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?
To read more CLICK HERE

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.
To read more CLICK HERE

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.
To read more CLICK HERE

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.'"
To read more CLICK HERE

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.
To read more CLICK HERE

Monday, July 24, 2017

Did AG Sessions conspire, collude, obstruct, or perjure himself?

Russia’s ambassador to Washington told his superiors in Moscow that he discussed campaign-related matters, including policy issues important to Moscow, with Jeff Sessions during the 2016 presidential race, contrary to public assertions by the embattled attorney general, according to the Washington Post.
Ambassador Sergey Kislyak’s accounts of two conversations with Sessions — then a top foreign policy adviser to Republican candidate Donald Trump — were intercepted by U.S. spy agencies, which monitor the communications of senior Russian officials in the United States and in Russia. Sessions initially failed to disclose his contacts with Kislyak and then said that the meetings were not about the Trump campaign.
One U.S. official said that Sessions — who testified that he had no recollection of an April encounter — has provided “misleading” statements that are “contradicted by other evidence.” A former official said that the intelligence indicates that Sessions and Kislyak had “substantive” discussions on matters including Trump’s positions on Russia-related issues and prospects for U.S.-Russia relations in a Trump administration.
To read more CLICK HERE

Sunday, July 23, 2017

Miami is now one of the safest cities in America

Just jumped on a plane to Miami, Florida. I bet you didn't know this--Miami, once labeled “Paradise Lost” by Time magazine because of a searing homicide rate fueled by a crippling drug trade, is now one of the safest major cities in the U.S. when it comes to gun related deaths.
According to the Miami Herald, of the 26 homicides over the first six months of this year in Miami, only 16 were due to gunfire, records obtained from the Miami-Dade Medical Examiner and the city’s police department show.
Both numbers represent historic lows for a city that often racked up close to 300 homicides during the 1980s and which has seen those numbers drop by about 75 percent or more the past three years.
To read more CLICK HERE

Saturday, July 22, 2017

President Trump tweets he has “complete” ability to pardon

President Donald Trump claimed in a tweet today that he has the “complete” ability to pardon, according to the Huffington Post.
Trump’s pardon claim came after The Washington Post reported that he had inquired with his lawyers about how pardons work and speculation he is considering pardons for aides, his family, and even potentially himself.
It’s unclear if he actually could legally pardon himself. The Constitution’s presidential pardon provision does not explicitly ban the president from doing so. But Elizabeth Holtzman, a former Democratic congresswoman who served on the House Judiciary Committee during the Watergate scandal, argued in a Post op-ed this month that the president pardoning himself would undermine the entire constitution.
“A presidential self-pardoning power would seriously undermine the rule of law. If presidents could self-pardon, they could engage in monstrously wrongful and criminal conduct with impunity,” she wrote. “That would utterly violate the framers’ belief in a limited presidency and in the idea that no president is above the law.”
To read more CLICK HERE

Thursday, July 20, 2017

DA candidate: Cutting health care 'jeopardizes public safety'

Larry Krasner, the Democratic candidate for Philadelphia district attorney, wrote in the Philadelphia Inquirer:
In the name of health-care reform, politicians in Washington and Harrisburg [propose] . . . "curtailing important Obamacare protections and cutting back on Medicaid — threatens the lives of tens of thousands of Philadelphians."
It also jeopardizes public safety. When people are faced with chronic health problems or a life-threatening situation involving a family member, and have no options or support, they will act in desperation. When people are unable to afford treatment for behavioral health issues because they lack insurance, the criminal justice system often becomes the only societal structure that intervenes.
Under the American Health Care Act passed by the House of Representatives in May, 1.3 million Pennsylvanians would lose health insurance and 3,250 would die prematurely for lack of it, according to a statement from Marc Stier, director of the Pennsylvania Budget and Policy Center. Meanwhile, the U.S. Senate’s proposed Better Care Reconciliation Act would eliminate federal funding for the Medicaid expansion and impose caps on traditional Medicaid. That would cost Pennsylvania more than $30 billion in federal funding between 2020 and 2026 alone, says a Manatt Health / Robert Wood Johnson Foundation analysis.
Let’s look specifically at the impact these Medicaid cuts would have. Medicaid is not just a source of health care for millions of Americans, which allows them to remain productive and to take care of other family members. It is also the source of drug treatment and mental health services for the most vulnerable members of our population, including people reentering society from incarceration.
The Medicaid expansion of the Affordable Care Act enables 160,000 more Philadelphians to receive mental health or substance-abuse treatment. According to the Mayor’s Office, almost 40,000 of them are using these services. Statewide, 140,000 people have used the Medicaid expansion for addiction treatment since 2015, the Wolf administration estimates. And nationwide, Medicaid expenditures on opioid-blocking medications such as naltrexone, which many low-income people rely on to kick their addiction, increased tenfold in 2016, according to an Urban Institute report. The demand for such treatment shows no signs of slowing down.
To read more CLICK HERE

Wednesday, July 19, 2017

Mangino analyzes Yurich trial for WFMJ-TV21

Watch my interview on WFMJ-TV21 regarding the trial of Poland, Ohio doctor Joseph Yurich accused in a deadly boating accident two years ago on Berlin Reservoir.  A verdict is expected today.
To watch the interview CLICK HERE

The Trace: 4 Out of 10 Self-Defense Handgun Owners Have Received No Formal Firearms Training

More Americans than ever before own firearms for protection, but the percentage of people who undergo formal training on how to use their weapons has flatlined, a new paper published in the journal Injury Prevention shows.
The research, conducted by Ali Rowhani-Rahbar and Vivian Lyons, epidemiologists at the University of Washington, along with public health experts at Northeastern and Harvard, finds that 61 percent of all gun owners reported receiving formal firearms training. The researchers say this a statistically insignificant increase over the 56 to 58 percent of gun owners who reported receiving training in 1994, the last time a comparable survey was conducted, reported The Trace.
Of gun owners who said they own a handgun for the sole purpose of protection, 57 percent said they had received formal training. Only 14 percent of those who live with a gun owner, but who do not own guns themselves, have received safety training, which the authors say is a troubling finding considering how often accidental shootings or suicides are committed with guns that belong to a parent, spouse, or roommate.
“Despite the presence of training programs all around the country, it looks like they are not reaching a larger fraction of gun owners than they were 20 years ago,” said Rowhani-Rahbar. “I was surprised to see that.”
The researchers based their analysis on data from the National Firearms Survey, considered the first nationally representative investigation in more than two decades into how and why Americans keep weapons. The survey was conducted online in 2015 on behalf of a research team from Harvard and Northeastern universities by GfK, a market-research company. It surveyed nearly 4,000 Americans and oversampled for veterans and gun owners.
To read more CLICK HERE

Tuesday, July 18, 2017

Report singles out federal prison in PA for poor treatment of mentally ill

The Office of the Inspector General for the US Department of Justice  issued a report on criticizing the Bureau of Prison's (BOP) treatment of inmates with mental illnesses. The report singles out  a prison in Lewisburg, Pennsylvania, having a pending lawsuit against it, alleging that the institution mistreated prisoners and denied adequate mental health services. According to the report, the BOP is violating its own recently implemented policy by keeping prisoners with mental illness in solitary confinement for toolong and denying them medical treatment. The American Correctional Association recommends that solitary confinement cells be no smaller than 80 square feet, but those at Lewisburg are a mere 58.5 square feet.
 Prisoners who suffer from mental illness are confined with other afflicted inmates which often results in violent confrontations that cause serious injuries or death. The report also found that many who arrive at Lewisburg prison with mental disorders are denied treatment and medication. "We believe that the additional requirements established by the new policy, along with no increase in mental health staffing, resulted in institution mental health staffs reducing the number of inmates, who are required to receive more frequent mental health care." According to NPR, the BOP's acting director agreed to conduct a "comprehensive review" of Lewisburg prison and adopt the recommendations provided by the report.
To visit Jurist CLICK HERE

Monday, July 17, 2017

SCOTUS reaffirms 'Brady' evidence needs disclosed only if likely to change outcome of trial

On June 22, in Turner vs. United States, the Supreme Court, by a 6 to 2 vote, affirmed the murder convictions of seven men. Unlike most Supreme Court decisions, Turner went largely unnoticed.
It deserves more attention, but not because it announced a new legal rule, wrote Professor Samuel Gross, of the University of Michigan on The Crime Report . Instead, Turner reaffirmed a terrible old rule that has done great harm to the accuracy of criminal trials, and will continue to do so.
The crime in the Turner case was horrific: in 1984, a middle-aged woman was grabbed off the street in Washington D.C., beaten, sexually assaulted and killed in an alley. The defendants were convicted on the theory that they were part of a group of a dozen or more who committed this atrocity. No DNA, fingerprints or physical evidence of any other kind connected any of the defendants to the crime.
Twenty-six years later, the defendants’ attorneys learned that prosecutors had concealed a laundry list of evidence that would have helped their defense at trial.
In particular, one witness identified a man at the scene of the crime as James McMillian, a local resident who was arrested several weeks later for beating and robbing two other neighborhood women, and was later convicted for robbing, sodomizing, and murdering a third young woman in an alley. And another witness testified that he heard moans—apparently from the victim—coming from inside a garage that was too small for a crime with 12 or even six perpetrators.
The Justice Department agreed that this evidence should have been disclosed at trial. The only issue was whether concealing that evidence made the trial fundamentally unfair, and requires a new trial.
In Brady v. Maryland, in 1964, the Supreme Court ruled that the government is constitutionally obligated to disclose evidence that is favorable to the defense in a criminal trial if that evidence is “material” to the case.
Later cases held that evidence is only “material” under Brady if there is a “reasonable probability” that the outcome of the trial would have been more favorable to the defendant if the evidence had been disclosed. Otherwise, under Brady, the prosecution may conceal favorable evidence from the defense and the trial court.
This standard is impossible to apply.
A prosecutor has to decide whether to disclose favorable evidence before the trial begins. At that point, she does not know what her own witnesses will say under oath (there are many surprises) let alone what the defense might put on. How can she possibly know before trial whether undisclosed evidence might tip the jury’s decision at the end of that trial? And who would trust a lawyer to make that decision about a case she herself is litigating?
Trial lawyers often believe, unrealistically, that their cases are airtight. In this setting, self-confidence is self-serving: it can lead prosecutors to decide that it’s OK to hide troubling evidence, which makes their job a bunch easier.
When a prosecutor does hide evidence, chances are nobody will ever know. If somehow it does come out, a court reviewing the case faces the same impossible question—what might have happened at trial if these facts had been known to the defense?—with an added twist: Judges are extremely reluctant to reverse jury verdicts and order new trials.
Not surprisingly, they usually conclude that concealed evidence was “immaterial” and therefore never had to be disclosed in the first place.
That’s just what the Supreme Court did in Turner. The majority points out that the hidden evidence is only exculpatory if McMillian committed the crime alone and not as another member of a large group. But none of the defendants disputed the prosecution’s claim that the victim was attacked by a group. Instead, each said that he was not involved, but his co-defendants might have been—and two additional defendants pled guilty and testified for the government in return for reduced sentences.
In that context, the majority concludes that disclosing the hidden evidence would have made no difference; presumably because there was little or no doubt that the defendants were in fact guilty.
However, as Justice Kagan points out in her dissent, no defendant argued that the murder was the work of a single person because they had no idea that there was evidence to support that claim. If they had known what we now know, the trial might have been totally different, including what was disputed and who testified. The two defendants who pled guilty might not have done so, and all of the defendants might have been acquitted—perhaps because they are innocent.I
Our best hope for avoiding tragic mistakes is to present all the evidence that matters the first time around.
Why not eliminate the “materiality” requirement entirely and treat access to exculpatory evidence like other aspects of a criminal defendant’s constitutional right to a fair trial? If exculpatory evidence is concealed, it’s a violation of the Constitution, period.
This would not mean that every violation requires a new trial. Courts often uphold convictions despite constitutional violations, because they are convinced beyond a reasonable doubt that the violation had no impact on the outcome. But that’s a tougher exception to meet, and it includes a critical message: Hiding exculpatory evidence is always a violation of the constitution.
To read more CLICK HERE

Sunday, July 16, 2017

Mangino talks about Trump, Jr.'s meeting with Russia

Watch my interview on WFMJ-TV21's Weekend Today Show regarding Donald Trump, Jr.'s meeting with the Russians.
To watch the interview CLICK HERE

Courtroom ID's, the 'Perry Mason Moment' losing steam

It’s one of the oldest courtroom gambits in America, the Perry Mason moment: a prosecutor in a criminal trial asks a key witness if he sees the person who committed the crime anywhere in the room. Pause. The witness turns and points to the defendant, as the jurors take it all in. 
But this enduring practice, dating back to colonial courthouses, has come under fire in the last few years as an often unreliable tool that has no place in a 21st century trial, reported The Marshall Project.
Citing a vast body of research on the fallibility of eyewitness testimony in general, questions are now being raised specifically about in-court identification. Some experts say the tactic is unduly suggestive, ineffectively tests a witness’s memory, and provides more theatrical flourish than probative evidence. They also say that the process leaves room for error.
Massachusetts and Connecticut have already limited the use of this approach. In both states, the main concern was that the witness in the courtroom was making the identification for the first time, and had not previously picked the defendant out of a standard lineup or photo array. In some cases, the witness may be making the courtroom identification weeks—or even years—after the crime took place.
A 2016 state supreme court decision in Connecticut held that witnesses cannot be asked for an in-court identification unless they knew the defendant before witnessing the crime or have already successfully identified the defendant in an out-of-court procedure, or the perpetrator’s identity is not contested.
In Massachusetts in 2014, the state’s top court largely banned the practice for cases in which witnesses had been anything short of unequivocal in identifying the defendant before the trial. It’s possible that Colorado will soon be joining them.
The push to restrict in-court identification began roughly five years ago with efforts by The Innocence Project, a nonprofit legal organization that seeks to exonerate the wrongly convicted. The group, which hopes to continue its efforts around the country, has kept data on DNA exonerations in the U.S. since 1989. It reported that 71 percent of those wrongful convictions have involved some kind of mistaken eyewitness identification, both in and out of court. Of that 71 percent, more than half involved an incorrect in-court identification.
Innocence Project lawyers contend that first-time in-court identification increases the risk of wrongful conviction. They argue that the powerful theatrics of pointing to the defendant can sometimes overcome the shortcomings of a weak case.
To read more CLICK HERE

Saturday, July 15, 2017

GateHouse: Did Trump Jr., Trump campaign break the law?

Matthew T. Mangino
GateHouse Media
July 14, 2017
Since the very first suggestion that the Trump campaign conspired with the Russian government to influence the 2016 election, USA Today wrote that everyone associated with President Donald Trump — his family, his strategists, his vice president, his official spokesmen and himself — indignantly have insisted there was nothing at all to the “outrageous” suggestions that the campaign had anything to do with the Russians.
This week that all came crashing down. The disclosure of emails to and from Donald Trump Jr. indicated that some of the campaign’s closest advisers met with a representative of the Russian government to discuss the Russians providing information damaging to Hillary Clinton.
The meeting involved Trump Jr., Jared Kushner, the president’s son-in-law, and Paul Manafort, Trump’s campaign manager. When informed by email of the planned meeting, and its focus on Clinton, Trump Jr. replied “I love it.”
There is nothing new about digging for dirt on a political opponent. Every campaign does opposition research. Firms are hired to thoroughly investigate a political opponent. Research can take the form of anything from arrest records, news-clippings, televised speeches and even old college essays. According to the Associated Press, a “vast majority” of opposition research involves publicly available records, compiled by professionals into easily digestible memos.
In the midst of the recent firestorm, Trump Jr. tweeted, “Obviously I’m the first person on a campaign to ever take a meeting to hear info about an opponent ... went nowhere but had to listen.”
Sarcasm aside, he may well be the first American campaign official to meet with a foreign power interested in influencing a national election.
In 2000, a close adviser to Democratic presidential candidate Al Gore received an anonymous package in the mail containing a videotape of George W. Bush practicing for the upcoming presidential debates and more than 120 pages of planned debate strategies.
According to, the campaign adviser and his lawyer contacted the FBI and immediately handed the package over. The Gore campaign quickly reached out to the media to provide a timeline of the events.
The Gore campaign had no way of knowing if the anonymous package was from a foreign or domestic source, but the mere fact that it had the potential to impact the outcome of the election it was turned over to authorities.
Does the dubious Russian dirt on Clinton violate federal election law? Opposition research has a value to a campaign. Political campaigns routinely pay for such information and disclose those expenditures on campaign finance reports.
It is a federal crime for any foreigner to contribute or donate money, or some “other thing of value” in connection with an American election. A “thing of value” can be something intangible — like information. It is also a crime to solicit a foreigner to contribute to a campaign.
Robert Bauer, an election-law specialist who served as White House counsel in the Obama administration told the New York Times that the law may cover the Russian government’s paying its spies and hackers to collect and disseminate negative information about Clinton to help Trump win the 2016 election.
“There are firms in the United States that do negative research and sell it to campaigns,” Bauer said. “There is no way to take information someone has compiled using resources and say it’s just information and dirt. It’s valuable information and counts as a contribution when given to or distributed for the benefit of a campaign.”
In a complaint filed this week, the watchdog group Common Cause has asked the Federal Election Commission and the Department of Justice to investigate whether campaign finance laws were broken.
There is still a lot to learn. The Mueller investigation continues as do congressional investigations in both houses of Congress. Trump Jr.’s emails have only added fuel to an already raging fire.
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, July 14, 2017

Long sentences keep prisons crowded despite reform

Despite the enactment of justice reforms in many states, the nation’s prison and jail population has dropped only slightly in recent years. Well over two million people remain behind bars, and there has been little dent in the “mass incarceration” that that has been criticized by many on both the left and the right.
A new report from the Urban Institute tells much of the reason why: Prisoners sentenced to long terms under laws passed in previous decades still are locked up, and there is little hope for many of them to get out soon, wrote Ted Gest on The Crime Report.
The key phrase used by those who follow the criminal justice system is “length of stay,” or the amount of time that a convicted person ends up spending in prison despite the stated sentence.
In “A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons,” the institute said that “more people have been going to prison and staying there longer, mostly because of “tough-on-crime” policies that swept the country in the 1980s and ’90s. The prison population boomed as sentences got longer and release policies got more restrictive.”
In the past, many convicts were released by parole boards or by other policies well before the maximum time they could have served. Reacting to criticism of these so-called early releases, many states enacted laws requiring all prisoners to stay through at least 85 percent of their sentences.
The Urban Institute report found that the average length of stay has grown in every state since 2000. In almost half of states, the top 10 percent of prison terms increased in length by more than 5 years between 2000 and 2014.
To read more CLICK HERE

Thursday, July 13, 2017

Congressmen introduce article of impeachment seeking removal of President Trump

Rep. Brad Sherman (D-Calif.) introduced an article of impeachment in the U.S. House of Representatives, seeking to remove President Donald Trump from office for obstruction of justice. Rep. Al Green (D-Texas) co-sponsored the article.
According to the Huffington Post, Sherman first raised the specter of impeachment in early June, basing his case on Trump’s apparent interference in an FBI investigation into his former national security advisor, Michael Flynn.
As Sherman sees it, Trump’s firing of FBI Director James Comey ― who says he was firedin retaliation for continuing to investigate Flynn ― constitutes obstruction of justice.
“Recent disclosures by Donald Trump Jr. indicate that Trump’s campaign was eager to receive assistance from Russia,” Sherman explained in a media release. “It now seems likely that the President had something to hide when he tried to curtail the investigation of National Security Advisor Michael Flynn and the wider Russian probe. I believe his conversations with, and subsequent firing of, FBI Director James Comey constitute Obstruction of Justice.”
To read more CLICK HERE

Wednesday, July 12, 2017

Why are jurors rejecting the death penalty?

Brandon L. Garrett,  the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law, recently wrote for Slate:
Capital punishment has now been outlawed in 19 states. In the places where it remains legal, jurors are increasingly reluctant to impose it. Just 30 people were sentenced to death in the United States last year, and only 27 counties out of more than 3,000 nationwide sent anyone to death row. In the mid-1990s, by contrast, more than 300 people were sentenced to death, with capital punishment being undertaken in as many as 200 counties each year.
Jurors have even started to reject the death penalty in Texas, which has sentenced more people to death than any other state in modern times. Texas prosecutors are seeking the death penalty less often, and when they do, they’re frequently failing to persuade juries to impose it. In 15 capital trials in the state since 2015, just eight have resulted in death sentences.
So, what has changed the minds of jurors? It’s not that they’re morally opposed to the death penalty. In fact, jurors who object on principle can be disqualified from serving in capital trials. These are people who are open to imposing the ultimate punishment but decide to reject it after hearing a convicted murderer’s life story, including evidence of mental health issues, childhood abuse, and other mitigating circumstances.
Take the case of James Holmes, who was convicted of 24 counts of capital murder for opening fire in a theater in Aurora, Colorado, in 2012. After a lengthy trial in which defense attorneys presented detailed evidence about Holmes’ mental health problems, jurors chose a life sentence in 2015. Or consider the less well-known case of Russell Brown, who was found guilty of the capital murder of a state trooper in Virginia. In August 2016, the jury rejected a death sentence after experts testified that Brown was insane.
Another reason for the decline in death sentences is that murders have steadily declined across the country, beginning in the mid-’90s. (There has, however, been a recent spike in the murder rate in certain large cities.) When my co-authors and I analyzed death sentencing data by county from 1990 through 2016, we found that a drop in the murder rate was strongly associated with the decline in death sentencing.
But death sentences have fallen far faster than murders. One reason may be the growth in adequately resourced defense lawyers. In general, states that have statewide offices to represent defendants at capital trials, as opposed to locally appointed lawyers, have experienced far greater declines in death sentencing. Those offices have the resources to hire experts who can present mental health evidence and explain the defendant’s social history.
Virginia created regional defense offices to handle death penalty cases in 2004. Defense lawyers began calling more witnesses, presenting more mental health evidence, and telling a more complete story about the defendant’s background at sentencing. Although death sentences in Virginia used to be routine, there now hasn’t been a single one in seven years.
To read more CLICK HERE

Tuesday, July 11, 2017

In Pennsylvania 18-, 19-, and 20-year-old lifers fight for release

In 1982, when Judge Armand Della Porta sentenced Orlando Stewart to spend the rest of his life in prison, he did it with apparent regret. “This is the best example of how wrong mandatory sentencing is,” he said.
Stewart was the last of 10 West Philadelphia teenagers sentenced in the 1981 death of University of Pennsylvania graduate student Douglas Huffman. They’d gone out in a pack, looking for someone to rob. One teen hit Huffman, knocking him to the pavement where he hit his head hard enough to fracture his skull. Huffman declined medical treatment, and was found dead in his bed two days later.
Seven of the teens served short sentences, some as little as a year. Ronald Saunders, who orchestrated the attack, was sentenced to life. But he was made eligible for parole this March after a U.S. Supreme Court ruling that drew on evolving brain science to conclude juveniles are less culpable than adults, and cannot be doomed to life without parole under mandatory sentencing rules. Charles Manor, the teen who knocked Huffman to the ground, was also made eligible for parole.
But Stewart, who never touched Huffman, won’t get a new sentence. That’s because two months and 10 days before the crime, Stewart turned 18. Those two months were the difference between kid and adult under the law — and between the “hope for some years of life outside prison walls” promised in that 2016 Supreme Court decision and the certainty of death in prison.
Now, appeals by 18-, 19-, and 20-year-old lifers like Stewart have begun to reach Pennsylvania’s highest court, reported the Philadelphia Inquirer. One was filed in June by Charmaine Pfender, who was 18 when she shot a man she says was attempting to rape her at knifepoint, killing him. Such petitions argue that the same immaturity and impulsivity that diminish younger teens’ culpability continue well into the 20s, as a person’s brain continues to develop.
If successful, the appeals could have sweeping implications: More than half of Pennsylvania’s lifers entered the state prison system between age 18 and 25. That’s 2,763 inmates.
These arguments appear to be gaining traction elsewhere. An Illinois appeals court in December granted a new sentencing hearing to Antonio House, who was 19 when he participated in a gang-related killing. And a federal judge has agreed to hear arguments in the Connecticut case of Luis Noel Cruz, who was 18 when he participated in a murder.
Laurence Steinberg, a Temple University psychologist specializing in brain development, says such arguments have a scientific basis. His research shows that, while cognitive abilities mature by age 16, other parts of the brain mature later. Areas that influence criminal culpability, like impulsiveness, risk-aversion, and resistance to peer pressure, continue maturing well into the 20s.
“The science would certainly say there’s significant brain maturation that continues to go on at least until age 21, if not beyond,” he said. “The legal question is harder than the scientific question.”
After all, he added, “We have lots of age boundaries we draw in society that don’t make any sense from a scientific point of view. Why on earth would we let people drive when they’re 16, but not see sexy movies until they’re 17? Driving is a much more dangerous thing to do. Why do we have different ages for purchasing tobacco and purchasing alcohol, if we believe those are both harmful things for young people?”
In light of evolving neuroscience, some jurisdictions have begun to set up young-adult courts, targeting those between 18 and 25 for consideration that is somewhere between juvenile and adult proceedings. San Francisco, Brooklyn, and Chicago have all launched such initiatives.
But in a string of U.S. Supreme Court cases, beginning with Roper v. Simmons, the 2005 case that abolished the juvenile death penalty, the court determined “a line must be drawn.” Age 18 seemed a conventional choice.
This line has led to perplexing moments in the courtroom over the last year and a half, as Pennsylvania judges have worked to resentence some 500 juvenile lifers — the largest such population in the nation. Their sentences were deemed illegal under Miller vs. Alabama, a 2012 case, but it took a second case, Montgomery v. Louisiana, to get Pennsylvania courts to apply the ruling retroactively.
At least a half-dozen lifers who sought new sentences in Philadelphia waited for months while lawyers tracked down birth certificates from the 1950s, ’60s, or ’70s to determine whether they were on the right side of 18 at the time of the crime. One, Steven Drake — the only 18-year-old in a group of 11 youths charged in a 1971 stabbing in West Philadelphia — was 23 days too old to make the cut, according to the date of birth on his court docket.
To Bret Grote, “Arbitrarily drawing this line and hunting down birth certificates, it points to the fundamental unfairness.”
Grote, a Pittsburgh-based anti-incarceration activist who cofounded the nonprofit Abolitionist Law Center, is representing Pfender and two others who argue the Miller ruling should apply to them. One is Arthur Johnson, who spent 37 years in solitary confinement until Grote sued and won his release into the general population last September. More than 100 lifers who were just a few months or years over 18 at the time of their crimes have written to him seeking representation.
Pfender’s appeal is the first to reach the Pennsylvania Supreme Court, according to Grote. The court has not yet determined whether it will take the case.
“I think as a legal question, Ms. Pfender meets the requirement of Miller v. Alabama of having diminished culpability,” he said.
Pfender, he said, suffered years of physical, emotional, and sexual abuse by her father, and began drinking alcohol regularly at age 8 to cope.
Donna Hill, her mother, believes those traumatic memories were triggered at the time of the murder. “It was self-defense. She didn’t want to be raped again,” she said.
Hill said that these days her daughter is a civic leader in prison who’s developed programs for mothers and children. She’s the type of person who plays Santa Claus and the Easter Bunny during visiting-room holidays.
“I would think people would look at their own histories and think, ‘Wow, when I was that age, I really didn’t have an adult brain. I really didn’t think the way I do now,’ ” she said.
The trouble is, pinning down just what makes an adult brain is tricky.
“There is no number that anyone would agree, ‘Oh, this is adulthood,’ ” said Beatriz Luna, a University of Pittsburgh neuroscientist who studies how neural processes develop.
“We have never found that by 18 any of these processes are mature,” she said. “Now we have extended our studies up to the age of 30. Certainly, we have results that show that by 20, things are beginning to stabilize.”
Steinberg said few studies have focused on 18- to 24-year-olds, so more research is needed.
But whatever that science yields might not make a difference in court.

“You could argue late adolescents are still less mature than adults — nobody in the scientific community would dispute that,” Steinberg said. “On the other side, you could say, ‘Yes, but they’re mature enough.’ ”
To read more CLICK HERE

Monday, July 10, 2017

Supreme Court brushes aside Brady violation

The United States Constitution requires prosecutors to give the defense “exculpatory” evidence—information that casts doubt on the government’s case. Federal Judge Alex Kozinski has lambasted prosecutors for regularly hiding such evidence, known as Brady material, noting that “Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to the unsettling trend.” He blamed judges for the government’s frequent misbehavior: “Some prosecutors don’t care about Brady because courts don’t make them care.”
While Kozinski’s criticism created headlines, it appears not much has changed.
Jessica Brand writes in Slate about an opinion that went largely unnoticed at the end of the U.S. Supreme Court’s term, the court addressed a case, Turner v. United States, in which the prosecution suppressed evidence suggesting that someone other than the defendants committed a heinous murder. In a 6–2 ruling, the court chose to give the government a free pass for this bad behavior.
The case involved the 1984 kidnapping, robbery, and murder of 49-year-old Catherine Fuller in Washington. On her way to go shopping, Fuller was sodomized, robbed of $40 and cheap jewelry, and killed. A street vendor found her body in a garage abutting an alley just hours after she left home.
During the trial, prosecutors for the U.S. Attorney’s Office for the District of Columbia wove a terrifying narrative about Fuller being attacked by more than a dozen young men, among them Charles S. Turner, from a street gang known as the 8th and H Street Crew; 10 of those men were charged as co-defendants. The government lacked physical evidence tying the defendants to the crime. Instead, it based its case largely on the testimony of two witnesses who pleaded guilty to the murder in exchange for reduced charges and lighter sentences. The two testified that, along with the other defendants, they robbed and brutally assaulted Fuller. After deliberating for a week, the jury acquitted two of the defendants and convicted the other eight.
Two decades later, the Mid-Atlantic Innocence Project uncovered evidence that the prosecutors had withheld from the defense. It turned out that the street vendor who found Fuller had seen two men, one with a bulge under his coat, run to the alley, stop by the garage, stay there for five minutes, and run as the police approached. After examining the government’s files, the Innocence Project learned that the street vendor had revealed that one of the men he’d seen was named James McMillan—information the government had withheld despite the defense’s requests. Two other witnesses also observed McMillan near the crime scene and described his “suspicious behavior,” evidence prosecutors also withheld. Soon after Fuller’s murder, police arrested McMillan for beating and robbing two other women in that same neighborhood.
McMillan would have been a good suspect for the defense to investigate had they known about him. Indeed, years after the trial, McMillan robbed, sodomized, and murdered another young woman in an alley just a few blocks from where Fuller was killed.
In 2010, the defendants moved for a new trial. This term, Turner v. United States reached the U.S. Supreme Court.
At stake was whether the justices would hold prosecutors accountable for what are known as Brady violations. Under the Supreme Court’s landmark 1963 ruling in Brady v. Maryland, the government must disclose any evidence that casts doubt on the prosecution’s case. Known as Brady material, such evidence can include, for instance, a prosecutor’s promise of money in exchange for a witness’s testimony, a witness’s inconsistent statements about what he saw during the crime, or evidence that someone besides the defendant was lurking around the crime scene. If the government doesn’t turn this information over, it’s in violation of the U.S. Constitution.
While everyone—including the government—agreed that prosecutors should have turned over the evidence at trial, the justices upheld the convictions. (The decision was 6–2 because Justice Neil Gorsuch did not participate.) In his opinion, Justice Stephen Breyer wrote that the illegally suppressed evidence was probably not strong enough to overcome the government’s “group attack theory,” the “cornerstone of [its] case.” In other words, no harm, no foul.
More broadly, most of the court took comfort in the government’s assurance that, since the U.S. Attorney’s Office adopted a 2006 training manual, it adhered to a “generous policy of discovery,” disclosing any “information that a defendant might wish to use.”
To read more CLICK HERE

Sunday, July 9, 2017

Federal court says First Amendment protects recording police

The Third Circuit Court of Appeals has ruled that the First Amendment protects an individual's right to photograph, film or record police conducting their duties in public. The decision was handed down on July 7, 2017 in the case of Richard Fields v. The City of Philadelphia.
To read the opinion CLICK HERE

Saturday, July 8, 2017

GateHouse: The Constitution and students’ rights

Matthew T. Mangino
GateHouse Media
July 7, 2017
As students spend the summer out of class, now is the time to reflect on a growing problem across the country. School districts have relinquished discipline, in large measure, to law enforcement agencies.
There was a time when disruptive students were sent to see the principal. Today, in some school districts the disruptive student is handcuffed and ushered off to court. The “school-to-prison pipeline” is overflowing with students.
As schools continue to rely on law enforcement for discipline, it is imperative that students’ constitutional due process rights are protected on school grounds. Even the United States Supreme Court has said that “students do not shed their constitutional rights at the schoolhouse gate.”
The courts have not clearly defined when protections, that many adults take for granted on the street, are applicable within the confines of a school building. When a school allows a police officer to arrest a student -- or refer a student to law enforcement or juvenile court as a form of discipline -- the school is turning that student over to the juvenile justice system. Parents believe their children are safe and being protected from harm. Yet, with the ever expanding relationship between school and law enforcement a student is much more likely to get a criminal record in school than to get a black eye.
Schools with police resource officers tout the increased safety, but leave out the increased arrest of students. A report by the Justice Policy Institute found that, even controlling for a school district’s poverty level, schools with officers had five times as many arrests for “disorderly conduct” as schools without them.
The fundamental rights provided by the Fourth, Fifth and Sixth Amendment -- although more limited in school -- are available to students suspected of criminal activity.
It is hornbook law that the Fourth Amendment requires a warrant be obtained based on probable cause before a search or seizure of evidence. There are exceptions that have been carved out by the U.S. Supreme Court. Those exceptions have expanded over time but have not, to this point, relieved law enforcement from getting the court’s approval to search or arrest an individual.
In 1985, the U.S. Supreme Court ruled that although the Fourth Amendment prohibition against unreasonable searches and seizures applied to searches of students, neither a warrant nor probable cause was necessary.
The Court reasoned that although students do have rights in school those rights have to be balanced with the school’s interest in maintaining discipline.
A valid search of a student requires a school show only that an administrator had reasonable suspicion -- less than probable cause but more than a hunch. Reasonable suspicion was first introduced by the Supreme Court in 1968.
The Supreme Court has never directly addressed how the Fifth and Sixth Amendment protections against self-incrimination and the right to counsel are applicable to students in school.
In a 2011 case out of North Carolina, the Supreme Court addressed whether rights warnings were necessary due to the age of the suspect.
A seventh grade student was pulled out of class by a police officer to talk about some break-ins in the neighborhood. The officer did not inform the student of his right to remain silent or his right to legal counsel, the rights made famous by the landmark Supreme Court decision in Miranda v. Arizona.
Miranda requires that a suspect in custody, not free to leave, and subject to interrogation, questions that might elicit an incriminating response, be informed of the right to remain silent and the right to counsel.
The Court ruled that age is a factor to be considered for purposes of Miranda. The Court also noted that a student’s presence at school is compulsory and disobedience at school is a cause for discipline, therefore a student would likely not feel free to leave while being questioned in school.
Parents need to pay attention to this issue. As police presence expands in schools so should the rights of students.
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, July 7, 2017

Virginia executes killer of sheriff's deputy and security guard

The 14th Execution of 2017
The state of Virginia executed William Morva on July 6, 2017, convicted of the 2006 killings of a security guard and a sheriff's deputy, reported Reuters. Morva’s supporters claimed that he was mentally ill and questioned whether the execution drugs would work as planned.
Morva, 35, was pronounced dead at 9:15 p.m. EDT, Virginia Department of Corrections spokeswoman Lisa Kinney said. Morva declined to make a final statement, she said.
Virginia Governor Terry McAuliffe refused to block the execution earlier on Thursday, saying that examinations by prison doctors since Morva's 2008 conviction had shown no sign that he suffered from severe mental illness or delusional disorder, an ailment akin to schizophrenia, as his lawyers had claimed.
Morva's death sentence, for killing an unarmed security guard and a sheriff's deputy in a 2006 escape from custody, had triggered renewed debate about capital punishment.
"The record before me does not contain sufficient evidence to warrant the extraordinary step of overturning the decision of a lawfully impaneled jury following a properly conducted trial," McAuliffe, a Democrat, said in a statement.
A review of the autopsy of Ricky Gray, a Virginia inmate executed in January, showed fluid in his lungs and blood on his lips, suggesting the drugs had not stopped his heart quickly as intended, the newspaper said. A spokesman for McAuliffe did not respond to a request for comment.
Morva's deadly rampage took place after he was taken to a hospital while being held in the Montgomery County Jail on robbery charges.
He stole a gun at the hospital and shot the security guard. Morva shot the deputy sheriff during a search for him the next day.
Morva's execution was the 113th in Virginia since the Supreme Court allowed the resumption of the death penalty in 1976, according to the Death Penalty Information Center.
That number places Virginia second among states on the U.S. executions list behind Texas, which has had 542.
To read more CLICK HERE

Thursday, July 6, 2017

Florida judge declares "Stand Your Ground" law unconstitutional

Florida’s updated “Stand Your Ground” self-defense law is unconstitutional, according to the Miami Herald.
Miami-Dade Circuit Judge Milton Hirsch ruled that lawmakers overstepped their authority in modifying the law this year to force prosecutors to disprove a defendant’s self-defense claim at a pre-trial hearing.
The judge ruled that under Florida’s constitution, that change should have been crafted by the Florida Supreme Court, not the Legislature.
“As a matter of constitutional separation of powers, that procedure cannot be legislatively modified,” Hirsch wrote in a 14-page order.
The ruling is a victory for prosecutors who have firmly opposed a law they believe makes it easier for defendants to get away with murder and other violent crime.
Hirsch’s ruling isn’t binding – other trial courts across Florida can follow the law if they choose. But it does get the ball rolling on the appeals process, and possibly getting the law reviewed by the Florida Supreme Court.
Sen. Rob Bradley, R-Fleming Island, told the Miami Herald he believes the Legislature acted lawfully.
“I would be surprised if this decision were upheld at the appellate level,” said Bradley, a former prosecutor who championed the modification of the already controversial “Stand Your Ground” statute passed over a decade ago. The change was pushed by the politically powerful National Rifle Association. Gov. Rick Scott signed the new law into effect in last month.
First passed in 2005, Florida’s controversial self-defense law has been criticized for fostering a shoot-first mentality – and giving killers a pass at justice. The law eliminated a citizen’s duty to retreat before using deadly force to counter an apparent threat. 
More problematic for prosecutors, the law made it easier for judges — before ever getting to a jury — to dismiss criminal charges if they deem someone acted in self-defense.
The Florida Supreme Court later ruled that defendants, in asking for immunity from criminal prosecution, must be the ones to prove they were acting in self-defense. 
In Miami-Dade, judges have thrown several high-profile murder cases after pre-trial immunity hearings, but have also allowed many more to go to a jury.
But the NRA-backed bill, passed in May despite fierce opposition by prosecutors and gun-control advocates, upended the legal framework.
Now, at those pre-trial hearings, prosecutors shoulder the burden of disproving a defendant’s self-defense claim. State Attorneys contended that it essentially forces them to unfairly try the case twice, making it easier for criminals to skate on violent charges. Under the law, prosecutors must prove by “clear and convincing” evidence that a defendant was not acting in self-defense.
To read more CLICK HERE

Tuesday, July 4, 2017

Chief Justice Roberts delivers humble, but meaningful commencement address

Chief Justice John G. Roberts Jr. delivered the ninth-grade commencement address for the Cardigan Mountain School, an elite boarding school for boys grades six through nine, reported the Washington Post
In Canaan, N.H., Head of School Christopher Day said, the 17th chief justice of the United States would always be known as the dad of “our Cardigan ­­Cougar Jack.”
You may remember Jack Roberts from his own moment on the national stage 12 years ago, when his father was chosen for the Supreme Court. As President George W. Bush revealed his choice in a formal White House ceremony, John and Jane Roberts struggled to simultaneously ignore and control the rambunctious boy in the short-pants ice-cream suit. 
Roberts’s commencement address was not publicized in advance, but it was recorded by the school, uploaded to YouTube and is slowly gaining attention. Several readers emailed the link to me. One person wrote, “I’m a Democrat and I can’t stand the guy’s views, but I was in tears.”
There is nothing about the Supreme Court or the law in the short speech, although each graduating Cougar received an autographed, pocket-size Constitution along with his certificate.
Instead, the address was personal, understated and popular probably because it touched on universal themes, such as a parent’s worry about whether he or she is making the right decisions for their child.
Driving through the gates after leaving a student at Cardigan, Roberts said, parents travel a “trail of tears” to an “emptier and lonelier house.”
Roberts is considered one of the Supreme Court’s better writers, and his public addresses show a quick wit and professional timing. He first asked the Cardigan students to turn and applaud their parents and others who had guided them.
He joked that he would later be able to report that his speech was “interrupted by applause.”
Success, he reminded them, comes to those who are unafraid to fail. “And if you did fail, you got up and tried again. And if you failed again, you got up and tried again. And if you failed again — it might be time to think about doing something else.”
Roberts said commencement addresses customarily wish graduates success. He thought it better for them to experience challenges.
“From time to time in the years to come, I hope you will be treated unfairly,” Roberts said, “so that you will come to learn the value of justice.”
Betrayal “will teach you the importance of loyalty.” Loneliness will instruct people not to “take friends for granted.” Pain will cause someone “to learn compassion.”
“I wish you bad luck — again, from time to time — so that you will be conscious of the role of chance in life,” Roberts said. “And understand that your success is not completely deserved, and that the failure of others is not completely deserved, either.”
A commencement speech is supposed to offer “grand advice,” Roberts said, so his first was to recognize the exalted perch from which they started — a school with a 4-to-1 student-teacher ratio, where students dine in jackets and ties, and tuition and board cost about $55,000.
Through his son, Roberts had come to know many of the students, he said, and “I know you are good guys.”
“But you are also privileged young men, and if you weren’t privileged when you came here, you’re privileged now because you have been here,” Roberts said. “My advice is: Don’t act like it.”
He urged them, at their next school, to introduce themselves to the people “raking the leaves, shoveling the snow or emptying the trash.” Learn their names, smile and call them by name. “The worst thing that will happen is you will become known as the young man who smiles and says hello,” he said.
Another thing:
“You’ve been at a school with just boys. Most of you will be going to a school with girls,” Roberts said.
Long pause.
“I have no advice for you.”
In his speech, Roberts quoted Socrates and, not surprisingly, he ended it with the words of “the great American philosopher, Bob Dylan.”
Roberts has quoted Dylan in judicial opinions, and he’s not alone. The New York Times a few years ago noted a study that found Dylan the most-quoted songwriter in judicial opinions, and said Roberts had “opened the floodgates” by quoting the Bard of Minnesota in a 2008 dissent.
The song he quoted at the commencement speech was “Forever Young.” Roberts is an unusual parent. Now 62, he and Jane married rather late in life. Their contemporaries are welcoming grandchildren, while they have two high-schoolers, Jack and his sister Josephine.
“May you build a ladder to the stars
And climb on every rung
May you stay forever young.”
The wishes expressed by Dylan for his son, Jesse, are “beautiful, they’re timeless, they’re universal,” Roberts said.
But the phrase that gives the song its title and refrain — forever young — is unrealistic, the chief justice said. It can’t come true.
“That wish is a parent’s lament,” he said.
To watch the address CLICK HERE