set in 1930s Alabama. Finch is cajoled by the county judge into representing Tom Robinson, a black man, accused of raping a white woman, a capital crime in Alabama and much of the south at the time.

The movie is told through the eyes of Finch’s tomboyish daughter, Scout. The movie tells a compelling story of race and class in the early 20th-century South. Scout’s simple but poignant action to diffuse a racist mob outside the county jail — set on lynching Robinson — is as riveting today as it was more than 50 years ago.

Grab some popcorn and your favorite throw and slip away into the wonderfully suspenseful world of courtroom noir.

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

To visit the column CLICK HERE

Nearly three out of four scheduled executions were cancelled in 2017

Nearly three out of four death dates scheduled nationwide in 2017 were cancelled, after courts and governors intervened in 58 executions across the country, reported the Houston Chronicle.

That's one of the striking takeaways from a pair of end-of-year reports that offer sweeping overviews of capital punishment in 2017.

The broader trends offer no surprises: executions are down, but Texas is still the nation's killingest state. Nearly a third of the year's 23 executions took place in Texas.

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TCR Top Newsmakers of 2017

None of the newsmaker nominations, drawn from names suggested by The Crime Report staff and contributors, captured a majority of this year’s reader votes, reflecting perhaps the large number of potential candidates— or maybe the fact that we were on the wrong track entirely, as a few readers complained. 

But the plurality of votes went to special counsel Robert Mueller, and the # MeToo Movement, who were each tied at 40 percent. Former TCR contributor Matthew Mangino summed up for many why Mueller stood out in the year: “Without twitter, talk shows or press conferences, (he) is making a lot of noise, methodically sifting through the remnants of a campaign bent on winning at any cost.”

The comments supporting the collective choice of the participants in the social media campaign, underscore the reasons why many also chose the sexual misconduct story as a landmark development in 2017. The campaign took off in October, when actress Alyssa Milano encouraged spreading the phrase, tweeting that, “If all the women who have been sexually harassed or assaulted wrote ‘Me too’ as a status, we might give people a sense of the magnitude of the problem.”

It worked.

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Why is Trump team attacking Mueller and his investigation?

Allies of President Donald Trump are orchestrating a relentless stream of attacks on the credibility and integrity of Special Prosecutor Robert Mueller and his probe of Russian meddling in the 2016 election. The president insists he’s not going to fire special counsel Robert Mueller, reports Politico. In the last week, Mueller’s investigators have been accused of bias against Trump and of violating criminal procedure to get documents related to his transition.

The purpose of the onslaught, say people close to the White House, is to sow public doubt about Mueller and his prosecutors in advance of criminal trials and to give the president political cover if he wants to start issuing pardons to any current or former aides swept up in the Russia scandal, Politico reports.

“It is definitely a smarter strategy than outright firing of Mueller, because that is likely to create a firestorm,” said Elizabeth de la Vega, a federal prosecutor in San Francisco. “It is also entirely consistent with Trump’s modus operandi because he is surprisingly non-confrontational, preferring to be manipulative and, frankly, sneaky.” 

The latest complaints against Mueller are a sharp escalation from earlier this year, when Trump and his allies questioned Mueller’s hiring of prosecutors who had predominantly donated to Democrats, including President Obama and Hillary Clinton. While Trump told reporters Sunday that he wasn’t considering firing Mueller, he said about the special counsel’s methods for obtaining his transition team’s emails, “It’s not looking good. It’s quite sad to see that. My people are very upset about it. I can’t imagine there’s anything on them, frankly, because as we said, there’s no collusion.”

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Racism and jury selection remains a problem in American courts

Jeffrey Bellin a professor at William & Mary Law School writes in the USA Today, it's illegal to eliminate jurors solely on the basis of race.

But a recent appellate court decision shows how easy it is to circumvent the rule meant to ensure a fair and balanced jury, which is a cornerstone of the American justice system. 

The Connecticut Supreme Court ruling in Connecticut v. Holmes —  the appeal of a Connecticut murder case that ultimately landed a black man in prison after a potential African-American juror was eliminated — should alarm anyone who cares about democracy.

During jury selection in the original case, "W.T.," who was African American and being interviewed by both the prosecution and the defense as a potential juror, expressed concerns about law enforcement in answer to questions posed by the prosecutor.  

"Some things are not fair," W.T. said. He also stated that “sometimes . . . when I see the police in back of me, I wonder, you know, if I’m going to be stopped.”

But W.T. also emphasized that he would follow the law and "judge (the case) by the facts." 

Still, the prosecutor eliminated W.T. The state explained that the elimination was "race-neutral" and expressed concern about the fact that W.T.'s family members "have been convicted and have served time. ... If we had a Caucasian who was in the same situation," they would also have eliminated him from the jury, the state said.  

But I suspect few people who read W.T.'s full statement would have agreed with the prosecutor's decision. W.T. comes across as a thoughtful, candid person, the kind of person we want on juries. 

As Connecticut appellate Judge Douglas Lavine noted in his concurring opinion, the views W.T. expressed were “by no means radical or unreasonable. On the contrary, they appear to be logical, fact-based, and understandable.” 

But attorneys have a limited number of chances (that number varies by state) to remove potential jurors, for any reason at all, and with no explanation given. And until 1986, those reasons could have included race. But the Batson rule, named after the Supreme Court decision, was intended to change all of that. 

Defendants can use the rule to challenge the elimination of a juror if they think the prosecutor's choice was based on race. And in this case, the defendant did.

For the Batson challenge to have worked, the defendant had to show that the prosecutor made the decision based primarily on race and with the intention to discriminate — something that's difficult to prove when prosecutors can easily use reasons related to race, that are deemed "race-neutral," to eliminate jurors. 

The state claiming that a Caucasian juror would have been eliminated for expressing the same concerns about police sounds good but likely wouldn't happen. That level of police fear and discrimination is tied much more closely to the black experience in America. 

The trial judge in the original case upheld W.T.'s elimination, stating that the prosecutor's decision was "race-neutral."  

The appellate court also upheld the ruling. 

The Batson challenge may have changed procedures, but September's Connecticut v. Holmes appellate ruling shows that the results are still the same — prosecutors who want to eliminate black jurors can do so in a way that's frequently incontestable.  

To read more CLICK HERE

Report of new expungement and restoration laws

In 2017, 23 states enacted laws aimed at reducing barriers faced by people with criminal records in the workplace and elsewhere, says the Collateral Consequences Resource Center in a new report. 

Some of these laws significantly expanded the availability of relief, while others involved relatively minor changes to existing laws.

• Most of the new laws involved either restrictions on public access to records or limits on employer inquiries into criminal history. A few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing.

• Important new record-sealing schemes were enacted in Illinois, Montana and New York, and nine other states either relaxed eligibility requirements or otherwise supplemented their existing sealing or expungement authorities to make relief more broadly available at an earlier date. Of these nine, the most ambitious reforms were enacted by Nevada, which was one of several states that created a presumption in favor of relief for eligible persons.

• Seven states enacted substantial revisions to their juvenile expungement and sealing laws in 2017, some of which require courts to order relief automatically after a brief waiting period. • Ten states enacted state-wide “ban-the-box” laws limiting inquiries into criminal records by public employers at preliminary stages of the hiring process. California, Connecticut and Vermont extended these limits to private employers as well.

• In California and Nevada, restrictions on application-stage inquiries are part of a broader nondiscrimination scheme that prohibits consideration of certain kinds of criminal records, and establishes standards for individualized determinations in all other cases. Both states provide additional procedural protections.

• While reforms are moving at a fast pace, there is no consensus about the most effective way to avoid or mitigate the adverse effects of a criminal record, and very little relevant empirical research.

Dr. Omalu of 'Concussion' resigns medical examiner's job under protest

Dr. Bennet Omalu of NFL concussion fame, announced his resignation as San Joaquin County’s chief medical examiner. Omalu’s colleague Susan Parson also resigned. In California the sheriff also serves as the coroner. Under Sheriff Steve Moore, they said, the county has failed to adequately investigate deaths in the county.

Hands chopped off bodies; corpses left to deteriorate; doctors pressured to classify officer-involved deaths as accidents rather than homicides: The two pathologists have been documenting events inside the Sheriff-Coroner’s operation for months. The pair publicly released more than 100 pages of memos this week detailing their allegations, in addition to sending them to the San Joaquin County Board of Supervisors and the county district attorney in a push for a broader investigation.

 “The sheriff does whatever he feels like doing as the coroner, in total disregard of bioethics, standards of practice of medicine and the generally accepted principles of medicine,” Omalu wrote in a memo dated Aug. 22.

Omalu is a nationally recognized forensic pathologist best known for his work on concussion-related brain injuries sustained by many football players. He is also a volunteer associate clinical professor at the University of California, Davis. His work was turned into the 2015 film “Concussion,” starring Will Smith as Omalu.

“The sheriff is interfering with the doctors’ ability to do their job and he is trying to influence their decisions,” said Patricia Hernandez, the union representative for both Omalu and Parson, who declined to be interviewed. “I would call it rogue mismanagement.”

San Joaquin County Sheriff’s office public information officer Dave Konecny did not return a call for comment. Moore posted a statement on Facebook on Nov. 28 that said he takes “my job extremely seriously.”

“As Coroner, the law requires me to make the final determination in the manner of death of each case processed here at the Office,” Moore wrote. “I want to make it clear that at no time did I attempt to control or influence (Parson’s) professional judgment and conclusions.”

To read more CLICK HERE

GateHouse: This year marks anniversary of landmark juvenile decision

Matthew T. Mangino

GateHouse Media

December 15, 2017

Fifty years ago the U.S. Supreme Court made a pretty simple decision -- juveniles have rights. In 1967, the high court made a decision that we take for granted today. The court ruled that a juvenile accused of a crime must be afforded due process. Those are the fundamental rights that protect us from government overreach--such as the right to be notified of charges; the right to confront witnesses; the right against self-incrimination; and, the right to counsel.
Prior to 1967, those rights were not available to juveniles accused of a crime.
Then one day in 1964, 15-year-old Jerry Gault made a lewd prank phone call to his neighbor. The neighbor called the police and Gault was arrested.
A hearing was held the next day in an Arizona courtroom. There was no recording of the hearing. Gault’s neighbor didn’t show up, and no witnesses testified. He was not given a copy of the charges, and the court didn’t inform him of the charges he faced. He did not have an attorney because juveniles were not provided an attorney in Arizona at the time.
Gault returned to court the following week. Like the first hearing, the neighbor who notified the police was not present and no record was made of the proceedings. A report was filed by the probation office accusing Gault of making a lewd phone call. He did not get an opportunity to present any evidence or have a trial on the charge. At the end of the hearing, the judge sentenced Gault to a juvenile detention facility until he reached the age of 21.
Juveniles were not given a right to appeal in Arizona at this time, so Gault’s parents filed a court action alleging that there was no legal authority to hold their son. Known as writ of habeas corpus, the action is appropriate where an individual is being detained without sufficient authority.
The case ultimately made its way to the U.S. Supreme Court. The high court was clear-- the Fourth Amendment is not for adults only.
The Supreme Court reasoned that when a juvenile is adjudicated delinquent and deprived of freedom, due process requirements should attach. Indeed, the Court acknowledged that the gravity of Gault’s sentence turned on his being a juvenile, not an adult. The Court pointed out, had Gault committed the same offense when he was 18 or older “he would have been sentenced to a punishment of a $50 fine or a maximum of two months in jail.”
The Court rejected the paternalistic view of juvenile proceedings in order to provide fairness and protection under the U.S. Constitution to juveniles who faced the real possibility of extended detention.
In Re: Gault is a landmark Supreme Court decision for two important reasons. First, it prevented courts form hiding behind the idea that a juvenile hearing was about punishment-- rather than rehabilitation--and therefore, juveniles need not be protected from constitutional violations.
Second, it created the mentality that if a juvenile is old enough for rights she is old enough for stripes. As a result, it became easier to treat juveniles as adults for serious and repeated criminal activity.
Those changes over the last 25 years have landed many juvenile offenders in adult jails and prisons. However, the Supreme Court has begun to focus attention on eliminating or dramatically reducing the most severe punishment imposed on juveniles.
The tide is beginning to turn. In the time since Gault, the Supreme Court removed the death penalty for anyone 15 or under, then outlawed the death penalty for all juveniles. The high court also did away with life in prison without parole for any non-homicide offense and mandatory life without parole for juveniles.

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

To visit the column CLICK HERE

PLW: Pa. High Court Expands Fourth Amendment Protections for Motorists

Matthew T. Mangino

The Pennsylvania Law Weekly

December 14, 2017

Last month, the Pennsylvania Supreme Court made a significant decision with regard to whether the interaction between a motorist and a police officer, with overhead emergency lights activated, is a mere encounter or an investigative detention. More to the point, is the motorist free to leave or is he being detained by the police?

The question also encompasses the safety of the public as well as the police officers who encounter vehicles. By activating overhead emergency lights behind a stopped vehicle, the driver is alerted that there is a law enforcement officer behind him and passing motorists are alerted that a police officer and a stopped vehicle are alongside the road.

The U.S. Supreme Court has consistently held that police officers do not violate the Fourth Amendment by merely approaching an individual in a public place and asking the individual questions or requesting identification.

In Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court held that the Fourth Amendment prohibition against unreasonable search and seizure is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest. The Terrycourt created a new degree of suspicion, more than a hunch but less than probable cause. After Terry, if a police officer has a “reasonable suspicion” that a suspect has committed, is committing, or is about to commit a crime or may be armed—the officer can detain, question and frisk the suspect.

The Pennsylvania Supreme Court recently took on the issue of an investigative detention involving a motor vehicle in Commonwealth v. Livingstone, No. 11 WAP 2016. The appellant, Victoria Livingstone, sought the suppression of evidence gathered during an interaction she had with a Pennsylvania state trooper along a busy interstate that led to her conviction of a DUI (driving under the influence).

Livingstone was stopped on the side of the road at approximately 9:30 p.m. on June 14, 2013, when a trooper observed her car and pulled alongside to see if she needed assistance. When the trooper attempted to engage Livingstone, she returned a “100-mile stare” and exhibited slurred speech and glassy eyes, wrote Ben Seal of The Legal Intelligencer.

The trooper moved his vehicle to the front of Livingstone’s and asked her a few questions. The trooper observed that she slurred her speech, cried, was confused, repeated herself and was unable to follow directions.

After failing a field sobriety test, the trooper placed Livingstone under arrest.

Livingstone’s motion to suppress alleged that the interaction between her and the trooper was an investigative detention without reasonable suspicion or probable cause. Once the trooper activated his car’s emergency lights he began an investigative detention.

The trial court denied her motion finding the interaction was a “mere encounter.” She was found guilty of all charges and appealed. The Superior Court agreed with the trial court and an appeal to the Pennsylvania Supreme Court followed.

In distinguishing a mere encounter from an investigative detention a trial court dealing with a motion to suppress must consider all the circumstances surrounding the encounter between the police and the individual. The Supreme Court crafted a reasonable person standard in Commonwealth v. Lewis, 636 A.2d 619 (1994). Would a reasonable person feel as though she could decline an officer’s request?

A mere encounter can be any formal or informal interaction between an officer and a person. The hallmark of a mere encounter is that it carries no official compulsion to stop or respond.

In contrast, an investigative detention carries an official compulsion to stop and respond, but the detention is temporary, unless it results in the formation of probable cause for arrest, and does not possess the coercive conditions consistent with a formal arrest. Since an investigative stop has elements of official compulsion it requires reasonable suspicion of unlawful activity.

In further contrast, a custodial detention occurs when the nature, duration and conditions of an investigative detention become so coercive as to be, practically speaking, the functional equivalent of an arrest.

A look back at the development of the law in this area is instructive and provides a glimpse into the significance of the Livingstone decision.

In Commonwealth v. Johonoson, 844 2.d 556 (2004), a state trooper observed a slow-moving vehicle traveling with flashing hazard lights on a rural road at 3 a.m. Without using his turn signal, the driver pulled his vehicle off to the side the of road, at which point the officer followed behind. The trooper activated his overhead emergency lights, and pulled behind the vehicle. When the trooper approached the driver he immediately noticed signs of intoxication, and subsequently arrested the driver for DUI.

Johonoson filed a motion to suppress the evidence of his intoxication, arguing that the activation of the officer’s overhead emergency lights would have made a reasonable person in his position believe he was not free to leave and, therefore, he was subject to an investigatory detention.

The trial court denied the motion and the Superior Court affirmed the trial court’s decision reasoning, “By pulling over to the side of the road at 3 in the morning on a rural road, after driving slowly with his hazard lights on, appellant should have had reason to expect that a police officer would pull over and attempt to render aid.”

The Superior Court reached a similar conclusion in Commonwealth v. Conte, 931 A.2d 690 (2007). An officer received a dispatch regarding a disabled vehicle on the shoulder of a road. When the officer arrived at the scene, he pulled behind the vehicle and activated his overhead emergency lights to alert passing vehicles of his presence.

The officer approached the driver who had already exited the vehicle, and asked him if he needed help. The driver told the officer he had a flat tire. After noticing signs of intoxication while speaking with the driver, the officer decided to administer field sobriety tests, the driver failed and submitted to a blood test resulting in a blood alcohol reading of .23 percent.

The driver was arrested and convicted. An appeal followed.

The Superior Court affirmed the trial court’s denial of Conte’s motion to suppress. Relying on the rationale in Johonoson, the court found that “the evidence introduced at the suppression hearing shows that a reasonable person in Conte’s position would have understood the police officer’s arrival as an act of official assistance, and not as the start of an investigative detention.”

In Commonwealth v. Kendall, 976 A.2d 503 (2009), Gregory Kendall appealed his Franklin County conviction for driving under the influence. On Sept. 17, 2007, two state troopers followed Kendall’s car for approximately two or three minutes at a distance of 50 to 100 feet, the driver activated his turn signal and pulled off to the shoulder of the road. The road had a narrow shoulder and the driver pulled the car partially onto a property that bordered the road.

The troopers pulled behind Kendall’s vehicle. After running the license plate one of the troopers activated the overhead lights and exited the patrol car and approached the vehicle. The trooper asked Kendall why he suddenly pulled over, and Kendall replied that it was to let the patrol car pass.

The trooper smelled alcohol and Kendall failed a field sobriety test. A blood test revealed Kendall had a blood alcohol content of .14 percent.

Kendall filed a motion to suppress alleging the stop was an investigative detention and not supported by reasonable suspicion. The Superior Court did not agree and ruled that the level of interaction between Kendall and the troopers began as a mere encounter and therefore no reasonable suspicion was required.

Finally, in 2009, the Pennsylvania Superior Court, en banc, decided Commonwealth v. Au, 986 A.2d 864 (2009). A police officer on routine patrol after midnight observed an automobile parked in the lot of a local business, which had closed several hours earlier.

The officer decided to see if the vehicle’s occupants needed assistance as it was unusual to see a car in the lot at such a late hour. Without activating his emergency lights, the officer parked his vehicle so that his headlights illuminated the passenger side of the vehicle. The car was filled with young people and the officer asked for identification.

The court found that an officer’s request for identification from a group of teenagers in a vehicle constituted an investigative detention unsupported by reasonable suspicion.

The Pennsylvania Supreme Court reversed the Au majority’s holding (Commonwealth v. Au, 42 A.3d 1002 (2012)), and adopted the analysis of the U.S. Supreme Court in Hiibel v. Sixth Judicial District Court, 542 U.S.177(2004), in which the high court held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment. In Au the Pennsylvania Supreme Court held that “a request for identification is not to be regarded as escalatory in terms of the coercive aspects of a police-citizen encounter.”

What distinguished Au from Livingstone is that the officer in Au did not activate his overhead emergency lights. Had he activated his emergency lights the stop may have been an investigative detention regardless of the request of identification.

Contrary to decisions reviewed above, the Pennsylvania Supreme Court has made it clear in Livingstone that the activation of a police car’s overhead emergency lights is enough to initiate an investigative detention. A motorist who drives away from a police car with lights illuminated may be convicted of fleeing and alluding, 75 Pa.C.S.A. 3733.

“The fact that motorists risk being charged with violations of the motor vehicle code … supports our conclusion that a reasonable person in the appellant’s shoes would not have felt free to leave,”

Therefore, Livingstone was seized and subjected to an investigative detention without any degree of suspicion of criminal activity.

Will this decision put motorists and police officers in danger or jeopardize viable prosecutions? If activating emergency lights initiates an investigative detention, will police officers avoid using their overhead lights when checking on a motorist? The safety of motorists on the roadway and the police officer would be compromised.

On the other hand, activating overhead lights without reasonable suspicion may make evidence of criminal activity seized by police subject to suppression.

In light of Livingstone, Pennsylvania appellate courts will no doubt be asked to review the parameters of reasonable suspicion. Soon sitting along the highway in a stopped vehicle may be enough to trigger reasonable suspicion.

The Pennsylvania Supreme Court also used the facts in Livingstone to examine the public servant “exception” to the requirement for a warrant pursuant to the community caretaker doctrine. A more thorough review of those 23 pages of legal analysis will be left for another column.

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

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DA encourages support for PA Clean Slate Act

Allegheny County District Attorney Steve Zappela wrote recently in the Pittsburgh Post-Gazette: Last year, the state Legislature passed a law that offers the chance to seal old, minor criminal records for people who stay out of trouble. While that was a good start to help people rebuild their lives and reputations, there is a next step that should be taken.

The law now requires Pennsylvanians who stay out of trouble for 10 years to go through a time-consuming and cumbersome process to seal their records, a process that includes a court hearing and the payment of a filing fee.

The General Assembly can ease that burden by passing the Clean Slate Act. The act would make the sealing of these records automatic after 10 years for nonviolent offenders who stay out of trouble. The courts and police agencies would work together to accurately and automatically seal these criminal records within two months of an offender’s eligibility. Those who qualify would simply be notified by mail that their records have been sealed. They would not have to go through a hearing, pay a fee or hire a lawyer.

Criminal background checks are necessary and serve an important function. Employers, landlords and schools should know if there is something in a candidate’s past that makes that person a danger or liability. The Clean Slate Act would not inhibit background checks. What it would do is allow nonviolent offenders who remain crime-free for a decade to apply for housing, jobs and schools, knowing that a long-ago minor crime will not stand in the way of their applications being considered.

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FBI agents involved in Russia probe tweet Trump is an 'idiot'

Two FBI agents assigned to the investigation into alleged collusion between President Trump’s campaign and Russia exchanged text messages referring to the future president as an “idiot,” according to copies of messages turned over to Congress by the Justice Department, reported Politico. Special Counsel Robert Mueller removed agent Peter Strzok from the probe “immediately” after learning of the texts in late July, the department said. The other agent, Lisa Page, had ended her assignment to Mueller’s office. After Page commented on a Bernie Sanders bumper sticker, Strzok replied, “He’s an idiot like Trump. Figure they cancel each other out.”

The messages, which turned up during a Justice Department inspector general investigation into political influence on investigative decisions during the campaign, are fueling Republican calls for a second special counsel to investigate Mueller’s operation. 

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Doug Jones is projected to win Senate seat in Alabama over maligned Roy Moore

The Associated Press projected that Doug Jones, a former U.S. attorney, defeated Roy Moore, a controversial former judge, in a major upset. Moore faced allegations that, decades earlier, he had pursued romantic relationships with girls in their teens when he was in his 30s.

Jones’s victory in the special election is a seismic defeat for the GOP, President Trump and Trump’s former chief strategist, Stephen K. Bannon. The result will narrow the Republican majority in the Senate to 51 to 49 — and will place that majority in greater peril during next year’s midterm elections.

GOP lawmakers excoriate FBI and special counsel

For five hours last week, Republican lawmakers delivered a reckless and sustained attack on the FBI and the special counsel, reported the Washington Post. They amplified President Trump’s claim that the FBI’s “reputation is in Tatters — worst in History” and that Robert S. Mueller III’s Russia probe, which has already secured guilty pleas from two Trump campaign officials and the indictments of two more, is part of a system that is “rigged,” “phony,” “dishonest” and using a “double standard.”

Shamefully, Republicans on the House Judiciary Committee launched an all-out assault on the special counsel and the FBI — choosing to protect Trump at the cost of Americans’ faith in the justice system and the rule of law.

Rep. Bob Goodlatte (R-Va.), the chairman, echoed Trump’s “tatters” claim and told FBI Director Christopher A. Wray that Mueller’s probe and the Clinton email probe have been tainted by “bias.”

Rep. Steve Chabot (R-Ohio) repeatedly charged that the FBI and Mueller have a “shocking” anti-Trump bias.

Rep. Jim Jordan (R-Ohio) said he has a “hunch” that “pro-Clinton, anti-Trump bias” at the FBI was behind a secret “warrant to spy on Americans associated with the Trump campaign.”

Rep. Matt Gaetz (R-Fla.) called former FBI director James B. Comey an “egomaniac rogue” and speculated that the FBI paid for the “dossier” on Trump’s activities in Russia.

Rep. Ron DeSantis (R-Fla.) speculated that anti-Trump bias led the FBI to conclude that Russia interfered in the U.S. election, and he threatened Wray: “I think you’re walking into a contempt of Congress.”

This is calumny. Mueller is a longtime Republican who was appointed FBI director by George W. Bush. He was named special counsel by Rod J. Rosenstein, also a Republican, who was appointed by Trump himself to be deputy attorney general. Comey, a Republican who served in Bush’s Justice Department, made political contributions to John McCain, Mitt Romney and other Republicans. Wray, a Republican who also gave to GOP candidates, was appointed by Trump.

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Racist court decision may be key to Moore victory in Alabama

If Roy Moore narrowly defeats Doug Jones in this week’s Senate race, he may have an obscure 1903 Supreme Court case to thank, reported Newsweek.

The case, Giles v. Harris , upheld Alabama’s successful campaign to prevent African Americans from casting ballots despite the constitutional guarantee of the right for black people to vote.

Its ramifications can be felt to this day: about 15 percent of otherwise qualified African American residents of Alabama have been barred from voting in recent elections.

In a state where 90 percent of eligible blacks vote Democratic, that can make the difference in this week’s closely watched Senate election.

Alabama’s unequal approach to voting can be traced to its 1901 constitution, drawn up to prevent black citizens from voting.

The president of the convention that drafted the constitution, John B. Knox, declared at the beginning of the meeting: “And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.”

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GateHouse: Waning respect for the rule of law

Matthew T. Mangino

GateHouse Media

December 7, 2017

Following a recent terrorist attack in Manhattan that killed eight and injured 12 President Donald Trump attacked the criminal justice system. He suggested that the criminal justice system was partially at fault for terrorist acts.

“We need quick justice, and we need strong justice -- much quicker and much stronger than we have right now. Because what we have right now is a joke, and it’s a laughingstock,” said Trump.

Last weekend President Trump tweeted, “After years of [F.B.I. Director] Comey, with the phony and dishonest Clinton investigation (and more), running the FBI, its reputation is in Tatters - worst in History! . . .”

Not to mention the president’s recent attacks against Special Counsel Robert Mueller and his team of investigators as “very bad and conflicted people” and his characterization of the Russia probe as a “witch hunt.”

Those comments from the president of the United States should alarm anyone who believes in the rule of law.

Bob Bauer, White House Counsel to President Obama, wrote recently on LawFare, “the president is successfully bringing the legal process into the discredited conspiratorial ranks of the ‘deep state.’ He is specifically stirring up suspicion of Robert Mueller, but his broadsides have a far wider focus. He has upbraided the whole system--DOJ, the FBI and the courts.”

The foundation of American democracy rests on the rule of law. Freedom endures with the notion that all men and women are on equal footing before the courts, and that our government of checks and balances protects us from corrupt institutions.

The faith that we invest in our leaders is always subject to legitimate scrutiny. However, baseless attacks on our institutions shake our faith in democracy.

In 2016, Gallup released a poll that showed only 23 percent of Americans have either “a great deal” or “quite a lot” of confidence in the criminal justice system. Such lack of confidence is unfortunate and concerning. The poll predates the current attacks on justice-related institutions.

Jason Brennan a professor at Georgetown University wrote in Time, ”[M]ost voters have no incentive to be well-informed about politics, or to correct their misinformed opinions. They have no incentive to think rationally about politics or to process information in a reasonable way. They have every incentive to indulge their biases and prejudices.”

The recipe of demagogic attacks on political institutions, and failure of voters to correct misinformation, is dangerous. Don’t take it from me. This week, former President Barack Obama warned against staying complacent in the face of rising nativism--citing the rise of Hitler as an example of what can happen if democracy is not defended--reports Crain’s Chicago Business.

“We have to tend to this garden of democracy or else things could fall apart quickly,” Obama told an audience at the Economic Club of Chicago. “That’s what happened in Germany in the 1930s, which despite the democracy of the Weimar Republic and centuries of high-level cultural and scientific achievements, Adolf Hitler rose to dominate.”

Obama continued, “Sixty million people died...So, you’ve got to pay attention. And vote.”

Whether it was attacking U.S. District Judge Gonzalo Curiel for his ethnicity or the “so-called judges’ that overruled his travel ban or his comments after the sanctuary cities decision, “This case is yet one more example of egregious overreach by a single, unelected district judge,” President Trump has displayed little respect for the rule of law.

In 1947, U.S. Supreme Court Justice Felix Frankfurter wrote, “There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”

Judges, prosecutors and investigators should be free from pressure imposed by a political party, a powerful person, a private interest, or popular opinion.

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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South Carolina police officer who gunned down Walter Scott gets 20 years

Two and a half years after millions saw a cellphone video of Michael Slager gunning down Walter Scott, the 20-year prison sentence imposed will be etched into history as one of the most significant for an American police officer involved in a fatal shooting, reported the Post and Courier.

Slager was patrolling one of North Charleston’s most hardened communities on April 4, 2015 when he stopped Scott’s car for a broken brake light. The police had long used minor traffic stops to check on residents and look for greater crimes afoot.

This stop was ordinary until Scott, 50, jumped out and ran. Slager gave chase and tried to stop him with a Taser.

But the officer said Scott fought him and grabbed the stun gun, turning the weapon against him. As they rose from the ground, Slager said he feared what Scott might do. He pulled his pistol and fired.

But bystander Feidin Santana’s video showed the Taser bouncing behind the officer, though it offered no clear view of who had been holding it. Scott is running away at the first gunshot and is still running at the eighth, which brought him down. Five of the bullets had hit him from behind.

Officers are rarely arrested in shootings, a product of how much leeway the law gives them in justifying deadly force. Even more seldom are they convicted and sentenced to lengthy prison terms, which was apparent when Slager's state murder trial last year ended with a hung jury.

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Homicides continue to fall in NYC even without 'stop-and-frisk'

In August 1952, The New York Times published the following dire statement in an editorial: The public now had evidence in statistics “solemnly guaranteed as accurate and complete by the Police Department, that there is definite reason for concern about the trend violence is taking in New York.”

Over the years, things got bloodier, more or less steadily, until 1990. The city had 2,245 murders that year, WROTE Jim Dwyer in The New York Times.

This week, the police department released statistics that showed murders have declined so much in New York City that killings are likely to be fewer than 300 for 2017. That is less than most years in the 1950s, when there were fewer people living in the city.

A mere number, the homicide statistic is of the utmost importance for what it counts, death by violence. But it is also a historic milestone for what it does not count: lives not lost. It marks a long change, one whose importance would be unmistakable for anyone familiar with the city.

Well, not everyone. You can, of course, always manage to find one New Yorker who sees things upside down. In this case, the presidential candidate Donald J. Trump managed that trick during a campaign debate last year.

“Murders are up, all right,” Mr. Trump said. “You check it.”

Wrong then, wrong now. That may not qualify as startling news, but it is welcome. As the city has grown, it has become safer and safer.

The cause of the (nonexistent) crime increase, Mr. Trump had said, was that “a judge, who was a very-against-police judge,” acting in concert with Mayor Bill de Blasio, had ended the use of stop-and-frisk.

Candidate Trump got the murder trend completely wrong, but sometimes people stumble on facts when rushing to get to a larger truth.

In this case, Mr. Trump was trying to get at an even bigger untruth.

More than 4 million innocent people were stopped and frisked between 2002 and 2012. Most were under the age of 25. The vast majority were black or Latino. Under pressure from a lawsuit, the practice was scaled back beginning in 2012 — not by the order of a judge, not by Mayor de Blasio, but by his predecessor, Michael R. Bloomberg.

Today, the police still stop and search people, but the number of such encounters has dropped by more than 98 percent since its peak in 2011 — down to 12,404 in 2016, and about the same pace this year. Six years ago, 685,724 were stopped and searched — 605,328 of whom had done nothing wrong, and many thousands who had done nothing worse than carry marijuana.

Along the way, a federal judge did say that the city’s wholesale stop-and-frisk practices violated the Constitution. But contrary to the cries of Mr. Bloomberg, the police commissioner and some editorial writers, further curtailing this approach did not make the city more dangerous. In fact, the opposite happened. That is unambiguously great news.

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Malcolm Jenkins writes about JLWOP for NBC News

NFL player Malcolm Jenkins wrote recently for NBCNews about juvenile life without parole.  Here are excerpts: In 2012, the Supreme Court ruled that life sentences without parole should only be given to juveniles in the rarest of circumstances. Last year, it ruled that those individuals currently serving life sentences without parole should have their cases reviewed. Currently, more than 2,100 people who were sentenced as children are eligible to have their sentences reviewed and earn a second chance. Approximately 300 of these people are from the city of Philadelphia alone.

In its decision, the Supreme Court said that juvenile life without parole, where kids are sentenced to literally die in prison, should only be given to teens found to be “irreparably corrupt.” But in reality, according to the Fair Punishment Project, the “irreparably corrupt” child is a myth. We have to stop locking up kids and throwing away the key. According to human rights groups, America is the only country that sentences kids to life without parole.

The infuriating irony here is that the kids who have received life without parole sentences are, in many ways, the young people who needed our help the most. According to study conducted by the Sentencing Project, 79% of this population witnessed violence in their homes growing up, 40% were enrolled in special education classes, nearly half experienced physical abuse, and three-quarters of the girls had experienced sexual abuse.

America failed them once. Today, these kids deserve a second chance. Contrary to the super-predator rhetoric utilized by politicians in the past to justify locking up kids for life, adolescents really are different from adults — in almost every way. Their brains are underdeveloped, they struggle with judgment, they are susceptible to peer pressure.

For too long, we have depicted our youth, especially our black youth, as fully developed adults who are a lost cause. But they can change. These are not the soulless “super-predators” the media scared its readers with in the 70s and 80s. These are children. Studies show that even those accused of the most serious crimes age out of crime.

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How times have changed: 'President unable to obstruct of justice'

President Donald Trump’s personal lawyer is arguing that, as the nominal head of federal law enforcement, the president is legally unable to obstruct justice. However, it wasn’t long ago that another senior Trump lawyer: Attorney General Jeff Sessions argued the exact opposite, reports Politico.

In 1999, Sessions – then an Alabama senator – laid out an impassioned case for President Bill Clinton to be removed from office based on the argument that Clinton obstructed justice amid the investigation into his affair with White House intern Monica Lewinsky.

“The facts are disturbing and compelling on the President's intent to obstruct justice,” he said, according to remarks in the congressional record.

Sessions isn’t alone. More than 40 current GOP members of Congress voted for the impeachment or removalof Clinton from office for obstruction of justice. They include Senate Majority Leader Mitch McConnell – who mounted his own passionate appeal to remove Clinton from office for obstruction of justice – Senate Judiciary Committee Chairman Chuck Grassley and Senate Intelligence Committee Chairman Richard Burr, who was a House member at the time.

In all, 17 sitting senators supported the obstruction of justice charge against Clinton in 1998 and 1999.

“The chief law officer of the land, whose oath of office calls on him to preserve, protect and defend the Constitution, crossed the line and failed to defend the law, and, in fact, attacked the law and the rights of a fellow citizen,” Sessions said during Clinton’s trial in the Senate, two months after he was impeached by the House. “Under our Constitution, equal justice requires that he forfeit his office.”

Trump’s personal lawyer John Dowd argued in an interview with Axios on Monday that the “president cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”

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What are the odds?: Today SCOTUS hears case to make illegal gambling legal

This blog usually deals with crime and punishment. Today, we’ll focus on an effort to do away with a law that has landed a lot of people in jail over the years. It is strange, sports betting is illegal with a few exceptions (Nevada), yet newspapers around the country, television sports show and websites talk about “the line.”  How much a given team must win or lose by to win a bet.

New Jersey Gov. Chris Christie gambled big-time five years ago when he signed a law authorizing sports betting at casinos and racetracks and dared anyone to "try to stop us," reported the USA Today.

That's exactly what college and professional sports leagues and the federal government have done, thanks to a succession of court rulings upholding a 25-year-old federal law that prohibits gambling on sports outside Nevada and three other states with small sports lotteries.

But Christie has one last shot before leaving office next month. Today the Supreme Court will hear oral arguments in his case and could decide, as many court-watchers predict, that the ban violates states' rights. Such a ruling could open the floodgates to sports betting in any state willing to regulate it.

According to the new National Law Journal Supreme Court Brief, the American Gaming Association estimates that Americans bet $150 billion on sports annually, and only 3 percent of those bets are legal. If the Supreme Court strikes down the federal law that prohibits sports betting in most places, the industry will only grow, with sports betting spreading fast among revenue-thirsty states.

The dynamics of the case make for interesting bedfellows, as Bloomberg’s Greg Stohr notes: “All it took to bring Donald Trump and the National Football League together was New Jersey Governor Chris Christie and his Supreme Court bid to legalize sports gambling. The NFL, a target of the president’s Twitter ire over national anthem protests, is banding together with the administration to fight the outgoing governor.”

Oh, if you'd like to bet on which justice asks the first question you can find the odds here.

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Louisiana public defenders broke, defendants temporarily unrepresented

It has become an annual ritual in Louisiana: Nearly every winter, the state’s public defenders run out of money, reported The Marshall Project. Last year, 33 of the state’s 42 local indigent defense offices cut staff or placed thousands of poor defendants on a wait list. The New Orleans public defender’s office began refusing clients, leaving hundreds to sit in jail without representation.

This year, there is another wait list. At least 11 Louisiana defendants facing the death penalty — including five who have already been indicted — have no defense team and may not have one until new money becomes available in July. The list is likely to grow. In Louisiana, all first-degree murder defendants face execution unless a prosecutor explicitly decides otherwise.

The latest crunch in Louisiana emerged from a law passed last year to try to patch up the system. The legislation, signed by Democratic Gov. John Bel Edwards in June 2016, required Louisiana’s state-level indigent defense agency to spend more on the overloaded local defenders — the ones who handle regular felony and misdemeanor cases — by spending less on lawyers in death penalty cases. The law successfully delivered about $5 million in additional cash to indigent defense offices around the state, including a $1.5 million boost for New Orleans, which has since ended its hiring freeze and reduced its wait list to essentially zero.

But funding for capital defenders was cut to $5.5 million from $8.5 million in just a year.

“They robbed Peter to pay Paul,” said Jay Dixon, chief defender for the Louisiana Public Defender Board, which is scheduled to hold a statewide meeting Thursday to discuss the waitlisted capital defendants. “We’re still in crisis; it’s just a different crisis. And now they can’t shift any more money around, so we could be facing an even greater crisis next year.”

Louisiana is the only state in the nation whose public defenders are funded primarily by traffic tickets, supplemented by a modest state contribution. In part because of changes in police practices, ticket revenue has declined since 2010, causing the annual budget gap

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GateHouse: SCOTUS hears blockbuster 4th Amendment cellphone case

Matthew T. Mangino

GateHouse Media

December 1, 2017

Chief Justice John Roberts summed up the issue in this week’s blockbuster Fourth Amendment argument before the U.S. Supreme Court with this simple comment, “The whole question is whether the information is accessible to the government” without a warrant.

The Fourth Amendment requires the government to obtain a search warrant pursuant to a standard known as “probable cause” before obtaining an individual’s private information.

The Fourth Amendment protects the right of people to be “secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Where does electronic data fall when considering “houses, papers and effects?” Do the police have to get a search warrant in order to obtain cellphone location information that is routinely collected and stored by wireless providers?

The case before the Supreme Court this week, Carpenter v. United States, involved a series of armed robberies at Radio Shacks in Michigan and Ohio to, ironically, get cellphones.

The police arrested several men, one of whom confessed that he was part of a group that had robbed nine stores within the previous year. The suspect identified Timothy Carpenter. At Carpenter’s trial, prosecutors used data from his cellphone provider to put him at or near the scene of each of the robberies.

The Supreme Court has, in recent years, ruled in favor of the defense on major cases concerning how criminal law applies to new technology. In 2012, the court held that a warrant is required to place a GPS tracking device on a vehicle. In 2014, the court ruled that police need a warrant to search a cellphone that is seized during an arrest.

In Carpenter’s case, the police obtained an order of court under the Stored Communications Act, which does not require a showing of probable cause. The law authorizes release of records when there are “specific and articulable facts showing that there are reasonable grounds to believe” the records are “are relevant and material to an ongoing criminal investigation.”

A search warrant would have required probable cause, a more stringent standard than provided under the Stored Communications Act.

During this week’s argument, Justice Sonia Sotomayor noted that cell phones have become an “appendage” for people in the modern era, reported CNN. “Most Americans, I still think, want to avoid Big Brother,” she said. “They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time.”

The concern does not stop with the collection of location data. The capacity to store an enormous amount of data has long term implications for individual privacy. Data is routinely collected on web-surfing, shopping, dating, dining, social-interests and travel -- documenting nearly every act of a cellphone user. This new era of technology demands new protections against search and seizure of personal digital property.

Are the courts best suited to make policy on the protection of digital privacy? Courts address issues on a case-by-case basis, it may take years for the Courts to develop a coherent body of law on the protection of digital privacy, suggests David Von Drehle in the Washington Post.

Legislative bodies are best equipped to develop policy on this issue. If done properly, and not as a knee-jerk reaction, Congress or individual state legislatures can methodically study the issue and come up with a comprehensive policy for dealing with privacy in this new age.

Some of the legislative work is already underway. A bipartisan group of senators recently introduced the USA Rights Act to overhaul aspects of the National Security Agency warrantless internet surveillance program.

The bill, led by Senators Ron Wyden (D) and Rand Paul (R), would end the warrantless “back door” searches of American calls, emails, texts and other communications. This is a start, but it only scratches the surface when it comes to delineating the protections that should be afforded digital privacy in the 21st century.

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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