Friday, March 31, 2017

Testilying: The art of manipulating the criminal justice system

Changing stories told on the stand after convictions is so common, court watchers have a name for it: "Testilying." A stark reality of the criminal justice system is that people lie. They lie to stay out of jail, to get out of jail, to curry favor with cops, the Philadelphia Inquirer reports. Police sometimes lie, too. Untangling who is lying in criminal cases can be “absolutely daunting,” said lawyer Richard Scheff, who recalled wrestling with the issue when he was a federal prosecutor. "There can be any number of reasons why people change their statements."
Scientific advances in crime solving — especially DNA testing — have freed the wrongfully convicted and proven guilt. Almost as a rule, experts say, courts don’t like to reopen old cases without compelling scientific evidence. Jennifer Creed Selber, former chief of the Philadelphia District Attorney's office’s homicide unit, acknowledged witness recantations are a “pervasive” problem. She believes witnesses usually recant because they fear retaliation from defendants. “If we attempted to prosecute every witness that perjures themselves, it would be a completely unworkable and impossible situation.”
Five years ago, the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University's law school started a database of criminal exonerations since 1989. The National Registry of Exonerations has catalogued over 2,000 cases.
DNA evidence spurred many, but the growing number of exonerations has led to a “profound change” in the perception of convictions, said Samuel Gross, senior editor of the registry.
“What the DNA cases showed everybody,” he said, “is that a lot of criminal convictions that no one had thought to think about were wrong.”
More than half of his registry’s cases involve perjury and/or false accusations.
Much lying stems from misconduct by police and prosecutors desperate to solve crimes, researchers say. “Witnesses are pressured, threatened, subjected to violence, offered secret deals such as reduced charges in the case at hand or for other crimes, or otherwise coerced or persuaded to falsely accuse the defendant,” a 2013 registry report concluded.
James McCloskey, the founder of Centurion Ministries, a New Jersey-based organization that has helped exonerate more than 50 prisoners since 1980, said about three dozen witnesses have recanted their testimony in Centurion cases.
“They want to reconcile themselves, really help right a terrible wrong,” McCloskey said, but they fear getting in trouble. It can take years to get a witness to publicly acknowledge the lie — and then additional years to actually win an exoneration.
To read more CLICK HERE

Wednesday, March 29, 2017

Scarface and 'Two Gun': Infamous bootlegger and his lawman brother

Richard J. Hart had busted bootleggers during Prohibition, gotten into gunfights with killers, and saddled up his prized horse, Buckskin Betty, and tracked thieves and fraudsters across the vast prairies of the half-tamed Great Plains, reported the Omaha World Herald.
He had forged friendships with the Omaha and Winnebago Tribes. He had made powerful enemies. He had met and protected the president of the United States.
He had shot well, punched first, posed for countless newsmen, strummed the mandolin and said precious little. He refused to talk about where he had come from, how he appeared one day in tiny Homer, Nebraska, why his own wife had never met a single relative of his.
He dressed like he was trying to prove something: the white hat, a bow tie, riding britches, riding boots and, hung off his belt, a pair of shined-up, pearl-handled pistols.
He called himself Richard Hart, or sometimes RJ, or sometimes Richard James, but it didn’t much matter. For decades, Nebraskans knew him by his nickname: Two Gun.
It was Two Gun Hart who walked into a Chicago courtroom, an aging lawman now, jowly and paunchy, looking out of place and nervous as the cameras flashed and an overflow crowd leaned in to hear his words. He told the judge he couldn’t much see anymore — cataracts and an old police injury. And then he made a single, simple request: Can I please wear my hat on the stand?
The question made perfect sense, because Richard “Two Gun” Hart, the man raising his right hand and pledging to tell the whole truth, had spent a lifetime carefully crafting his image, or concealing it, depending on which way you wanted to eyeball it.
He was a decorated war veteran, a fearless Prohibition agent, a skilled investigator and Homer’s longtime town marshal — and yet he was also something else, something he had successfully hidden since the day he disappeared from Brooklyn at age 15.
If he seemed too good to be true, that’s because he was. But, somehow, his whole truth seemed even more fictional than his fiction.
A lawyer asked: What is your name?
Richard J. Hart, he answered.
No, no. What name were you born with?
He spelled his first name for the jury: V-I-N-C-E-N-Z-O.
And then he uttered his family name in public for the first time in nearly a half-century.
The decorated Nebraska law man was the older brother of famed Chicago bootlegger Al Capone.
To read more CLICK HERE

Tuesday, March 28, 2017

Delaware wants the death penalty back

Legislators from both parties say they will try to re-institute the death penalty in Delaware this year with a measure soon to be introduced, reported The News Journal.
“Delaware has a long history of applying capital punishment cautiously, judiciously, and infrequently,” said State Sen. Dave Lawson. “These proposed changes would raise the imposition of such a sentence to a new level, removing what the court found objectionable and strengthening protections afforded defendants.”
The state Supreme Court last year ruled the capital punishment law unconstitutional because it allowed a judge, not a jury, to determine that "aggravating circumstances" made a crime heinous enough to deserve a death sentence. There are 22 of those aggravating factors, such as crime committed against a police officer, crimes in which hostages are taken or if the crimes that are "outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind."
The Court's 4-1 decision also faulted the law for allowing juries to find those aggravating circumstances without a unanimous vote, using a standard of proof that was too low.
A bipartisan group of legislators unveiled the "Extreme Crimes Prevention Act," which would change the law to address those concerns, effectively reinstating the punishment. It would require that juries unanimously decide that the aggravating circumstances merited a death sentence, and requires proof of those circumstances "beyond a reasonable doubt."
It also would require the judge and jury to weigh "mitigating factors," which would suggest the death penalty was unjust, against the "aggravating factors."
To read more CLICK HERE

Monday, March 27, 2017

The Crime Report: Cutting Bail Costs in Half ‘Could Save Billions’

Matthew T. Mangino
The Crime Report
March 22, 2017
On any given day in the United States there are about 450,000 people in jail who have not been convicted of anything. According to the Pretrial Justice Institute, they cost taxpayers about $38 million a day.
Those 450,000 people have been charged with a crime, and all—except for a small percentage facing life in prison—have a right to be free. These men and women sit in jail because they do not have the money to get out, pending trial.
Bail is an age-old tool that allows judges to release defendants pending trial by requiring them to post a certain amount of money as a way of ensuring they’ll return to court. To make bail, defendants post collateral, pay the amount in cash or get a bail piece—insurance policy—from a bail bond company, which typically charges a 10 percent fee.
Let’s do the math.  Mr. Smith gets arrested for assault.  The court sets his bail at $1,500.  The bail bond company needs $150 to post Smith’s bail.  Smith doesn’t have it, so he sits in jail for 75 days awaiting trial.  Smith pleads guilty and is sentenced to time served and released.
Because Mr. Smith didn’t have $150, taxpayers shelled out $85 a day for a whopping $6,375.
Bail serves two purposes: To guarantee that defendants appear for court; and to protect the public from those who are a potential threat.  Proponents of cash bail say the money to post bail often comes from family members, and serves as a deterrent to fleeing.
Bail is not punitive. Although violent crime rates are at historic lows, the Trump Justice Department has made violent crime a top priority.  Attorney General Jeff Sessions would do well to be smart, as well as tough, on crime.  A first step might be setting aside funds for states who commit to reexamining pretrial detention.
recent study in Maryland found that people arrested in the state from 2011 to 2015 paid combined bail premiums of more than $256 million. Those who use the services of a bail bond company do not get back any of the money paid.  More than 25 percent of that money was paid by people who were acquitted or never faced trial.
Last fall, Maryland Attorney General Brian E. Frosh told members of the House of Delegates that judges and court commissioners must take into account the accused’s ability to pay before setting bail. According to the Baltimore Sun, Frosh said that if bail is out of reach for a defendant, the courts would find that unconstitutional.
Two years ago, New Jersey voters changed the state constitution to implement a new bail system that focused on expanding assessments of defendants to determine whether they should be released.  The New Jersey Bail Reform and Speedy Trial Act went into effect in January.  The new law will rely on a computerized risk assessment tool to make bail decision and is expected to reduce costs and significantly reduce the state’s jail population.
In New York City, Mayor William de Blasio earmarked $17.8 million to supervise 3,000 defendants in the community who are awaiting trial. The “supervised release” initiative permits judges to release defendants to a supervisory program that allows defendants to remain at home with their families and continue working while awaiting trial.
Those awaiting trial represent 63 percent of the total jail population.  Less than four out of 10 men and women sitting in county and local jails are actually serving a sentence. Those sitting in jail not serving a sentence drain about $14 billion a year from public coffers.
America’s bail system has become a central issue in the fight to reverse mass incarceration. According to NBC News, in courthouses, statehouses and ballot boxes across the country, civil rights lawyers and progressive policymakers are working to curb the practice of demanding money in exchange for freedom before trial.
“The nation needs to reform its bail system. But it’s not as simple as saying, ‘Eliminate cash bail,’ ” Kevin Burke, a Minnesota district judge and past president of the American Judges, Association told Stateline.
According to Burke, judges only get a few minutes to assess a defendant’s case, and often judges set bail without knowing the full circumstances.
“The fear (they have) is ‘I’m going to let somebody go and they’re going to go out and do something terrible, or they won’t come back, so I’ll set bail,.’”  Burke said.
The current bail system denies freedom to thousands of people who are presumed innocent but are financially challenged. Those who sit in jail are at risk of losing their jobs, their homes, and their families.
Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in America to spend about $1 trillion, according to the Pretrial Justice Institute on pretrial incarceration, which amounts to about six percent of the Gross Domestic Product.
According to the White House Council of Economic Advisers, the use of bail has exploded in the past two decades, driving a 59 percent rise in the number of un-convicted jail inmates.
Correcting America’s bail crisis is not out of reach.  This isn’t about being tough on crime.  It’s about being fair.  For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.
For taxpayers the issue is just as compelling.
If the cost of pretrial detention could be cut in half, taxpayers could save $7 billion a year. In these challenging economic times those dollars are difficult to ignore.

.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino. He welcomes readers’ comments.
Visit The Crime Report CLICK HERE

Sunday, March 26, 2017

PLW: US Supreme Court Limits Pennsylvania's 'No-Impeachment' Rule

Matthew T. Mangino
Pennsylvania Law Weekly
March 23, 2107
An age-old Pennsylvania legal tradition—the inability to upset a jury verdict regardless of the content or subject matter of a jury's internal deliberations—has been overturned by the U.S. Supreme Court.
The decision came in the case of a Colorado man Miguel Angel Peña-Rodriguez, who found out after his 2007 conviction that a juror said he thought that Peña-Rodriguez was guilty of sexual assault because he was Mexican and that "Mexican men take whatever they want."
The decision in Peña-Rodriguez v. Colorado, Docket No. 15-606, decided March 6, involved the review—or lack thereof—of a Colorado jury verdict. The trial court acknowledged the juror's apparent bias, but refused to take any action, stating that the Colorado Rules of Evidence prohibit a juror from testifying regarding the validity of a verdict if it relates to statements made during deliberations. This is commonly referred to as the "no-impeachment" rule.
Peña-Rodriguez's case made its way to the U.S. Supreme Court. The high court found when a juror makes a clear statement indicating that he relied on racial stereotypes to convict a defendant, the Sixth Amendment requires an exception to the no-impeachment rule.
Every state has some version of the no-impeachment rule. Pennsylvania was the only state, other than Colorado, that had addressed the no-impeachment rule and declined to recognize an exception for racial bias.
In Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786 (2012), Roland William Steele was convicted of three counts of first-degree murder and sentenced to three separate death sentences.
Steele argued that his due process rights and right to a fair and impartial jury were violated by the racial prejudice of one of the jurors, his opinions about Steele's guilt, and deliberative discussions that were held prior to formal deliberation.
One juror told Steele's legal team that another juror's racial bias seeped into the jury room from the inception of the trial. The juror stated in his declaration that "early in the trial one of the other jurors commented on the race of the defendant. He also noted the race of three victims and stated that, on that basis alone, the defendant was probably guilty," adding that Steele should "fry, get the chair or be hung."
The general rule regarding post-verdict jury testimony is codified in Pennsylvania Rule of Evidence 606(b), the no-impeachment rule which states: "Upon an inquiry into the validity of a verdict ... a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions in reaching a decision upon the verdict or concerning the juror's mental processes in connection therewith, and a juror's affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."
The Pennsylvania Supreme Court held, "Despite Steele's contentions, the exception to the general no-impeachment rule is not implicated here. The exception only applies to outside influences, not statements made by the jurors themselves. ... The influence here was internal, not from outside sources. Once the verdict was entered, the jurors ... became incompetent to testify regarding any internal discussions or deliberations."
Steele's three death sentences were affirmed.
There may now be a glimmer of hope for Steele. Pennsylvania's unbending application of the no-impeachment rule has been overturned. Justice Anthony M. Kennedy wrote in Peña-Rodriguez, "A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts."
Kennedy conceded that the Supreme Court has ruled previously—when there were allegations of jurors abusing drugs or alcohol or having a pro-defendant bias—that the confidentiality of the jury process was too important to allow a judge's investigation.
In Tanner v. United States, 483 U.S. 107 (1987), the U.S. Supreme Court found that a defendant's right to a competent jury is not violated by the application of the no-impeachment rule to allegations of jurors sleeping and using drugs and alcohol during trial and deliberations.
However, the court has drawn the line at allegations of racial, religious, or other bias by jurors infringing on a defendant's constitutional right to a fair and impartial jury. "The same cannot be said about racial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice," Kennedy wrote.
"The nation must continue to make strides to overcome race-based discrimination," Kennedy continued. "The progress that has already been made underlies the court's insistence that blatant racial prejudice is antithetical to the functioning of the jury system."
Kennedy said there must be a "clear statement" that indicates a juror "relied on racial stereotypes or animus to convict a criminal defendant" before the judge could consider a defendant's claim. According to the Washington Post, Kennedy said it has not been shown to occur very often in states that already allow such inquiry.
The court did not address what procedures a court must follow when deciding a motion for a new trial based on juror testimony of racial bias or the appropriate standard for determining when such evidence is sufficient to require that the verdict be set aside.
Those matters have been left to individual states to work out. That process—leaving it up to the states—has not met with much success in modern Supreme Court jurisprudence. Namely, Atkins v.Virginia, 536 U.S. 304 (2002), where it is still unclear how states are to determine intellectual disability; and Miller v. Alabama, 567 U.S. ___ (2012), where the high court only recently clarified whether the decision was retroactive.
Whether Steele's glimmer of hope amounts to anything may now be up to the Pennsylvania legislature. •

Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

Saturday, March 25, 2017

GateHouse: A criminal conviction shouldn’t have a lifetime of consequences

Matthew T. Mangino
GateHouse Media
March 25, 2017
There is an often repeated maxim in the American criminal justice system relating to punishment, "He paid his debt to society." That maxim is obsolete. Why? A man or woman who has been convicted of a crime carries that debt forever — figuratively and, in many instances, literally.
In Pennsylvania, the bipartisan "Clean Slate" bill would automatically seal the record of an offender after staying crime-free for 10 years with the intent of making it easier for people convicted of nonviolent misdemeanors to find jobs and housing. The bill is the first of its kind in the nation, reported the Buck County Courier-Times.
While the bill is admirable it does not go far enough. To make a real impact on recidivism, a bill in Pennsylvania, or any other state, must include all criminal offenses, not just nonviolent offenses.
In 2009, Alfred Blumstein and Kiminori Nakamura of Carnegie Mellon University wrote in "Redemption in the Presence of Widespread Criminal Background Checks," that there comes a time after a period of crime-free behavior that an ex-offender is no more likely to commit a crime than the general population.
Their analysis was based on a statistical concept called the "hazard rate." The hazard rate is the probability, over time, that someone who has stayed crime-free will be rearrested. For a person who has been arrested in the past, the hazard rate declines the longer the former offender remains crime-free.
The study examined the hazard rate for 18-year-olds when they were arrested for a first offense of one of three crimes — robbery, burglary and aggravated assault. For robbery, the hazard rate declined to the same arrest rate for the general population of same-aged individuals at age 25.7, or 7.7 years after the robbery arrest. After that point, the probability that the former offender would commit another crime was less than the probability of other same-aged individuals in the general population.
Ten years crime-free should entitle an offender, violent or nonviolent, to sweep the slate clean. Leaving an individual's criminal record intact long after he or she remains no more of a threat than anyone else, is simply nonsense.
Easy access to criminal records has increased the stigma of crime, creating formal disabilities — disenfranchisement, housing restrictions, government entitlement ineligibility, statutory employment prohibitions and even deportation.
This is a big deal. An estimated 65 million U.S. adults have criminal records and they often confront barriers that prevent even the most qualified from securing employment, according to the National Employment Law Project. A single criminal conviction should not tarnish a life otherwise spent abiding the law.
The public appears ready to look at alternatives. According to Public Opinion Strategies, a polling company, 87 percent of voters in Philadelphia suburbs said they believe the state "should break down barriers" to help offenders get out from under their perpetual debt to society.
The actual financial debt that comes with a conviction comes in two forms, both equally devastating. First, the costs associated with fines, court costs, administration fees and supervision fees. Former offenders may be saddled with big fines, and state surcharges which may be difficult, or impossible, to pay. Those costs may be around long after a sentence is served.
Those fees begin to add up — the offender falls behind and ends up in jail for failure to pay. The offender loses her job, again, and the process starts all over — a form of indentured servitude.
Second, a criminal record makes it difficult to get a job, public assistance, college loans, public housing, professional licensing and a host of other collateral consequences of a criminal conviction. The financial consequences are obvious and failure is inevitable.
A criminal conviction shouldn't have a lifetime of consequences.
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 and follow him on Twitter @MatthewTMangino
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Friday, March 24, 2017

Arkansas official asks Rotary Club members to witness next month's 8 executions in 10 days

A shortage of required citizen witnesses to watch eight lethal injections over a 10-day period next month prompted the state prison director  to call on Rotary Club members to volunteer, reported the Arkansas Democrat-Gazette.
Citizen witnesses are there to verify that the individual executions are carried out according to law. A volunteer must be at least 21 years old, an Arkansas resident, have no felony criminal history and have no connection to the inmate or to the victim.
"The last times these were set, we actually did not have enough people volunteer," Department of Correction Director Wendy Kelley told Little Rock Rotary Club 99 members. "You seem to be a group that does not have felony backgrounds and are over 21. So if you're interested in serving in that area, in this serious role, just call my office."
The eight executions are scheduled two at a time beginning April 17 and ending April 27.
Department of Correction spokesman Solomon Graves said he does not have a current count on the number of citizen witnesses who have signed up for the role. Kelley is making informal inquiries to find more volunteers, he said.
"Depending on the response received, further recruitment may not be necessary," Graves said.
The state's death penalty law, A.C.A. 16-90-502, Section 3, requires that the prison director procure no fewer than six and no more than 12 citizen witnesses for each execution. Kelley must determine that witnesses meet the requirements and that they do not present a security risk.
To read more CLICK HERE

Thursday, March 23, 2017

DOC Sec. Wetzel: Mandatory minimums don't work

Pennsylvania Secretary of Correction John E. Wetzel and Director of Planning, Research & Statistics Dr. Brett Bucklin published the following commentary in the Harrisburg Patriot-News:
Most Pennsylvanians would agree that ensuring public safety is what they want most from the criminal justice system. 
When it comes to law and order we are all willing to pay to be safe, and we recognize that decisions about public safety must never be made based simply on balancing budgets. 
At the same time, many Pennsylvanians are uninformed about a current policy discussion underway in our criminal justice system, which is mostly going unnoticed and hides under the false guise of improving public safety. 
The debate is over mandatory minimum sentencing. 
Several mandatory minimum sentencing laws were found to be unconstitutional by the Pennsylvania Supreme Court in 2015. 
Legislation to reinstate these laws are right now being considered by the General Assembly, which might be fine if there was any evidence that mandatory minimum sentences enhanced public safety. 
But the record is clear that they don't. 
Statewide crime numbers are only available through 2015, but show that the violent crime rate in Pennsylvania remained the same in 2015, while both property and drug crime rates declined. 
Local statistics from Philadelphia and Harrisburg reveal that crime rates for major crime types dropped in these cities during 2016. 
Crime in Pennsylvania is lower now than it was in 1970, before mandatory minimums existed. 
If mandatory minimums are supposed to enhance public safety, this is not reflected in Pennsylvania's crime rates, which have continued to drop without them.
Mandatory minimum sentencing laws require courts to treat all defendants the same, regardless of the facts of the case or the person's circumstances.  
This one-size-fits-all approach does not work when it comes to healthcare or education policy, so why should we think it works in criminal justice?    
Some prosecutors argue that mandatory minimums are needed because some judges are too lenient. The fact is that judicial discretion is already structured in Pennsylvania under sentencing guidelines. 
Judges in Pennsylvania sentence within the recommended guidelines 90 percent of the time, and the seven percent of cases where judges depart below the guidelines is mostly due to a recommendation by the prosecutor. Sentencing guidelines render mandatory minimum sentences unnecessarily rigid. 
There is no good evidence that mandatory minimums do anything to make the public safer. 
Judge David Ashworth once again ordered Samuel Santiago to serve 20 to 40 years in state prison for the repeated rape and sexual assault of a girl beginning when she was 4 and continuing for nine years.
Take one purpose of sentencing, to deter future criminal behavior.  The science on deterrence is now clear that it is the swiftness and certainty of punishment that deters, not the severity. 
Mandatory minimums target the severity of punishment by unnecessarily ratcheting up sentence lengths.  For criminals who tend to be impulsive, inconsistently delivered and arbitrarily long sentences do nothing to deter future crime. 
A study by the Pennsylvania Commission on Sentencing found that the imposition of a mandatory minimum sentence was not a predictor of criminal re-offending.
Mandatory minimum sentencing wastes taxpayer dollars and diverts limited resources away from pursuing more serious offenders and supporting law enforcement. 
Estimates are that if Pennsylvania's Legislature reinstates mandatory minimums it could cost taxpayers as much as $85.5 million per year. 
For all of these reasons, a bi-partisan consensus has built around the country that mandatory minimums are ineffective and should be scaled back or eliminated. 
More than 30 states have now reconsidered mandatory minimum sentencing laws.  Conservative groups like Koch Industries, the American Legislative Exchange Council (ALEC), and the Commonwealth Foundation here in Pennsylvania, have all expressed opposition to mandatory minimums. 

Yet many in our Legislature are ignoring these realities and moving forward to quietly reinstate mandatory minimums. This puts Pennsylvania out of touch with the facts.
To read more CLICK HERE 

Wednesday, March 22, 2017

Trump budget will slash funding for domestic violence victims

President Donald Trump’s “skinny budget” blueprint  eliminates the 43-year-old Legal Services Corporation, the federal entity that provides millions for state-based legal aid operations, reported The InterceptOne-third of cases handled by LSC-affiliated groups involve women who are victims of domestic violence.
Not to mention the cut would deny millions of poor people access to the civil justice system, which would disproportionately impact women, who make up 70 percent of clients served by LSC funds. One-third of cases handled by LSC-affiliated groups involve women who are victims of domestic violence.
Trump wrote that his “aim is to meet the simple, but crucial demand of our citizens — a government that puts the needs of its own people first. When we do that we will set free the dreams of every American, and we will begin a new chapter of American greatness.” 
Cutting a program that provides for the safety of domestic violence survivors — among many others — seems an odd way to achieve greatness, according to The Intercept. Currently, 93 percent of the LSC’s $385 million federal budget goes to fund 134 nonprofit legal aid organizations operating more than 800 offices across the U.S. and its territories.
To read more CLICK HERE

Tuesday, March 21, 2017

Thiel College-Death Penalty

Thiel College-Comment Project No. 5

The neuropsychology issue raised in juvenile death penalty cases before the U.S. Supreme Court has jumped to non-death penalty cases like juvenile life without parole. Do you think brain development cases will further seep into juvenile criminal jurisprudence?  Explain your position in detail.

Man assaulted by twitter--DOJ makes arrest

A Maryland man has been arrested on a cyberstalking charge in connection with allegedly sending an epilepsy sufferer an animated Twitter message telling the victim that “you deserve a seizure,” federal officials said.
The victim has been identified as Newsweek writer Kurt Eichenwald who is a critic of President Trump. The Justice Department said that after viewing the strobe image, the victim “immediately suffered a seizure.”
Eichenwald has written for Newsweek about having epilepsy.
Cyberspace is filled with harsh exchanges. However, the allegations in this case suggest it may be one of the first in which physical harm resulted from receipt of a cybermessage.
The suspect was identified by the Justice Department as John Rayne Rivello, 29, of Salisbury, Md. 
The Twitter message told the recipient “you deserve a seizure for your post,” according to a statement from the Justice Department. The statement did not name the alleged victim.
On his Twitter feed, Eichenwald said that the FBI had arrested “the man who assaulted me using a strobe on twitter that triggered a seizure.” The Dallas police also investigated.
To read more CLICK HERE

Monday, March 20, 2017

Balko: Bite mark analysis is winless in scientific reviews, but it is undefeated in court

Radley Balko of the Washington Post continues his fight against bite mark junk science, this time taking on a Blair County, Pennsylvania judge. Balko writes:
Every scientific panel to review bite mark analysis to date has found no scientific basis for its underlying premises: a) that human dentition is unique, and b) even if (a) were true, that human skin is capable of recording and preserving bite marks in a way that preserves that uniqueness in a usable way. So far, the discipline has been found to be scientifically unreliable by the National Academy of Sciences, the Texas Forensic Science Commission, and the President’s Council of Advisors on Science and Technology. The latter two panels have called for barring bite mark evidence from criminal trials. Experiments by University of Buffalo scientists Mary and Peter Bush have also found no scientific basis for bite mark analysis.
Unfortunately, none of this seems to matter to the courts. Also of apparently little interest to the courts are the more than two dozen people wrongly arrested or convicted due to bite mark testimony. To date, every single court in the country to hear a challenge to bite mark evidence has shot that challenge down. Bite mark analysis is winless in scientific reviews, but it is undefeated in court.
To read more CLICK HERE

Sunday, March 19, 2017

Alabama inmate too sick to be executed

The 11th Circuit Court of Appeals  ruled that Alabama Death Row inmate Vernon Madison can't be executed.
Madison is one of Alabama's longest-serving death row inmates. He was convicted in the April 1985 slaying of Mobile police Cpl. Julius Schulte.
He was convicted and sentenced to death in both 1985 and 1990, but both times an appellate court sent the case back, first for a violation involving race-based jury selection and then based on improper testimony from an expert witness for the prosecution.
A doctor hired by Madison's attorneys with the Equal Justice Initiative, Dr. John Goff, had testified at a state competency trial in 2016 that Madison does not understand why he is being executed or the act for which he is being punished, according to the 11th Circuit opinion.
"None of the evidence at the competency hearing belies Dr. Goff's testimony. We therefore conclude that Mr. Madison is incompetent to be executed," the 11th Circuit ruled today.
Madison has claimed that he is mentally incompetent to be executed.             
Madison, 66, has suffered strokes resulting in significant cognitive and physical decline, according to the appeals court ruling.
At the competency hearing, Madison presented unrebutted testimony from Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder--"the very act that is the reason for his execution"--and does not believe he killed anyone,  the appeals court stated in its order.
The case will now be taken up before the 11th Circuit Court of Appeals, which has set oral arguments for June 23.
To read more CLICK HERE

Saturday, March 18, 2017

GateHouse: Are freedom and fear compatible?

Matthew T. Mangino
GateHouse Media
March 17, 2017
Are freedom and fear compatible? The U.S. Constitution provides people—-not just citizens—all people in America, with the freedom of movement, assembly, religion and speech.
How does fear play a role in exercising those fundamental rights? People go to great lengths to avoid being victimized. According to Gallup, more than one in three Americans say they are afraid to walk alone at night near their home.
The number of Americans afraid to venture out alone at night is lower today than when crime rates were soaring in the 1990s. However, fear has not decreased as sharply as the drop in violent crime. In fact, while violent crime is at a record low, the percentage of those afraid to walk alone at night has fallen only one percentage point in three years.
However, fear is politically powerful. Attorney General Jeff Sessions is warning that the U.S. faces "a dangerous new trend" in crime although he acknowledged that crime rates remain near historic lows across the United States. Mixed messages breed contempt.
Ironically, the unrealistic fear of crime has had an enormous impact on crime. Experts may not say it and the average American may not admit it, but decreasing crime rates have come at a precious cost — the sacrifice of personal liberty. John Q. Wilson, the late criminologist, wrote several years ago in The Wall Street Journal, "Another possible reason for reduced crime is that potential victims may have become better at protecting themselves by equipping their homes with burglar alarms, putting extra locks on their cars and moving into safer buildings or even safer neighborhoods."
Americans have slowly reinvented their way of life to protect themselves from the threat of violence and that evolution may be driving down crime rates in the process. More research is warranted, but it appears that the key to falling crime rates is not so much a matter of what we do, but rather what we don't do.
Most citizens are not even aware that some fundamental constitutional rights have begun to erode in the name of crime fighting. The Supreme Court of the United States has chiseled away at the Sixth Amendment guarantee of "effective" counsel; the Fourth Amendment protections against unlawful search and seizure; and the Fifth Amendment right to remain silent.
How about freedom of religion? To be a Muslim in America is to be afraid. The president has signed his second executive order banning refugees from a number of Muslim-majority nations. In fact, the president's first executive order made exceptions for Christian refugees.
Jewish synagogues and community centers are under constant threat in recent months. Non-Christians are legitimately fearful about the inclusiveness of the First Amendment.
Those who choose to take to the street in that time-honored act of protest are fearful. The right to assemble has been met with force in some parts of the country. Police officers in military gear, confronting protesters in armored, surplus military vehicles is a frightening and unnerving sight and the prospect of using the National Guard to aid in immigration enforcement is equally frightening.
The executive branch of government has sought to minimize the press and muzzle freedom of speech. The ongoing assault on the mainstream media and the idea of "fake" news is a blow to the fabric of the most fundamental of freedoms, freedom of the press. The line between reality—"Russian influence on the election"—and make believe—"my lines are tapped"—is becoming blurred. The inability to distinguish truth from fiction is dangerous.
Finally, the Second Amendment and the indisputable right to bear arms. A handgun in a women's purse or strapped to one's side is not a sign of freedom—it is a sign of fear. 
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 and follow him on Twitter @MatthewTMangino.
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Thursday, March 16, 2017

Thiel College-The Death Penalty

Thiel College-Comment Project No. 4

Hugo Bedau  claims:

"The execution of the innocent believed guilty is a miscarriage of justice that must be opposed whenever detected.
Most human activities like medicine, manufacturing, automobile, and air traffic, sports, not to mention wars and revolutions, cause the death of innocent bystanders.  Nevertheless, advantages outweigh the disadvantages, human activities including the penal system with all its punishments are morally justified."

Do you agree or disagree with this statement?  Provide a detailed explanation of your position.

SCOTUS to hear arguments on Brady v. Maryland issue

 On March 29, 2017, the Supreme Court will hear oral arguments in the consolidated cases of Turner v. United States and Overton v. United States. The Court does not rule upon questions pertaining to prosecutorial misconduct and the State’s duty to disclose exculpatory evidence very often, wrote Bidish Sarma, an attorney who represents individuals sentenced to death or LWOP, for the American Constitution Society. 
When it does, it tends to rely on decisions handed down decades ago despite evidence that courts struggle to enforce the relevant principles consistently and appropriately. The Turner-Overton matter thus presents both an opportunity and a challenge to the justices. The opportunity? An uncommon occasion upon which it can clarify principles and curtail the confusion that permeates lower courts’ opinions. The challenge? Moving beyond the facts presented and penetrating the deeper questions that reside beneath the surface.   
The question presented by these cases is a relatively narrow one: whether the Petitioners’ convictions must be set aside under Brady v. Maryland. That question is one the Court itself generated; the Petitioners initially asked the Court to resolve thornier questions that sometimes arise when the State fails to turn over all exculpatory evidence before trial. While it appears that SCOTUS will most likely take its well-worn minimalist approach in the Bradydue process context here, several pleadings demonstrate that deeper, systemic concerns warrant attention. 
 To recap the Brady test courts use post-trial: a new trial must be granted where the defendant has proven: (1) suppression—that the State actually failed to turn over the information at issue; (2) favorability—that the information would have helped the defendant; and (3) materiality (also known as prejudice)—that, had it been disclosed before the trial, there was “any reasonable likelihood” it could have “affected the judgment of the jury.” (Wearry v. Cain (2016) 
The Solicitor General argued in Turner and Overton. Although there is no dispute that the prosecution failed to turn over several categories of exculpatory evidence, the Government’s brief on the merits states, “[t]he government complied with is obligations under Brady v. Maryland, 373 U.S. 83 (1963). Nondisclosures violate Brady only when withheld information is both favorable and material.” See how easily the Government eludes that distinction between a Brady obligation and a Brady violation? In the first two sentences in the summary of its argument, the Government exploited a jurisprudential problem that the justices should address.
The Turner-Overton case is likely to be another in the line that reminds lower courts that materiality is not an impossible hurdle for defendants to overcome. Yet, it has the potential to be much more. There should be no doubt that much more is needed. Prosecutorial misconduct pervades the criminal justice system. Despite Brady’s promise, the malleable materiality standard has been bent in the State’s favor. If the Court does not change the standard itself, a finding of materiality in Turner-Overton may provide temporary assistance, but a band-aid will not suffice where an amputation is needed.
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Wednesday, March 15, 2017

Texas executes man who murdered 4 including an infant

The 6th Execution of 2017
After more than 25 years on death row, James Bigby was put to death  for launching a 1987 crime spree that led to the killing of four people, including a 4-month-old boy he drowned in a sink, reported Reuters.
Bigby was executed by lethal injection at the Texas death chamber in Huntsville and pronounced dead on March 14, 2017 at 6:31 p.m.
The execution was the 542nd in Texas since the U.S. Supreme Court reinstated the death penalty in 1976, the most of any state. It was also the sixth this year in the United States, and four of those execution have taken place in Texas.
There were no last-minute appeals for Bigby. Lawyers previously asked for a halt to his execution, saying he had schizophrenia and his mental illness was not properly considered as a mitigating factor during sentencing.
Bigby was convicted and sentenced to death for the Fort Worth-area murders of Michael Trekell, 26, and his son Jayson, a 17-week old infant. He was also suspected in but not charged with the deaths of Calvin Crane and Frank Johnson.
Sometimes in multiple killings, prosecutors opt not to charge a person with all the murders, leaving open the possibility of bringing those charges later if there are problems at trial.
Bigby thought his three friends were trying to block a worker's compensation claim he filed. To stop them, he shot Trekell in the head and killed the baby in December 1987, according to court documents. Later the same day, he killed Crane and went the next day to Johnson's house and fatally shot him when he opened the door, the documents said.
He was arrested after a standoff with police during which he threatened suicide and said he wanted to go out "in a blaze of glory," the documents showed.
During a recess in his 1991 murder trial, Bigby retrieved a revolver from the judge’s bench, entered the judicial chambers, pointed the gun at the judge’s head and said: “Let’s go," the documents said.
He was eventually subdued and later condemned to death.
In his last statement, he offered apologies to the families. "I’m sorry. I’m sorry. I hope that my death will bring you peace and closure," he was quoted as saying by the Texas Department of Criminal Justice.
To read more CLICK HERE

Tuesday, March 14, 2017

Supreme Court sex offender myth pervades criminal justice system

“This court has recognized that they have a high rate of recidivism and are very likely to do this again,” argued Robert C. Montgomery before the U.S. Supreme Court, Montgomery was defending a North Carolina statute that bars sex offenders from using Facebook, Twitter and other social media services.
The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high,” reported Adam Liptak in the New York Times. That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.
But there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine, wrote Liptak.
Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and that opinion did include a startling statistic. “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” Justice Kennedy wrote in the earlier case, McKune v. Lile.
He cited what seemed to be a good source for the statistic: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender,” published in 1988 by the Justice Department.
The guide, a compendium of papers from outside experts, is 231 pages long, and it contains lots of statistics on sex offender recidivism rates. Many of them were in the single digits, some a little higher. Only one source claimed an 80 percent rate, and the guide itself said that number might be exaggerated.
The source of the 80 percent figure was a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.
That’s it. The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal.
“Unfortunately,” Melissa Hamilton wrote in a new article in The Boston College Law Review, “the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.”
The most detailed examination of how all of this came to pass was in a 2015 article in Constitutional Commentary by Ira Mark Ellman and Tara Ellman, who were harshly critical of the Supreme Court.
 “Its endorsement has transformed random opinions by self-interested nonexperts into definitive studies offered to justify law and policy, while real studies by real scientists go unnoticed,” the authors wrote. “The court’s casual approach to the facts of sex offender re-offense rates is far more frightening than the rates themselves.”
There are many ways to calculate recidivism rates, and they vary depending on a host of distinctions. A 2014 Justice Department report found, for instance, that sex offenders generally have low overall recidivism rates for crimes. But they are more likely to commit additional sex offenses than other criminals.
In the three years after release from prison, 1.3 percent of people convicted of other kinds of crimes were arrested for sex offenses, compared to 5.3 percent of sex offenders. Those findings are broadly consistent with seven reports in various states, which found that people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years.
To read more CLICK HERE

Monday, March 13, 2017

The Vindicator: Hamad case offers inside look at rare and little used defense involving use of deadly force

Matthew T. Mangino
The Vindicator
March 12, 2017
When does a person have the right to use deadly force in self-defense in Ohio? That question promises to generate a lot of attention in Trumbull County.
On Feb. 25, Nasser Hamad allegedly shot five people in a vehicle outside of his home in Howland. Two of those wounded died and the other three were injured. Hamad recounted the incident to police, saying all five occupants of the vehicle – 20-year-old Joshua Williams, 19-year-old Josh Haber, 43-year-old April Trent-Vokes, 20-year-old Bryce Hendrickson and a 17-year-old juvenile – left the van and a fist fight ensued between Hamad and the juvenile. Once the fight ended, all five returned to the minivan, The Vindicator reported.
Hamad allegedly returned to his house where according to his statement to police he retrieved a 9mm handgun from his bedroom and left the house shooting into the vehicle. After unloading the magazine, Hamad told police he went back into his house and retrieved more ammunition.
A witness told police, Hamad came back outside appeared with the gun and began again to shoot into the vehicle.
Self-defense claim
Hamad’s attorney suggested that his client will make a claim of self-defense and filed a series of legal documents with the court last week.
The law in Ohio requires a defendant asserting self-defense to prove by a preponderance of the evidence that the defendant was not at fault, had a belief that he was in imminent danger of death or serious bodily harm and retreat was not required.
While one has a duty to retreat when threatened in public, Ohio has the Castle Doctrine which sets forth a separate set of guidelines when facing a threat in one’s home. You do not have to retreat if an intruder enters your home and threatens you or your family.
Ohio Senate Bill 184, codifying the Castle Doctrine, became effective in 2008. The Castle Doctrine provides that “a person is presumed to have acted in self-defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.”
What is included in the term “residence?”
Some would suggest that the curtilage – the area immediately surrounding the residence – would be considered part of the residence. The curtilage is commonly considered when evaluating Fourth Amendment search and seizure cases.
In 2013, the U.S. Supreme Court decided that a drug sniffing dog that came onto a porch and hit on drugs resulted in an illegal search because the dog was on the curtilage of the home without a warrant. On the other hand, at least one court has found that curtilage does not apply to the Castle Doctrine defense of a residence.
A defendant must reasonably believe that he is in danger of imminent death or serious bodily harm. Retreating into one’s home after an altercation outside of the home seems to lend little credence to a claim that lethal force was needed in self-defense.
According to Alexis M. Haddox writing in the Capital University Law Journal, “[T]he courts avoided applying the presumption [of justification through the Castle Doctrine] where it would have resulted in acquitting an at-fault defendant, or where it simply would have produced an unjust outcome.”
Justification defense
A defendant has the right to assert a justification defense – he was justified in using lethal force. However, justified use of lethal force is extremely rare. For instance, according to the New York Times, in 2010 “there were only 230 justifiable homicides involving a private citizen using a firearm reported to the F.B.I.’s Uniform Crime Report.”
A local courtroom may be the venue to get a first-hand look at a rare and little used defense and the machinations of defense lawyers and prosecutors as they wade through a morass of social media posts, statements and eye-witness accounts.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE