Saturday, August 19, 2017

GateHouse: Lincoln and ‘the better angels of our nature’

Matthew T. Mangino
GateHouse Media
August 19, 2017
Hanging on the wall in my office is a painting by Francis Bicknell Carpenter — “First Reading of the Emancipation Proclamation of President Lincoln.” The 1864 painting depicts Abraham Lincoln sitting in his office with members of his cabinet. It is a stark reminder today of “the better angels of our nature.”
Those men with Lincoln — Edwin M. Stanton, Secretary of War; Salmon P. Chase, Secretary of the Treasury; Gideon Wells, Secretary of the Navy; Caleb B. Smith, Secretary of the Interior; William H. Seward, Secretary of State; Montgomery Blair, Postmaster General and Edward Bates, Attorney General — were, as Doris Kearns Goodwin proclaimed, a “Team of Rivals.”
The Emancipation Proclamation was an executive order issued by Abraham Lincoln in the fall of 1862 that took effect on Jan. 1, 1863. In the wake of the unrest in Charlottesville, Virginia, it is important to remember what Lincoln did over 150 years ago.
Some say as a draft of the Emancipation Proclamation sat in his desk, Lincoln wrote a letter to Horace Greeley the editor of the New York Tribune, “My paramount object in this struggle is to save the Union ... If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.”
Initially, Lincoln’s advisors were not in support of the Emancipation Proclamation. When Lincoln first proposed the idea many of his cabinet secretaries were concerned that the Proclamation was too radical.
During the meeting depicted in Carpenter’s painting, Secretary of War Stanton, brought up the idea of arming the freed slaves. Lincoln was thinking of something bigger. He rose, turned to his Cabinet and told them that he had prepared a draft of a proclamation that would free all of the slaves in the Confederate States.
Stanton and Bates supported Lincoln’s idea. Seward and Chase were reluctant and Blair was opposed. Welles and Smith apparently remained silent.
Seward suggested waiting for a Union victory to legitimize the Union’s authority to issue such a far-reaching order. The Battle of Antietam was the “victory” Lincoln was looking for. He issued the Proclamation just five days after the battle.
Chase wrote a letter to Carpenter in 1866, an apparent effort to revise history, noting that he and Stanton appear symbolically on Lincoln’s right in the painting, having “thoroughly endorsed and heartily welcomed the measure,” and the cabinet members who had at first “doubted, or advised delay, or even opposed” the proclamation appear on Lincoln’s left.
The Emancipation Proclamation freed the slaves in the 10 Confederate States still fighting the Civil War. Interestingly, the Proclamation did not outlaw slavery or free the slaves in the Union states that still permitted it.
The proclamation also authorized the enlistment of freed slaves in the Union Army, increasing the Union’s available manpower.
Maybe most important for the war effort, the Proclamation also prevented European forces from intervening in the war on behalf of the Confederacy. The proclamation made the abolition of slavery a goal of the war. Most European countries had abolished slavery and were squeamish about slavery in the Confederacy.
As Lincoln hoped, the Proclamation swung foreign popular opinion in favor of the Union and ultimately achieved his goal at saving the Union.
President Lincoln anticipated that the Emancipation Proclamation would be the most important aspect of his legacy. “I never, in my life, felt more certain that I was doing right, than I do in signing this paper,” he declared. “If my name ever goes into history it will be for this act, and my whole soul is in it.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino
To visit the Column CLICK HERE

Thursday, August 17, 2017

Civil forfeitures on the down swing

Today, three states—North Carolina, New Mexico and Nebraska—have abolished civil forfeiture entirely, reports the Institute for Justice.

Since 2014, 24 states and the District of Columbia have reformed their civil forfeiture laws:
Minnesota (the state enacted reforms in both 2014 and 2017)
Michigan (the state enacted reforms in both 2015 and 2017)
Utah (the state enacted reforms in both 2015 and 2017)

Fourteen states now require a criminal conviction for most or all forfeiture cases:
North Carolina
Missouri (enacted in 1993)
California (enacted in 1994) (excluding cash over $40,000)
Oregon (enacted in 2000)
New Mexico
New Hampshire
Ohio (excluding property valued at over $15,000)
Iowa (excluding property valued at over $5,000)
In a similar vein, Utah bans forfeiture for cases where the claimants are found not guilty and are acquitted.
To read more CLICK HERE

Wednesday, August 16, 2017

Former President Obama’s tweet on Charlottesville is is the most liked tweet in Twitter’s history

Former President Barack Obama’s tweet on the violence fueled by neo-Nazi’s is Charlottesville has become the most liked tweet of all-time, reported the Washington Post.
Since leaving office, Obama has commented on major events or controversies, including the terrorist attack in Manchester, England, and Sen. John McCain's brain cancer diagnosis. He did so again on Saturday, after the deadly violence in Charlottesville.
“No one is born hating another person because of the color of his skin or his background or his religion … People must learn to hate, and if they can learn to hate, they can be taught to love … For love comes more naturally to the human heart than its opposite,” Obama said, quoting former South African president Nelson Mandela in tweets.
The first tweet, which shows a picture of Obama smiling at four children, has been retweeted more than 1.1 million times and liked 3.2 million times as of as of this writing.
The message became the most liked tweet of all time, surpassing Ariana Grande's response to the deadly terrorist attack after her concert in Manchester. It also ranks No. 7 among the most retweeted tweets according to Favstar, a tweet tracking site.
To read more CLICK HERE

Tuesday, August 15, 2017

Some states want to protect people who 'accidentally' run-over protesters

It the wake of what appears to be an intentional act to kill and maim counter-protester by a white supremacist in Charlottesville, VA, it is interesting to note that state lawmakers in at least six GOP-controlled states have pushed for laws this year that would shield drivers who hit protesters.
The bills are part of a wave of anti-protest proposals introduced since the rise of the Black Lives Matter and anti-Trump resistance movements, reported ThinkProgress.
Two Republican lawmakers in North Dakota started the trend in January when they introduced a bill that would protect motorists who hit pedestrians blocking traffic, as long as the consequences are unintentional.  State Rep. Keith Kempenich (R) said he authored the legislation after his mother-in-law was swarmed on a roadwayby people protesting the construction of the Dakota Access pipeline.
“A driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway may not be held liable for any damages,” the proposed law read.
The bill was rejected in a 41-50 vote in February, but not before it inspired similar legislation in other red states across the country.
In Tennessee, lawmakers proposed a measure to protect drivers from civil liability after a motorist ran into safety workers at a rally against President Trump’s travel ban in Nashville. Police said that five or six protesters ended up on top of an SUV before the driver, who was not arrested, left the scene. The bill failed in a House committee in March.

To read more CLICK HERE

Monday, August 14, 2017

40 years ago: The Summer of Sam

Forty years ago was the Summer of Sam in New York City. David Berkowitz—the Son of Sam--a postal employee from Yonkers killed six and wound seven. He used a .44 caliber revolver and he not only terrified the city—he became a legend. 
According to Irish Central, there had been much speculation that the “Son of Sam” nickname referred to a former US soldier perhaps, but Berkowitz said that the "Sam" was his former neighbor Sam Carr. Berkowitz claimed that Carr's black Labrador retriever Harvey was possessed by an ancient demon and that it issued irresistible commands that Berkowitz must kill people.
New York in 1977 felt like a city under siege. The City of New York was broke. There were 1,919 murders. The subways had wall-to-wall graffiti and more robbers than cops, the potholes were never filled, and in certain areas of the city—like the South Bronx and even what is now lower Columbus Avenue in Manhattan—it looked like Berlin at the end of World War II.
Son of Sam was arrested 40 years ago this month. A woman, Cacilia Davis, saw Berkowitz return to his car his arm held stiffly by his side, holding the gun he had just used for his final killing.
He stared her down. Disconcerted, she took off for home and heard shots as Berkowitz fired after her. Terrified, she did not report the incident until four days later. When the police investigaed, it led them to Yonkers and Berkowitz.
Unlike his terror, his surrender did not end with a bang, but rather a whimper. He was arrested on August 10th outside his apartment without incident. New York’s summer of fear and agony was over.
To read more CLICK HERE

Sunday, August 13, 2017

This is the age of the plea bargain

This is the age of the plea bargain, writes Emily Yoffe in The Atlantic. here are excepts from her exceptional recent column.
Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”
Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial is avoided, and everybody benefits. But in recent decades, American legislators have criminalized so many behaviors that police are arresting millions of people annually—almost 11 million in 2015, the most recent year for which figures are available. Taking to trial even a significant proportion of those who are charged would grind proceedings to a halt. According to Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law School, the criminal-justice system has become a “capacious, onerous machinery that sweeps everyone in,” and plea bargains, with their swift finality, are what keep that machinery running smoothly.
Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.
As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”
According to the Prison Policy Initiative, 630,000 people are in jail on any given day, and 443,000 of them—70 percent—are in pretrial detention. Many of these defendants are facing minor charges that would not mandate further incarceration, but they lack the resources to make bail and secure their freedom. Some therefore feel compelled to take whatever deal the prosecutor offers, even if they are innocent.
Writing in 2016 in the William & Mary Law Review, Donald Dripps, a professor at the University of San Diego School of Law, illustrated the capricious and coercive nature of plea bargains. Dripps cited the case of Terrance Graham, a black 16-year-old who, in 2003, attempted to rob a restaurant with some friends. The prosecutor charged Graham as an adult, and he faced a life sentence without the possibility of parole at trial. The prosecutor offered Graham a great deal in exchange for a guilty plea: one year in jail and two more years of probation. Graham took the deal. But he was later accused of participating in another robbery and violated his probation—at which point the judge imposed the life sentence.
What’s startling about this case, Dripps noted, is that Graham faced two radically different punishments for the same crime: either be put away for life or spend minimal time behind bars in exchange for a guilty plea. In 2010, the Supreme Court ruled, in Graham v. Florida, that the punishment Graham faced at trial was so cruel and unusual as to be unconstitutional. The Court found that a juvenile who did not commit homicide cannot face life without parole.
Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me. The result, according to the late Harvard law professor William J. Stuntz, who wrote extensively about the history of plea bargains in The Collapse of American Criminal Justice (2011), is a system that has become “the harshest in the history of democratic government.”
Plea bargaining didn’t exist in colonial America. Law books, lawyers, and prosecutors were rare. Most judges had little or no legal training, and victims ran their own cases (with the self-evident exception of homicides). Trials were brief, and people generally knew one another. By the 19th century, however, our modern criminal-justice system was coming into its own: Professional prosecutors emerged, more defendants hired lawyers to represent them, and the courts developed more-formal rules for evidence. Trials went from taking minutes or hours to lasting days. Calendars became clogged, which gave judges an incentive to start accepting pleas. “Suddenly, everybody operating inside the system is better off if you have these pleas,” Penn’s Stephanos Bibas told me.
The advantages of plea bargains became even clearer in the latter part of the 20th century, after the Supreme Court, under Chief Justice Earl Warren, issued a series of decisions, between 1953 and 1969, that established robust protections for criminal defendants. These included the landmark Gideon v. Wainwright andMiranda v. Arizona decisions, the former of which guaranteed the Sixth Amendment right to counsel in felony cases (since expanded to some misdemeanor cases), and the latter of which required that police inform those in their custody of the right to counsel and against self-incrimination. The Court’s rulings had the inevitable effect of making trials lengthier and more burdensome, so prosecutors began turning more frequently to plea bargains. Before the 1960s, according to William J. Stuntz, between one-fourth and one-third of state felony charges led to a trial. Today the figure is one-twentieth.
The legal system provides few rules and protections for those who take a deal. In what has been described as one of the Court’s earliest plea-bargain decisions, Brady v. United States (1970), the justices found that guilty pleas were acceptable as long as certain conditions were met, among them the following: Defendants had to have competent counsel; they had to face no threats, misrepresentations, or improper promises; and they had to be able to make their plea “intelligently.”
This seemed eminently fair. But crime had already started to increase sharply. The rise provoked a get-tough response from police, prosecutors, and legislators. As the rate of violent crime continued to accelerate, fueled in part by the crack epidemic that started in the ’80s, the response got even tougher. By the 1990s, the U.S. had entered what Donald Dripps calls “a steroid era in criminal justice,” which continued even though violent crime peaked by 1992 and began its now-historic decline. In the late 20th century, legislators passed mandatory-minimum-sentence and “three strikes” laws, which gave prosecutors an effective bludgeon they could use to induce plea bargains. (Some “three strikes” laws result in life imprisonment for a third felony; hundreds of people in California received this punishment for shoplifting. California reformed its three-strikes legislation in 2012 to impose such punishments only for serious or violent felonies.)
The growth of the system took on a life of its own. “No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”
To read more CLICK HERE

Saturday, August 12, 2017

GateHouse: A first step: Decriminalizing status offenses

Matthew T. Mangino
GateHouse News
August 11, 2017
Being a kid is difficult. For many young teens, misbehaving can be part of normal development. Teens need to explore and take risks to understand social and personal boundaries. This process is not new -- it has been around since time immemorial.
Why are we criminalizing the “normal” behavior of teenagers?
In 2014, according to a new study by the Vera Institute, there were more than 100,000 cases in the U.S. in which kids were sent to court for status offenses. A status offense is conduct that is only illegal by virtue of the person’s status as a minor.
Status offenses include such things as truancy, running away, curfew violations, underage drinking and the catch-all offense of incorrigibility -- repeatedly defying parents or teachers. The term status offense implies that a kid has committed a crime, just by virtue of age. Yet, they are anything but criminal. Kids -- especially teenagers -- are known to act up or disobey adults, and engaging in status offense behaviors is not uncommon.
These are not actions that most people imagine would land a kid in the juvenile justice system. Unfortunately, everyday teenagers nationwide are handcuffed, taken to court, or locked up for status offenses.
The Vera Institute study, “Just Kids: When Misbehaving is a Crime” explores the behaviors of young people. The behaviors may stem from a variety of factors that can range from normal adolescent development to underlying problems that need closer attention.
However, families, schools and communities frustrated with rebellious kids turn to the justice system. The study points out, unfortunate, but often occurring scenarios when dealing with teens: School officials calling on law enforcement when kids fight in class; police officers taking runaway kids to detention facilities when there is nowhere else to take them; and parents seeking out courts to get help for children they perceive as out of control.
This process of moving disruptive students from the principal’s office to the courthouse is known as the school-to-prison pipeline. When young people are criminalized for their behavior in schools, exposed to law enforcement -- and the rest of the criminal justice system -- at an early age, they become more likely to interact with that system in the future. According to the U.S. Department of Education’s Civil Rights Data Collection during the 2011-2012 school year, schools referred approximately 260,000 students to law enforcement, and approximately 92,000 students were arrested on school property during the school day or at school-sponsored events.
Such a punitive approach has detrimental consequences. According to the Vera Institute study, “it criminalizes kids for misbehaviors that pose little to no risk to public safety and may punish them for developmental changes and service needs that are beyond their control.”
When it comes to the school building, “You have to differentiate the security issue and the discipline issue,” Michael Nash, the former presiding judge of juvenile court in Los Angeles and former president of the National Council of Juvenile and Family Court Judges told the New York Times. “Once the kids get involved in the court system, it’s a slippery slope downhill.”
Some communities have realized the ill effect of criminalizing status offenses. Local courts have adopted diversion programs for offenses such as underage drinking or disorderly conduct. However, the continued, and increasing, presence of law enforcement in schools and the eagerness of school administrators to push school discipline in the direction of the police need to be addressed.
The study summed it up this way, “The misuse of courts for status offense cases is not inevitable. Changing the nation’s approach will require a concerted effort from all the agencies that play a role in working with kids.” A laudable goal and one that is not out of reach.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
To visit the column CLICK HERE

Friday, August 11, 2017

Trump supporter and Nazi sympathizer Jeffrey Lord out at CNN

CNN severed ties with political commentator, and President Trump apologist, Jeffrey Lord  after he tweeted “Sieg Heil!” His use of that Nazi salute was “indefensible,” the network said, but--What took you so long? 
Since joining CNN as an analyst in August 2015, Lord has become well-known for being one of the network’s most vocal supporters of President Donald Trump and for his outlandish, racist comments. The tweet, which he directed at Media Matters for America’s Angelo Carusone and claimed later was merely “mocking Nazis and Fascists,” is only the latest of such remarks.
To read more CLICK HERE 

Thursday, August 10, 2017

Vera Institute: Status offenses push juveniles into criminal justice system

Skipping school, running away from home, violating curfew: these are not actions that most people imagine would land a kid in the juvenile justice system. And yet, every year, thousands of kids across the United States are handcuffed, taken to court, or locked up for just these misbehaviors—often referred to as status offenses—which are only illegal because of a kid’s status as a minor, according to a new report by the Vera Institute. 
Anyone under the age of 18 is subject to status offense charges, but teenagers between the ages of 14 and 17 comprise most status offense cases, so those are the kids referred to in this report.
These behaviors may stem from a variety of factors that can range from normal adolescent development to underlying problems that need closer attention. But when families, schools, and communities don’t know what else to do, they turn to the justice system. 
Common scenarios that play nationwide include: school officials calling on law enforcement when kids fight in class; police officers taking runaway kids to detention facilities when there is nowhere else to take them; and parents seeking out courts to get help for children they perceive as out of control.Such a punitive approach has detrimental consequences: it criminalizes kids for misbehaviors that pose little to no risk to public safety and may punish them for developmental changes and service needs that are beyond their control. It also disproportionately pushes kids into the system who are already underserved and more likely to be subject to biases and harsher discipline—specifically girls, kids from poor communities, kids of color, and lesbian, gay, bisexual, transgender, and gender non-conforming (LGBT/GNC) kids. 
The justice system is not designed to support kids as they grapple with developmental changes or to address the underlying issues that may be causing them to “act out.” Instead, court involvement—and the incarceration that may follow—increases kids’ risk of engaging in future delinquent (criminal) behaviors and moving deeper into the system.
As policymakers and practitioners across the country look to reduce mass incarceration, status offenses demand attention as early and improper points of entry into the juvenile justice system, and potentially the criminal justice system more broadly. 
This special report offers a primer on status offenses, including what they are and why the current approach to handling these cases is not working. It also highlights the key factors that have contributed to the cycle of kids being pushed into the system and what can be done to shift away from this punitive approach.   
To read the report CLICK HERE

Wednesday, August 9, 2017

Oregon legislature looks to decriminalize hard drugs, Governor expected to sign

On July 6th, the Oregon legislature voted to decriminalize cocaine, heroin, methamphetamine, oxycodone, LSD, and ecstasy, reported The Hill. While reform of prohibitions on both medical and recreational use of marijuana has gained popularity in states across the country, most people remain skeptical of the benefits of reducing or eliminating criminal penalties for harder drugs. Yet, rolling back prohibitions on harder drugs is likely to bring greater benefits than those produced by the relaxation of marijuana prohibitions precisely because the harder drugs are more dangerous.
Oregon House Bill 2355, which would become state law if Governor Kate Brown signs it as expected, decriminalizes the possession of small amounts of the drugs for people who do not have more than two prior drug convictions or any felony convictions. If it becomes law, Oregon will become the first state to decriminalize these hard drugs.
In 1973, Oregon became the first state to decriminalize possession of small amounts of marijuana and, in 2015, it became the 4th state to legalize the sale of marijuana for recreational use. Today, eight states and the District of Colombia have legalized recreational use and most states have passed some version of decriminalization or removed prohibitions on the use of medical marijuana.
To read more CLICK HERE

Tuesday, August 8, 2017

PA Bill would prevent talking on cell phone while driving

Pennsylvania drivers would no longer be allowed to talk on a hand-held phone while they operate a vehicle if a recently introduced House bill is passed, reported Lancaster Online.
House Bill 1684 would prohibit anyone 18 and older from talking on the phone while driving, unless they use hands-free accessories. Drivers under 18 wouldn't be allowed at all, even with hands-free accessories.
A violation would result in three points on a driver's license and a fine of $50 for the first offense, and $100 for each subsequent offense.
Exceptions are included in the bill for emergency situations, such as calls to law enforcement officers and first responders. The full list is outlined in the bill.
To read more CLICK HERE

Monday, August 7, 2017

PLW: A Long and Torturous Journey Through the Criminal Justice System

Matthew T. Mangino
The Legal Intelligencer/PLW
August 3, 2017
Qu'eed Batts will soon be scheduled for his third sentencing hearing. His long and torturous journey through the criminal justice system has placed him right smack in the middle of a judicially driven realignment of juvenile punishment.
Batts was convicted of first-degree murder for a gang-related killing he committed as a 14-year-old. He was sentenced to life without parole in 2007. His case ultimately made it to the Pennsylvania Supreme Court where it was remanded to the trial court for resentencing.
In 2014, Batts was again sentenced to life in prison without the possibility of parole. His case made its way back to the Pennsylvania Supreme Court where last month the court said, "We are now in the undesirable position of yet again having to remand Batts' case for resentencing."
That line from the court's opinion vastly understates everything leading up to the court's decision in Batts. In Commonwealth v. Batts, No. 45 MAP 2016, the Pennsylvania Supreme Court unanimously ruled that the state must bear a high burden—establish a juvenile is permanently incorrigible—before the court can impose a sentence of life without parole.
The origins of this decision can be traced back nearly 30 years. In 1988, the U.S. Supreme Court decided Thompson v. Oklahoma, 487 US 815 (1988). At the age of 15, William Thompson was tried as an adult, convicted of first-degree murder and sentenced to death.
The high court held that the execution of a person under the age of 16 violated the Eighth Amendment's prohibition against "cruel and unusual punishment." The court noted the uniform ban among all relevant state statutes against the execution of an offender under the age of 16. The court held executing an offender under 16 would violate the "evolving standards of decency that mark the progress of a maturing society."
The high court for the first time acknowledged that age of an offender was a disqualifying factor for purposes of the death penalty. One year later, the court was not inclined to expand the age for disqualification. In Stanford v. Kentucky, 492 US 361 (1989), the Supreme Court refused to ban the execution of 16- and 17-year-olds. The Supreme Court ruled, "With respect to American society, there is no national consensus regarding the imposition of capital punishments on 17- or 16-year-old individuals."
In the 1990s with the now debunked "superpredators" and increasing violence in urban areas, things got tougher for youthful offenders in Pennsylvania.
In 1995, Pennsylvania's newly elected governor, Tom Ridge, called for a special legislative session on crime. Pennsylvania fell in line with many other states as Ridge convinced the legislature to overhaul the juvenile justice system with the mantra "adult time for adult crime."
As a result, a fundamental change in the law made it easier to charge juveniles as adults. In fact, certain violent offenses require prosecutors to charge juveniles as adults pursuant to 42 Pa.C.S.A. 6302. At the time, conviction of first- or second-degree murder in Pennsylvania meant a mandatory sentence of life in prison without the possibility of parole.
This contributed to Pennsylvania's distinction of having more than 500 people in prison for life for killings committed as juveniles—the most in the nation.
It took 16 years for the U.S. Supreme Court to revisit the death penalty and juveniles. In 2005, the Supreme Court banned the execution of juveniles in the landmark decision Roper v. Simmons, 543 US 551 (2005).
In a 5-4 opinion delivered by Justice Anthony Kennedy, the court ruled that standards of decency have evolved in the prior 16 years so that executing minors is "cruel and unusual punishment." The majority cited a consensus against the juvenile death penalty among state legislatures, and its own determination that the death penalty is a disproportionate punishment for minors.
However, Kennedy went beyond the issue of evolving standards of decency. Kennedy wrote in Roper that juveniles are cognitively immature and therefore less culpable. The brain development argument sent the issue of juvenile punishment in a whole new direction.
The juvenile criminal court system is distinctly different from the adult criminal court system. The juvenile system is not punitive. The focus has always been on rehabilitation and is oriented toward the treatment of young offenders. Adult court is more about retribution and incapacitation. Sure there are some young offenders who are not amenable to treatment and are so dangerous that only a lifetime of incarceration would protect the public. How do you differentiate between a juvenile who should be in prison and one who belongs in treatment? Kennedy wrote in Roper, "It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." He went on to write that it is impermissible to render an opinion about antisocial disorders in offenders under age 18.
The evolution of juvenile punishment continued. In 2010, the U.S. Supreme Court in Graham v. Florida, 560 US 48 (2010), struck down the punishment of life without the possibility of parole for juveniles who committed crimes other than homicide. In that case, though only 13 states had abolished the punishment, the court nevertheless found a national consensus against the punishment because an additional 26 states did not actually have any juveniles serving a life sentence.
Then came Miller v. Alabama, 567 US 46 (2012). The high court ruled that a mandatory sentence of life in prison without the possibility of parole imposed upon a juvenile violated the Eighth Amendment.
The decision, however, did not outlaw life sentences for juveniles. Prosecutors in Pennsylvania and across the country could still pursue life sentences for juvenile killers. The court ruled that state lawmakers cannot force a judge to impose a life sentence on a juvenile.
Mandatory sentences prevent judges from exercising discretion. "It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him," Justice Elena Kagan wrote for the majority. "We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders," Kagan wrote. However, the court did not address whether the decision was retroactive. For Pennsylvania the question remained, what does the state do with the 500 juvenile lifers already in prison?
The legislature addressed the issue of juvenile sentencing for first- and second-degree murder after Miller. The new law provided at least 25 years for those who killed when 14 and younger, and at least 35 years for defendants who were between ages 15 and 18. Life without parole was banned for juveniles convicted of second-degree murder.
Juvenile lifers in Pennsylvania were dealt a blow in 2013 by the Pennsylvania Supreme Court in Commonwealth v. Cunningham, 83 A.3d 1 (2013), a 4-3 decision finding Miller was not retroactive.
According to Cunningham, Miller only applied to cases that were pending on appeal at the time Miller was decided in 2012. The majority opinion written by Justice Thomas G. Saylor found, "Here, applying settled principles of appellate review, nothing in appellant's arguments persuades us that Miller's proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of 18 at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller's announcement."
Then in 2016 hope was restored. The U.S. Supreme Court decided Montgomery v. Louisiana, 577 US ___ (2016). The high court expanded Miller saying that the decision must be applied retroactively to an estimated 1,200 to 1,500 inmates—500 of whom were in Pennsylvania—from states where the courts had decided that Miller was not retroactive.
Henry Montgomery was 17 years old when he shot and killed a deputy sheriff. Montgomery was sentenced to life in prison without the possibility of parole.
Kennedy, writing for the 6-3 majority, held that Montgomery and other similarly situated offenders were entitled to resentencing or parole consideration.
The new decision appeared to go beyond the actual scope of the Miller ruling according to the SCOTUSBlog. Montgomery provided that in the future a newly convicted juvenile will be able to show, at the time of sentencing, that he is not beyond rehabilitation. The court declared that life without parole—not just mandatory life without parole—is always unconstitutional for a juvenile unless he is found to be "irreparably corrupt" or "permanently incorrigible."
That brings us to Batts. The Pennsylvania Supreme Court found Miller and Montgomery establish a presumption against life without parole sentences for juveniles and that the burden is on prosecutors to prove beyond a reasonable doubt that a young person is incapable of rehabilitation before such a sentence is issued. Justice Christine Donohue, who authored the decision, stated that when Batts is re-sentenced he must be provided "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."
The court concluded "There is a presumption against the imposition of a sentence of life without parole for a defendant convicted of first-degree murder committed as a juvenile. The commonwealth must give reasonable notice of its intention to seek a sentence of life without the possibility of parole. To rebut the presumption, the commonwealth has the burden to prove, beyond a reasonable doubt, that the juvenile offender is permanently incorrigible and thus unable to be rehabilitated."
The tally sheet for juvenile lifers in Pennsylvania looks like this—according to the Pennsylvania Department of Corrections—there have been 516 juvenile lifers in the prison system, two have died, 40 have been released, 93 have been resentenced and 56 have been paroled. Batts is now 26 years old and spends his days at SCI Coal Township. He will soon get another chance at someday being a free man. 
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. Contact him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Saturday, August 5, 2017

GateHouse: Not all speech is protected

Matthew T. Mangino
GateHouse Media
August 4, 2017
The woman found guilty in the sensational homicide-by-text case has been sentenced to prison. Twenty-year-old Michelle Carter was found guilty in June by a Massachusetts judge of involuntary manslaughter in the 2014 suicide of her boyfriend, Conrad Roy III. Carter repeatedly encouraged Roy to commit suicide by asphyxiation via text message.
Soon after her conviction some lawyers warned of the impending demise of free speech. Matthew Segal, the head of the Massachusetts branch of the American Civil Liberties Union criticized the Court’s decision according to the Boston Globe, tweeting that Carter’s conviction “expands Massachusetts’ criminal law and imperils free speech.”
Before we grab our torch and pitchfork, let’s review the history of the First Amendment right to free speech.
The First Amendment was ratified, along with nine other amendments to the U.S. Constitution referred to as the Bill of Rights. The First Amendment reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Those 45 words lay the groundwork for some fundamental rights -- freedom of religion, freedom of speech, freedom of the press and the right to assemble.
In 1919, U.S. Supreme Court Justice Oliver Wendell Holmes established the clear-and-present-danger test: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent.” This is the opinion where Holmes declared the now-famous example of unprotected speech -- falsely crying “fire” in a crowded theater.
So, clearly not all speech is protected under the First Amendment. The First Amendment does not simply say that if words are involved, you cannot be held responsible for their consequences.
In 1969, the U.S. Supreme Court further clarified unprotected speech when it held that speech can be prohibited if it is directed at inciting imminent lawlessness and if it is likely to produce such action.
Carter’s crime is not new. Her arrest and trial has been a big story because it involved relatively new technology -- texting. There is a long history of legal precedent laying out when speech can be considered a crime.
In 2011, a Minnesota nurse, William Melchert-Dinkel, was convicted of two counts of assisted suicide. He was encouraging people in Internet chat rooms to commit suicide. He sought vulnerable people contemplating suicide and encouraged them by explaining what methods worked best, that suicide was a viable option and that they would be better off in heaven. In some instances, he falsely entered into suicide pacts with his quarry.
The Minnesota judge said that state law made it a crime to participate in speech that intentionally advised, encouraged or aided another in taking their own life.
The case was complicated and rife with First Amendment concerns. The Minnesota Supreme Court overturned the convictions in 2014. He was subsequently convicted a second time and sentenced to 360 days in jail.
The judge presiding over Carter’s trial agreed with prosecutors that her speech was not protected. The judge was not so concerned with the encouragement of suicide, but rather her recklessness once she realized Roy was in danger.
“She admits in ... texts that she did nothing: She did not call the police or Mr. Roy’s family” after hearing his last breaths during a phone call ... “and, finally, she did not issue a simple additional instruction: Get out of the truck.”
Yesterday she was sentenced to 2 ½ years in prison.

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

Friday, August 4, 2017

Mueller impanels grand jury in Russian probe

Special counsel Robert Mueller has impaneled a grand jury as part of his investigation into possible collusion between President Donald Trump’s campaign and Russia in last year’s election, sources tell the Wall Street Journal.
According to the Huffington Post, the report follows Mueller stepping up the probe by hiring several high-powered lawyers. Reuters reported earlier this week that Greg Andres, a former Justice Department attorney who specialized in corruption and bribery cases, joined the investigation.
Grand jury subpoenas related to a meeting attended by Trump Jr., the president’s eldest son, and a Russian lawyer have been issued, sources told Reuters. Trump Jr. agreed to the meeting after being promised information that would “incriminate” his father’s opponent, Hillary Clinton, and was part of the Russian government’s effort to benefit Trump.
A source familiar with the matter told Reuters that Mueller was investigating whether anyone at the meeting or affiliated with the Trump campaign encouraged Russia to release damaging material it had collected on Clinton. Another told the outlet that Mueller was trying to determine if Trump had been informed of the meeting ahead of time, or if he was briefed after it took place. 
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Thursday, August 3, 2017

PA conviction overturned, witness lied and DA knew it

An appeals court has overturned the 1998 conviction of a New York man in a fatal Pennsylvania shooting, saying a witness lied, and prosecutors knew it, resulting in an unfair trial, reported The Associated Press.
Erie County, Pennsylvania prosecutors must now decide whether to retry 48-year-old Vance Haskell in the 1994 slaying of Darrell Cooley at Jethroe's Steakhouse in Erie or let Haskell go free from the life sentence he's serving.
Haskell was convicted of first-degree murder after the woman claimed she saw the Rochester, New York man shoot at Cooley 11 times with an Uzi-like machine gun.
Haskell's attorney argued before the 3rd U.S. Circuit Court of Appeals in March that she lied by telling a jury she got nothing in return for her testimony. They contend Erie County prosecutors helped her get probation for an unrelated retail theft conviction in a neighboring county.
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Wednesday, August 2, 2017

Oklahoma Commission: 'Serious flaws in capital sentencing system'

The Oklahoma Death Penalty Commission Report concluded that there were various serious and systemic flaws in Oklahoma’s capital sentencing system, reported The City Sentinel.
Included at the end of the Commission’s report is a separate study entitled “Race and Death Sentencing for Oklahoma Homicides, 1990-2012,” which examines “the possibility that the race of the defendant and/or victim affects who ends up on death row (Report at 211, 214).
Among the study’s key findings was the fact that “homicides with white victims are the most likely to result in a death sentence.” (Id. at 217.)
This study states that, in Oklahoma, criminal defendants – like Jones – who are accused and convicted of killing white victims are nearly two times more likely to receive a sentence of death than if the victim is nonwhite.
For homicides involving only male victims, a death sentence is approximately three times more likely in cases involving male victims when that victim is white, the report notes. 

In the document filed on June 23with the Oklahoma Court of Criminal Appeals, Julius’s attorneys believe that the race study shows that his death sentence is unconstitutional.
A more recent study published in the North Carolina Law Review in 2016 titled “Untangling the Role of Race in Capital Charging and Sentencing in North Carolina,” 1990-2009 by Catherine Grosso and Barbara O’Brien, associate professors at Michigan State University’s College of Law also finds, “The white victim effect was the clearest and strongest finding in this study analysis,” Grosso says. “Race still matters in the criminal justice system, and it shouldn’t.
According to the Death Penalty Information Center over 75 percent of the murder victims in cases resulting in an execution were white, even though nationally only 50 percent of murder victims generally are white.

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Tuesday, August 1, 2017

Toobin: 'A government of laws not of men'

Jeffrey Toobin wrote in The New Yorker that [President] Trump now seems set on terminating [Robert] Mueller’s investigation, which he could attempt to do by directing the head of the Justice Department (whoever that winds up being) to fire him.
This, of course, would be reminiscent of President Nixon’s determination, in October, 1973, to fire Archibald Cox, the Watergate special prosecutor. But a dismissal of Mueller would be worse. Nixon clashed with Cox over what was at least an arguable matter of principle—specifically, whether the prosecutor had the right to subpoena the White House tapes. 
Trump wants Mueller gone simply because he doesn’t want to be investigated. An order to fire Mueller would be an abuse of power, but one in keeping with the way that Trump has conducted his Presidency. On the Saturday night that Cox was fired, he said, “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people” to decide. So it remains today.
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Monday, July 31, 2017

Trump's Cuba policy a solution in search of a problem

Last week, I spent a couple days in Havana, Cuba on a people-to-people trip.  President Trump's new Cuba policy is a solution in search of a problem. As the Trump administration continues to work on rules to implement its new Cuba policy, Treasury's Office of Foreign Assets Control issued clarifications on the U.S. interim policy, reported the Miami Herald.
When the President announced his new policy for the island in Miami on June 16, OFAC said that the only category of authorized travel by U.S. travelers that would be affected were individual people-to-people trips. Trump said such trips would be prohibited because travelers have used that category to disguise trips that are purely for tourism, which the U.S. prohibits.
But in its new “Frequently Asked Questions” publication, OFAC says: “The new policy will also impact certain categories of educational travel as well as travel under support for the Cuban people.” It didn’t elaborate.
The new FAQ also made it clear that people traveling to Cuba legally under permitted travel categories wouldn’t have to apply for licenses. Until the new rules are published, U.S. travelers may continue to visit Cuba under 12 categories of permissible travel that were outlined during the Obama administration.
Why wouldn't America want to have a relationship with a country 90 miles off its shore?
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Sunday, July 30, 2017

NYPD uses DNA to connect people with guns

In an effort to crack down on gun crime, the NYPD has started swabbing every gun it recovers for DNA. To handle the workload, the Office of the Chief Medical Examiner has been staffing up, trying to add nearly 75 new scientists and support staff, New York Daily News.
Some legal and forensic experts said that DNA testing, while more sophisticated than ever, is not foolproof.
The science used to test small DNA samples isn't perfect, and critics note the results are not infallible.
"What we've seen in the last few years are real efforts to push the boundaries of DNA evidence," said Clinton Hughes, an attorney with the Legal Aid Society of New York's DNA unit. "DNA does not necessarily mean that there's going to be a just result, or an accurate result in a particular case."
Some civil liberty groups have also raised concerns about the expansion of DNA collection by local law enforcement agencies.
DNA that is deemed "abandoned" — left on the rim of a soda can or the end of a cigarette, for example — can legally be picked up by police and entered into a local database. People whose genetic information is stored in the database are almost never aware of it, legal experts said.
Expanded DNA testing on guns is part of a larger effort New York is making to crack down on illegal firearms and gun violence. In January 2016, police formed a 200-officer gun-violence suppression division to focus on illegal firearms, shootings, and gangs. In Brooklyn, there are two courtrooms dedicated to expediting gun cases. Other boroughs are expected to follow suit.
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Saturday, July 29, 2017

Police contact with the elderly on the rise, here are some horrible interactions

As a result, older people and law enforcement officers are crossing paths more frequently, recent data suggests — sometimes with terrible consequences, reported the New York Times.
Consider arrest rates. From 2002 to 2012, the rate fell by 11 percent among those ages 18 to 64, according to federal data analyzed by researchers at the University of California, San Francisco.
But the arrest rate rose by 23 percent for people over 55. It rose even more markedly — by 28 percent — among those over 65, more than 106,000 of whom were arrested in 2012, the last year for which statistics are available.
“These contacts are occurring more frequently,” said Dr. Brie Williams, a geriatrician and director of the university’s Criminal Justice Aging Project.
Arrests constitute only one measure of involvement, of course. The police are asked to find people with dementia who wander and to bring them home. They stop in for safety checks when family or doctors worry about elders’ welfare.
Especially when people have dementia, “they may be disrupting a neighborhood or engaging aggressively with someone they don’t know, and the police end up being called,” Dr. Williams said. Nursing home staff members, too, may call 911 when they feel unable to handle belligerent patients.
Here are some horrible interactions between the elderly and law enforcement:
At a residence for older adults in San Francisco last summer, Carol King momentarily left a common sitting area. When Ms. King returned, she found that another resident had taken her chair, a nurse who witnessed the episode later reported. She grabbed the usurper’s wrist.
Though staff members intervened promptly and nobody appeared injured, the other resident (who also had dementia) called 911 to say she had been attacked. Soon, Ms. King’s son, Geoffrey, was summoned and four police officers arrived.
Over objections from staff members and her son, the officers decided to place Ms. King on an involuntary psychiatric hold, which allows a 72-hour detention when an officer believes someone is unable to care for herself or poses a danger to herself or others.
As they searched and handcuffed Ms. King and placed her in a patrol car, “she started crying,” Mr. King recalled.
At the Psychiatric Emergency Services department at San Francisco General Hospital, a psychiatrist found Ms. King “calm and cooperative,” showing no evidence of psychiatric illness, and released her after seven hours after she was detained.
■ A county sheriff’s deputy in Minneapolis, Kan., used a Taser on a 91-year-old nursing home resident with Alzheimer’s who refused to get into a car for a doctor’s visit.
■ After a 65-year-old in San Jose, Calif., was arrested and charged with trespassing, a judge — informed that the man had Alzheimer’s — dismissed the charge. But deputies at the jail released him before a friend arrived to pick him up, and he wandered onto a highway, was hit by a car and killed.
■ In Bakersfield, Calif., a 73-year-old man with dementia was walking in his neighborhood late at night when a woman he approached noticed something in his pocket that she thought might have been a gun. When the police arrived and told him to raise his hands, he ignored their shouts, walked toward them and was shot and killed. The object in his pocket proved to be a crucifix.
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Friday, July 28, 2017

GateHouse: Nevada shines light on parole, it is not pretty

Matthew T. Mangino
GateHouse Media
July 24, 2017
Last week, the Nevada Board of Parole Commissioners clearly demonstrated why the Nevada Legislature should send the seven commissioners packing, abolish the commission and create a system that won’t let offenders pander and parole decision-makers wither.
O.J. Simpson’s parole hearing opened the door to a process of decision-making that, for many, had been unknown. Simpson’s brash denials of responsibility and minimization of his involvement in the conspiracy to commit robbery, kidnapping and an assortment of other serious crimes code violations is an affront to the criminal justice system and especially parole decision-making.
About 6-months ago, I wrote in this column that it is time to rethink parole. Simpson’s parole hearing convinced me that change is the right course.
In February, I wrote that although there are criteria and policies to guide parole members on making release decisions, the process is different from any other decision made in the criminal justice system.
As a former parole board member, having spent a 6-year term on the nine-member Pennsylvania Board of Probation and Parole, I was dismayed with the matter-of-fact approach of the Nevada Commission. The decision to parole Simpson was a foregone conclusion before anyone entered the hearing room.
How else could you explain the Commission’s failure to challenge Simpson? He essentially said “I didn’t know what was going down.” Simpson whined that he was duped by his co-conspirators — he never saw a gun and never robbed anybody.
Why is it important for an offender to take responsibility? If an inmate has spent years in prison and continues to minimize his involvement in the crime or boldly assert he did nothing wrong, what happens the next time that parolee is faced with a decision that includes crime as an option?
In Simpson’s case, he had no misconducts, completed programming — albeit not what the department of corrections had recommended — and was considered a low risk. So what was the reason to conduct the interview? He wasn’t challenged, he used the opportunity to tell the commission, and the public, what a good guy he is and what a great reputation he has among members of the prison community and the community at large.
Then the board made it a point that the “incident” in 1994 — the wrongful death of Nicole Simpson and Ron Goldman — would not be considered by the board. Wow, Simpson was found liable in a civil court in California for their deaths and the parole commission isn’t going to consider it?
According to the Commission website, in Nevada, “Parole is an act of grace by the state ... and release from confinement after serving a portion of their sentence is discretionary.” If a paroling authority is not going to ask probing questions of potential parolees and explore their background and history then why go through the motions.
As I 6 months ago, the parole process can be streamlined. Parole boards should focus their time and resources on the inmates that really matter.
One option would be to split parole consideration into three categories. First, those inmates who have complied with all requirements for parole — programming, good behavior, institutional support and are assessed a low risk. As in Simpson’s case he should have presumptively been paroled, without review by the parole board.
Then there are those unlikely to be paroled — refusing programming, behavior problems and no institutional support. Those inmates are automatically refused without seeing the board.
That leaves time for those inmates on the bubble, maybe a high risk or past behavior history. Those inmates should be interviewed by the board — probed, cajoled and challenged. Determining whether those parolees will succeed may be the difference between life or death for some unsuspecting member of society.
I am not suggesting Simpson should stay in prison, but to give him a forum and a tap on the head didn’t provide justice for anyone.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
To visit the column CLICK HERE

Texas executes man for slashing woman's throat

The 16th Execution of 2017
TaiChin Preyor, a Texas man, was executed on July 27, 2017 after asking for a last-minute stay on grounds that his former lawyer relied on Wikipedia for research on his case, reported UPI.
Preyor was killed by lethal injection in Huntsville, Texas after the Supreme Court rejected his plea for a stay in his death sentence.
A Bexar County jury in 2005 found him guilty of capital murder for the death of 24-year-old Jami Tackett. Preyor slashed Tackett's throat and injured Jason Garza in a drug-related attack at an apartment in San Antonio in 2004.
Preyor said he stabbed Tackett out of self defense because she attacked him when he went to her apartment to buy drugs.
Earlier this week, the Texas Court of Criminal Appeals and the Texas Board of Pardons and Paroles voted against stopping his execution. On Thursday, the 5th U.S. Circuit Court of Appeals denied his bid, but his legal team plans to appeal to the U.S. Supreme Court.
Preyor's lawyers said his former lawyer worked with a disbarred lawyer on his case and used Wikipedia for research. They also accuse the former lawyer of double billing Preyor's family and the court.
The California attorney who specialized in real estate, had never tried a case in Texas.
"It appears she relied on Wikpedia, of all things, to learn the complex ins and outs of Texas capital-punishment law," a motion by Preyor's current lawyers reads.
"Her files included a copy of the Wikipedia page titled, 'Capital punishment in Texas,' with a post-it note stating 'Research' next to highlighted passages of 'habeas corpus appeals' and 'subsequent or successive writ applications.'"
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Ohio carries out first execution in 3 1/2 years

The 15th Execution of 2017
Ronald Phillips, a child killer, was put to death on July 26, 2017 in Ohio's first execution in 3½ years after an uproar over the reliability of the lethal injection drugs used by the state, reported The Associated Press.
Phillips was condemned to die for the 1993 rape and slaying of his girlfriend's 3-year-old daughter, Sheila Marie Evans. He was given a three-drug combination never used in Ohio before.
As he lay on the execution table, he apologized to the child's aunt and half-sister, who were there to watch him die for his crimes.
"I know that Sheila Marie didn't deserve what I did to her," he said.
Donna Hudson, the victim's aunt, said: "God forgave him, but, I'm sorry, I don't think I can."
Phillips' case could open the way for the full resumption of capital punishment in Ohio, which has 26 executions scheduled through 2020, the next on Sept. 13.
"I have confidence that we are going to continue to do this in a dignified, peaceful, humane way, and I'm committed to do that," Ohio Prisons Director Gary Mohr said just before Phillips' execution.
It was Ohio's first execution since 2014, when an inmate gasped and snorted repeatedly during a procedure that took an unusually long 26 minutes and involved a never-before-tried drug combination.
Gov. John Kasich reacted by putting all executions on hold. The delays continued when the state had trouble finding new supplies of drugs and death row inmates sued over Ohio's proposed new three-drug combination, saying it would amount to cruel and unusual punishment.
The drugs include midazolam, a sedative used in some problematic executions in Ohio, Arkansas and Arizona. The inmates were backed up by 15 pharmacology professors who said midazolam is incapable of inducing unconsciousness or preventing serious pain.
Phillips lost his final appeal on Tuesday when the U.S. Supreme Court denied his requests for more time to pursue the challenge to the new drug combination or his claim that he deserved mercy because he was only 19 at the time of the crime.
He died about 10 minutes after giving his final statement. He showed no signs of distress. His chin dropped and his belly heaved slightly as the lethal drugs were administered.
Allen Bohnert, a public defender who worked on the case, contended Phillips' execution was not problem-free, it just looked that way. He said the executioners accelerated administration of a paralytic to mask Phillips' pain.
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