Friday, December 15, 2017

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

Matthew T. Mangino
The Pennsylvania Law Weekly
December 14, 2017
Last month, the Pennsylvania Supreme Court made a significant decision with regard to whether the interaction between a motorist and a police officer, with overhead emergency lights activated, is a mere encounter or an investigative detention. More to the point, is the motorist free to leave or is he being detained by the police?
The question also encompasses the safety of the public as well as the police officers who encounter vehicles. By activating overhead emergency lights behind a stopped vehicle, the driver is alerted that there is a law enforcement officer behind him and passing motorists are alerted that a police officer and a stopped vehicle are alongside the road.
The U.S. Supreme Court has consistently held that police officers do not violate the Fourth Amendment by merely approaching an individual in a public place and asking the individual questions or requesting identification.
In Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court held that the Fourth Amendment prohibition against unreasonable search and seizure is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest. The Terrycourt created a new degree of suspicion, more than a hunch but less than probable cause. After Terry, if a police officer has a “reasonable suspicion” that a suspect has committed, is committing, or is about to commit a crime or may be armed—the officer can detain, question and frisk the suspect.
The Pennsylvania Supreme Court recently took on the issue of an investigative detention involving a motor vehicle in Commonwealth v. Livingstone, No. 11 WAP 2016. The appellant, Victoria Livingstone, sought the suppression of evidence gathered during an interaction she had with a Pennsylvania state trooper along a busy interstate that led to her conviction of a DUI (driving under the influence).
Livingstone was stopped on the side of the road at approximately 9:30 p.m. on June 14, 2013, when a trooper observed her car and pulled alongside to see if she needed assistance. When the trooper attempted to engage Livingstone, she returned a “100-mile stare” and exhibited slurred speech and glassy eyes, wrote Ben Seal of The Legal Intelligencer.
The trooper moved his vehicle to the front of Livingstone’s and asked her a few questions. The trooper observed that she slurred her speech, cried, was confused, repeated herself and was unable to follow directions.
After failing a field sobriety test, the trooper placed Livingstone under arrest.
Livingstone’s motion to suppress alleged that the interaction between her and the trooper was an investigative detention without reasonable suspicion or probable cause. Once the trooper activated his car’s emergency lights he began an investigative detention.
The trial court denied her motion finding the interaction was a “mere encounter.” She was found guilty of all charges and appealed. The Superior Court agreed with the trial court and an appeal to the Pennsylvania Supreme Court followed.
In distinguishing a mere encounter from an investigative detention a trial court dealing with a motion to suppress must consider all the circumstances surrounding the encounter between the police and the individual. The Supreme Court crafted a reasonable person standard in Commonwealth v. Lewis, 636 A.2d 619 (1994). Would a reasonable person feel as though she could decline an officer’s request?
A mere encounter can be any formal or informal interaction between an officer and a person. The hallmark of a mere encounter is that it carries no official compulsion to stop or respond.
In contrast, an investigative detention carries an official compulsion to stop and respond, but the detention is temporary, unless it results in the formation of probable cause for arrest, and does not possess the coercive conditions consistent with a formal arrest. Since an investigative stop has elements of official compulsion it requires reasonable suspicion of unlawful activity.
In further contrast, a custodial detention occurs when the nature, duration and conditions of an investigative detention become so coercive as to be, practically speaking, the functional equivalent of an arrest.
A look back at the development of the law in this area is instructive and provides a glimpse into the significance of the Livingstone decision.
In Commonwealth v. Johonoson, 844 2.d 556 (2004), a state trooper observed a slow-moving vehicle traveling with flashing hazard lights on a rural road at 3 a.m. Without using his turn signal, the driver pulled his vehicle off to the side the of road, at which point the officer followed behind. The trooper activated his overhead emergency lights, and pulled behind the vehicle. When the trooper approached the driver he immediately noticed signs of intoxication, and subsequently arrested the driver for DUI.
Johonoson filed a motion to suppress the evidence of his intoxication, arguing that the activation of the officer’s overhead emergency lights would have made a reasonable person in his position believe he was not free to leave and, therefore, he was subject to an investigatory detention.
The trial court denied the motion and the Superior Court affirmed the trial court’s decision reasoning, “By pulling over to the side of the road at 3 in the morning on a rural road, after driving slowly with his hazard lights on, appellant should have had reason to expect that a police officer would pull over and attempt to render aid.”
The Superior Court reached a similar conclusion in Commonwealth v. Conte, 931 A.2d 690 (2007). An officer received a dispatch regarding a disabled vehicle on the shoulder of a road. When the officer arrived at the scene, he pulled behind the vehicle and activated his overhead emergency lights to alert passing vehicles of his presence.
The officer approached the driver who had already exited the vehicle, and asked him if he needed help. The driver told the officer he had a flat tire. After noticing signs of intoxication while speaking with the driver, the officer decided to administer field sobriety tests, the driver failed and submitted to a blood test resulting in a blood alcohol reading of .23 percent.
The driver was arrested and convicted. An appeal followed.
The Superior Court affirmed the trial court’s denial of Conte’s motion to suppress. Relying on the rationale in Johonoson, the court found that “the evidence introduced at the suppression hearing shows that a reasonable person in Conte’s position would have understood the police officer’s arrival as an act of official assistance, and not as the start of an investigative detention.”
In Commonwealth v. Kendall, 976 A.2d 503 (2009), Gregory Kendall appealed his Franklin County conviction for driving under the influence. On Sept. 17, 2007, two state troopers followed Kendall’s car for approximately two or three minutes at a distance of 50 to 100 feet, the driver activated his turn signal and pulled off to the shoulder of the road. The road had a narrow shoulder and the driver pulled the car partially onto a property that bordered the road.
The troopers pulled behind Kendall’s vehicle. After running the license plate one of the troopers activated the overhead lights and exited the patrol car and approached the vehicle. The trooper asked Kendall why he suddenly pulled over, and Kendall replied that it was to let the patrol car pass.
The trooper smelled alcohol and Kendall failed a field sobriety test. A blood test revealed Kendall had a blood alcohol content of .14 percent.
Kendall filed a motion to suppress alleging the stop was an investigative detention and not supported by reasonable suspicion. The Superior Court did not agree and ruled that the level of interaction between Kendall and the troopers began as a mere encounter and therefore no reasonable suspicion was required.
Finally, in 2009, the Pennsylvania Superior Court, en banc, decided Commonwealth v. Au, 986 A.2d 864 (2009). A police officer on routine patrol after midnight observed an automobile parked in the lot of a local business, which had closed several hours earlier.
The officer decided to see if the vehicle’s occupants needed assistance as it was unusual to see a car in the lot at such a late hour. Without activating his emergency lights, the officer parked his vehicle so that his headlights illuminated the passenger side of the vehicle. The car was filled with young people and the officer asked for identification.
The court found that an officer’s request for identification from a group of teenagers in a vehicle constituted an investigative detention unsupported by reasonable suspicion.
The Pennsylvania Supreme Court reversed the Au majority’s holding (Commonwealth v. Au, 42 A.3d 1002 (2012)), and adopted the analysis of the U.S. Supreme Court in Hiibel v. Sixth Judicial District Court, 542 U.S.177(2004), in which the high court held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment. In Au the Pennsylvania Supreme Court held that “a request for identification is not to be regarded as escalatory in terms of the coercive aspects of a police-citizen encounter.”
What distinguished Au from Livingstone is that the officer in Au did not activate his overhead emergency lights. Had he activated his emergency lights the stop may have been an investigative detention regardless of the request of identification.
Contrary to decisions reviewed above, the Pennsylvania Supreme Court has made it clear in Livingstone that the activation of a police car’s overhead emergency lights is enough to initiate an investigative detention. A motorist who drives away from a police car with lights illuminated may be convicted of fleeing and alluding, 75 Pa.C.S.A. 3733.
“The fact that motorists risk being charged with violations of the motor vehicle code … supports our conclusion that a reasonable person in the appellant’s shoes would not have felt free to leave,”
Therefore, Livingstone was seized and subjected to an investigative detention without any degree of suspicion of criminal activity.
Will this decision put motorists and police officers in danger or jeopardize viable prosecutions? If activating emergency lights initiates an investigative detention, will police officers avoid using their overhead lights when checking on a motorist? The safety of motorists on the roadway and the police officer would be compromised.
On the other hand, activating overhead lights without reasonable suspicion may make evidence of criminal activity seized by police subject to suppression.
In light of Livingstone, Pennsylvania appellate courts will no doubt be asked to review the parameters of reasonable suspicion. Soon sitting along the highway in a stopped vehicle may be enough to trigger reasonable suspicion.
The Pennsylvania Supreme Court also used the facts in Livingstone to examine the public servant “exception” to the requirement for a warrant pursuant to the community caretaker doctrine. A more thorough review of those 23 pages of legal analysis will be left for another column.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll,” 2010 was released by McFarland & Company. You can reach him at and follow him on Twitter @MatthewTMangino).
To visit the column CLICK HERE

Thursday, December 14, 2017

DA encourages support for PA Clean Slate Act

Allegheny County District Attorney Steve Zappela wrote recently in the Pittsburgh Post-Gazette: Last year, the state Legislature passed a law that offers the chance to seal old, minor criminal records for people who stay out of trouble. While that was a good start to help people rebuild their lives and reputations, there is a next step that should be taken.
The law now requires Pennsylvanians who stay out of trouble for 10 years to go through a time-consuming and cumbersome process to seal their records, a process that includes a court hearing and the payment of a filing fee.
The General Assembly can ease that burden by passing the Clean Slate Act. The act would make the sealing of these records automatic after 10 years for nonviolent offenders who stay out of trouble. The courts and police agencies would work together to accurately and automatically seal these criminal records within two months of an offender’s eligibility. Those who qualify would simply be notified by mail that their records have been sealed. They would not have to go through a hearing, pay a fee or hire a lawyer.
Criminal background checks are necessary and serve an important function. Employers, landlords and schools should know if there is something in a candidate’s past that makes that person a danger or liability. The Clean Slate Act would not inhibit background checks. What it would do is allow nonviolent offenders who remain crime-free for a decade to apply for housing, jobs and schools, knowing that a long-ago minor crime will not stand in the way of their applications being considered.
To read more CLICK HERE

Wednesday, December 13, 2017

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

Two FBI agents assigned to the investigation into alleged collusion between President Trump’s campaign and Russia exchanged text messages referring to the future president as an “idiot,” according to copies of messages turned over to Congress by the Justice Department, reported Politico. Special Counsel Robert Mueller removed agent Peter Strzok from the probe “immediately” after learning of the texts in late July, the department said. The other agent, Lisa Page, had ended her assignment to Mueller’s office. After Page commented on a Bernie Sanders bumper sticker, Strzok replied, “He’s an idiot like Trump. Figure they cancel each other out.”
The messages, which turned up during a Justice Department inspector general investigation into political influence on investigative decisions during the campaign, are fueling Republican calls for a second special counsel to investigate Mueller’s operation. 
To read more CLICK HERE

Tuesday, December 12, 2017

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

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

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

Monday, December 11, 2017

GOP lawmakers excoriate FBI and special counsel

For five hours last week, Republican lawmakers delivered a reckless and sustained attack on the FBI and the special counsel, reported the Washington Post. They amplified President Trump’s claim that the FBI’s “reputation is in Tatters — worst in History” and that Robert S. Mueller III’s Russia probe, which has already secured guilty pleas from two Trump campaign officials and the indictments of two more, is part of a system that is “rigged,” “phony,” “dishonest” and using a “double standard.”
Shamefully, Republicans on the House Judiciary Committee launched an all-out assault on the special counsel and the FBI — choosing to protect Trump at the cost of Americans’ faith in the justice system and the rule of law.
Rep. Bob Goodlatte (R-Va.), the chairman, echoed Trump’s “tatters” claim and told FBI Director Christopher A. Wray that Mueller’s probe and the Clinton email probe have been tainted by “bias.”
Rep. Steve Chabot (R-Ohio) repeatedly charged that the FBI and Mueller have a “shocking” anti-Trump bias.
Rep. Jim Jordan (R-Ohio) said he has a “hunch” that “pro-Clinton, anti-Trump bias” at the FBI was behind a secret “warrant to spy on Americans associated with the Trump campaign.”
Rep. Matt Gaetz (R-Fla.) called former FBI director James B. Comey an “egomaniac rogue” and speculated that the FBI paid for the “dossier” on Trump’s activities in Russia.
Rep. Ron DeSantis (R-Fla.) speculated that anti-Trump bias led the FBI to conclude that Russia interfered in the U.S. election, and he threatened Wray: “I think you’re walking into a contempt of Congress.”
This is calumny. Mueller is a longtime Republican who was appointed FBI director by George W. Bush. He was named special counsel by Rod J. Rosenstein, also a Republican, who was appointed by Trump himself to be deputy attorney general. Comey, a Republican who served in Bush’s Justice Department, made political contributions to John McCain, Mitt Romney and other Republicans. Wray, a Republican who also gave to GOP candidates, was appointed by Trump.
To read more CLICK HERE

Sunday, December 10, 2017

Racist court decision may be key to Moore victory in Alabama

If Roy Moore narrowly defeats Doug Jones in this week’s Senate race, he may have an obscure 1903 Supreme Court case to thank, reported Newsweek.
The case, Giles v. Harris , upheld Alabama’s successful campaign to prevent African Americans from casting ballots despite the constitutional guarantee of the right for black people to vote.
Its ramifications can be felt to this day: about 15 percent of otherwise qualified African American residents of Alabama have been barred from voting in recent elections.
In a state where 90 percent of eligible blacks vote Democratic, that can make the difference in this week’s closely watched Senate election.
Alabama’s unequal approach to voting can be traced to its 1901 constitution, drawn up to prevent black citizens from voting.
The president of the convention that drafted the constitution, John B. Knox, declared at the beginning of the meeting: “And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.”
To read more CLICK HERE

Saturday, December 9, 2017

GateHouse: Waning respect for the rule of law

Matthew T. Mangino
GateHouse Media
December 7, 2017
Following a recent terrorist attack in Manhattan that killed eight and injured 12 President Donald Trump attacked the criminal justice system. He suggested that the criminal justice system was partially at fault for terrorist acts.
“We need quick justice, and we need strong justice -- much quicker and much stronger than we have right now. Because what we have right now is a joke, and it’s a laughingstock,” said Trump.
Last weekend President Trump tweeted, “After years of [F.B.I. Director] Comey, with the phony and dishonest Clinton investigation (and more), running the FBI, its reputation is in Tatters - worst in History! . . .”
Not to mention the president’s recent attacks against Special Counsel Robert Mueller and his team of investigators as “very bad and conflicted people” and his characterization of the Russia probe as a “witch hunt.”
Those comments from the president of the United States should alarm anyone who believes in the rule of law.
Bob Bauer, White House Counsel to President Obama, wrote recently on LawFare, “the president is successfully bringing the legal process into the discredited conspiratorial ranks of the ‘deep state.’ He is specifically stirring up suspicion of Robert Mueller, but his broadsides have a far wider focus. He has upbraided the whole system--DOJ, the FBI and the courts.”
The foundation of American democracy rests on the rule of law. Freedom endures with the notion that all men and women are on equal footing before the courts, and that our government of checks and balances protects us from corrupt institutions.
The faith that we invest in our leaders is always subject to legitimate scrutiny. However, baseless attacks on our institutions shake our faith in democracy.
In 2016, Gallup released a poll that showed only 23 percent of Americans have either “a great deal” or “quite a lot” of confidence in the criminal justice system. Such lack of confidence is unfortunate and concerning. The poll predates the current attacks on justice-related institutions.
Jason Brennan a professor at Georgetown University wrote in Time, ”[M]ost voters have no incentive to be well-informed about politics, or to correct their misinformed opinions. They have no incentive to think rationally about politics or to process information in a reasonable way. They have every incentive to indulge their biases and prejudices.”
The recipe of demagogic attacks on political institutions, and failure of voters to correct misinformation, is dangerous. Don’t take it from me. This week, former President Barack Obama warned against staying complacent in the face of rising nativism--citing the rise of Hitler as an example of what can happen if democracy is not defended--reports Crain’s Chicago Business.
“We have to tend to this garden of democracy or else things could fall apart quickly,” Obama told an audience at the Economic Club of Chicago. “That’s what happened in Germany in the 1930s, which despite the democracy of the Weimar Republic and centuries of high-level cultural and scientific achievements, Adolf Hitler rose to dominate.”
Obama continued, “Sixty million people died...So, you’ve got to pay attention. And vote.”
Whether it was attacking U.S. District Judge Gonzalo Curiel for his ethnicity or the “so-called judges’ that overruled his travel ban or his comments after the sanctuary cities decision, “This case is yet one more example of egregious overreach by a single, unelected district judge,” President Trump has displayed little respect for the rule of law.
In 1947, U.S. Supreme Court Justice Felix Frankfurter wrote, “There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”
Judges, prosecutors and investigators should be free from pressure imposed by a political party, a powerful person, a private interest, or popular opinion.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, December 8, 2017

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

Two and a half years after millions saw a cellphone video of Michael Slager gunning down Walter Scott, the 20-year prison sentence imposed will be etched into history as one of the most significant for an American police officer involved in a fatal shooting, reported the Post and Courier.
Slager was patrolling one of North Charleston’s most hardened communities on April 4, 2015 when he stopped Scott’s car for a broken brake light. The police had long used minor traffic stops to check on residents and look for greater crimes afoot.
This stop was ordinary until Scott, 50, jumped out and ran. Slager gave chase and tried to stop him with a Taser.
But the officer said Scott fought him and grabbed the stun gun, turning the weapon against him. As they rose from the ground, Slager said he feared what Scott might do. He pulled his pistol and fired.
But bystander Feidin Santana’s video showed the Taser bouncing behind the officer, though it offered no clear view of who had been holding it. Scott is running away at the first gunshot and is still running at the eighth, which brought him down. Five of the bullets had hit him from behind.
Officers are rarely arrested in shootings, a product of how much leeway the law gives them in justifying deadly force. Even more seldom are they convicted and sentenced to lengthy prison terms, which was apparent when Slager's state murder trial last year ended with a hung jury.
To read more CLICK HERE

Thursday, December 7, 2017

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

In August 1952, The New York Times published the following dire statement in an editorial: The public now had evidence in statistics “solemnly guaranteed as accurate and complete by the Police Department, that there is definite reason for concern about the trend violence is taking in New York.”
Over the years, things got bloodier, more or less steadily, until 1990. The city had 2,245 murders that year, WROTE Jim Dwyer in The New York Times.
This week, the police department released statistics that showed murders have declined so much in New York City that killings are likely to be fewer than 300 for 2017. That is less than most years in the 1950s, when there were fewer people living in the city.
A mere number, the homicide statistic is of the utmost importance for what it counts, death by violence. But it is also a historic milestone for what it does not count: lives not lost. It marks a long change, one whose importance would be unmistakable for anyone familiar with the city.
Well, not everyone. You can, of course, always manage to find one New Yorker who sees things upside down. In this case, the presidential candidate Donald J. Trump managed that trick during a campaign debate last year.
“Murders are up, all right,” Mr. Trump said. “You check it.”
Wrong then, wrong now. That may not qualify as startling news, but it is welcome. As the city has grown, it has become safer and safer.
The cause of the (nonexistent) crime increase, Mr. Trump had said, was that “a judge, who was a very-against-police judge,” acting in concert with Mayor Bill de Blasio, had ended the use of stop-and-frisk.
Candidate Trump got the murder trend completely wrong, but sometimes people stumble on facts when rushing to get to a larger truth.
In this case, Mr. Trump was trying to get at an even bigger untruth.
More than 4 million innocent people were stopped and frisked between 2002 and 2012. Most were under the age of 25. The vast majority were black or Latino. Under pressure from a lawsuit, the practice was scaled back beginning in 2012 — not by the order of a judge, not by Mayor de Blasio, but by his predecessor, Michael R. Bloomberg.
Today, the police still stop and search people, but the number of such encounters has dropped by more than 98 percent since its peak in 2011 — down to 12,404 in 2016, and about the same pace this year. Six years ago, 685,724 were stopped and searched — 605,328 of whom had done nothing wrong, and many thousands who had done nothing worse than carry marijuana.
Along the way, a federal judge did say that the city’s wholesale stop-and-frisk practices violated the Constitution. But contrary to the cries of Mr. Bloomberg, the police commissioner and some editorial writers, further curtailing this approach did not make the city more dangerous. In fact, the opposite happened. That is unambiguously great news.

To read more CLICK HERE

Wednesday, December 6, 2017

Malcolm Jenkins writes about JLWOP for NBC News

NFL player Malcolm Jenkins wrote recently for NBCNews about juvenile life without parole.  Here are excerpts: In 2012, the Supreme Court ruled that life sentences without parole should only be given to juveniles in the rarest of circumstances. Last year, it ruled that those individuals currently serving life sentences without parole should have their cases reviewed. Currently, more than 2,100 people who were sentenced as children are eligible to have their sentences reviewed and earn a second chance. Approximately 300 of these people are from the city of Philadelphia alone.
In its decision, the Supreme Court said that juvenile life without parole, where kids are sentenced to literally die in prison, should only be given to teens found to be “irreparably corrupt.” But in reality, according to the Fair Punishment Project, the “irreparably corrupt” child is a myth. We have to stop locking up kids and throwing away the key. According to human rights groups, America is the only country that sentences kids to life without parole.
The infuriating irony here is that the kids who have received life without parole sentences are, in many ways, the young people who needed our help the most. According to study conducted by the Sentencing Project, 79% of this population witnessed violence in their homes growing up, 40% were enrolled in special education classes, nearly half experienced physical abuse, and three-quarters of the girls had experienced sexual abuse.
America failed them once. Today, these kids deserve a second chance. Contrary to the super-predator rhetoric utilized by politicians in the past to justify locking up kids for life, adolescents really are different from adults — in almost every way. Their brains are underdeveloped, they struggle with judgment, they are susceptible to peer pressure.
For too long, we have depicted our youth, especially our black youth, as fully developed adults who are a lost cause. But they can change. These are not the soulless “super-predators” the media scared its readers with in the 70s and 80s. These are children. Studies show that even those accused of the most serious crimes age out of crime.
To read more CLICK HERE

Tuesday, December 5, 2017

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

President Donald Trump’s personal lawyer is arguing that, as the nominal head of federal law enforcement, the president is legally unable to obstruct justice. However, it wasn’t long ago that another senior Trump lawyer: Attorney General Jeff Sessions argued the exact opposite, reports Politico.
In 1999, Sessions – then an Alabama senator – laid out an impassioned case for President Bill Clinton to be removed from office based on the argument that Clinton obstructed justice amid the investigation into his affair with White House intern Monica Lewinsky.
“The facts are disturbing and compelling on the President's intent to obstruct justice,” he said, according to remarks in the congressional record.
Sessions isn’t alone. More than 40 current GOP members of Congress voted for the impeachment or removalof Clinton from office for obstruction of justice. They include Senate Majority Leader Mitch McConnell – who mounted his own passionate appeal to remove Clinton from office for obstruction of justice – Senate Judiciary Committee Chairman Chuck Grassley and Senate Intelligence Committee Chairman Richard Burr, who was a House member at the time.
In all, 17 sitting senators supported the obstruction of justice charge against Clinton in 1998 and 1999.
“The chief law officer of the land, whose oath of office calls on him to preserve, protect and defend the Constitution, crossed the line and failed to defend the law, and, in fact, attacked the law and the rights of a fellow citizen,” Sessions said during Clinton’s trial in the Senate, two months after he was impeached by the House. “Under our Constitution, equal justice requires that he forfeit his office.”
Trump’s personal lawyer John Dowd argued in an interview with Axios on Monday that the “president cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”
To read more CLICK HERE

Monday, December 4, 2017

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

This blog usually deals with crime and punishment. Today, we’ll focus on an effort to do away with a law that has landed a lot of people in jail over the years. It is strange, sports betting is illegal with a few exceptions (Nevada), yet newspapers around the country, television sports show and websites talk about “the line.”  How much a given team must win or lose by to win a bet.
New Jersey Gov. Chris Christie gambled big-time five years ago when he signed a law authorizing sports betting at casinos and racetracks and dared anyone to "try to stop us," reported the USA Today.
That's exactly what college and professional sports leagues and the federal government have done, thanks to a succession of court rulings upholding a 25-year-old federal law that prohibits gambling on sports outside Nevada and three other states with small sports lotteries.
But Christie has one last shot before leaving office next month. Today the Supreme Court will hear oral arguments in his case and could decide, as many court-watchers predict, that the ban violates states' rights. Such a ruling could open the floodgates to sports betting in any state willing to regulate it.
According to the new National Law Journal Supreme Court Brief, the American Gaming Association estimates that Americans bet $150 billion on sports annually, and only 3 percent of those bets are legal. If the Supreme Court strikes down the federal law that prohibits sports betting in most places, the industry will only grow, with sports betting spreading fast among revenue-thirsty states.
The dynamics of the case make for interesting bedfellows, as Bloomberg’s Greg Stohr notes: “All it took to bring Donald Trump and the National Football League together was New Jersey Governor Chris Christie and his Supreme Court bid to legalize sports gambling. The NFL, a target of the president’s Twitter ire over national anthem protests, is banding together with the administration to fight the outgoing governor.”
Oh, if you'd like to bet on which justice asks the first question you can find the odds here.
To read more CLICK HERE

Sunday, December 3, 2017

Louisiana public defenders broke, defendants temporarily unrepresented

It has become an annual ritual in Louisiana: Nearly every winter, the state’s public defenders run out of money, reported The Marshall Project. Last year, 33 of the state’s 42 local indigent defense offices cut staff or placed thousands of poor defendants on a wait list. The New Orleans public defender’s office began refusing clients, leaving hundreds to sit in jail without representation.
This year, there is another wait list. At least 11 Louisiana defendants facing the death penalty — including five who have already been indicted — have no defense team and may not have one until new money becomes available in July. The list is likely to grow. In Louisiana, all first-degree murder defendants face execution unless a prosecutor explicitly decides otherwise.
The latest crunch in Louisiana emerged from a law passed last year to try to patch up the system. The legislation, signed by Democratic Gov. John Bel Edwards in June 2016, required Louisiana’s state-level indigent defense agency to spend more on the overloaded local defenders — the ones who handle regular felony and misdemeanor cases — by spending less on lawyers in death penalty cases. The law successfully delivered about $5 million in additional cash to indigent defense offices around the state, including a $1.5 million boost for New Orleans, which has since ended its hiring freeze and reduced its wait list to essentially zero.
But funding for capital defenders was cut to $5.5 million from $8.5 million in just a year.
“They robbed Peter to pay Paul,” said Jay Dixon, chief defender for the Louisiana Public Defender Board, which is scheduled to hold a statewide meeting Thursday to discuss the waitlisted capital defendants. “We’re still in crisis; it’s just a different crisis. And now they can’t shift any more money around, so we could be facing an even greater crisis next year.”
Louisiana is the only state in the nation whose public defenders are funded primarily by traffic tickets, supplemented by a modest state contribution. In part because of changes in police practices, ticket revenue has declined since 2010, causing the annual budget gap

To read more CLICK HERE

Saturday, December 2, 2017

GateHouse: SCOTUS hears blockbuster 4th Amendment cellphone case

Matthew T. Mangino
GateHouse Media
December 1, 2017
Chief Justice John Roberts summed up the issue in this week’s blockbuster Fourth Amendment argument before the U.S. Supreme Court with this simple comment, “The whole question is whether the information is accessible to the government” without a warrant.
The Fourth Amendment requires the government to obtain a search warrant pursuant to a standard known as “probable cause” before obtaining an individual’s private information.
The Fourth Amendment protects the right of people to be “secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Where does electronic data fall when considering “houses, papers and effects?” Do the police have to get a search warrant in order to obtain cellphone location information that is routinely collected and stored by wireless providers?
The case before the Supreme Court this week, Carpenter v. United States, involved a series of armed robberies at Radio Shacks in Michigan and Ohio to, ironically, get cellphones.
The police arrested several men, one of whom confessed that he was part of a group that had robbed nine stores within the previous year. The suspect identified Timothy Carpenter. At Carpenter’s trial, prosecutors used data from his cellphone provider to put him at or near the scene of each of the robberies.
The Supreme Court has, in recent years, ruled in favor of the defense on major cases concerning how criminal law applies to new technology. In 2012, the court held that a warrant is required to place a GPS tracking device on a vehicle. In 2014, the court ruled that police need a warrant to search a cellphone that is seized during an arrest.
In Carpenter’s case, the police obtained an order of court under the Stored Communications Act, which does not require a showing of probable cause. The law authorizes release of records when there are “specific and articulable facts showing that there are reasonable grounds to believe” the records are “are relevant and material to an ongoing criminal investigation.”
A search warrant would have required probable cause, a more stringent standard than provided under the Stored Communications Act.
During this week’s argument, Justice Sonia Sotomayor noted that cell phones have become an “appendage” for people in the modern era, reported CNN. “Most Americans, I still think, want to avoid Big Brother,” she said. “They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time.”
The concern does not stop with the collection of location data. The capacity to store an enormous amount of data has long term implications for individual privacy. Data is routinely collected on web-surfing, shopping, dating, dining, social-interests and travel -- documenting nearly every act of a cellphone user. This new era of technology demands new protections against search and seizure of personal digital property.
Are the courts best suited to make policy on the protection of digital privacy? Courts address issues on a case-by-case basis, it may take years for the Courts to develop a coherent body of law on the protection of digital privacy, suggests David Von Drehle in the Washington Post.
Legislative bodies are best equipped to develop policy on this issue. If done properly, and not as a knee-jerk reaction, Congress or individual state legislatures can methodically study the issue and come up with a comprehensive policy for dealing with privacy in this new age.
Some of the legislative work is already underway. A bipartisan group of senators recently introduced the USA Rights Act to overhaul aspects of the National Security Agency warrantless internet surveillance program.
The bill, led by Senators Ron Wyden (D) and Rand Paul (R), would end the warrantless “back door” searches of American calls, emails, texts and other communications. This is a start, but it only scratches the surface when it comes to delineating the protections that should be afforded digital privacy in the 21st century.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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Friday, December 1, 2017

Former Trump security adviser Flynn to be charged with lying to the FBI

U.S. President Donald Trump's former national security adviser Michael Flynn lied to the FBI about his contacts with Russia's ambassador to the United States, the U.S. special counsel's office charged in a court filing made public on Friday, according to Reuters
The Office of the Special Counsel, which is investigating alleged Russian meddling in the 2016 U.S. presidential election and potential collusion by Trump's campaign, said a plea hearing for Flynn had been set for 10:30 a.m. EST (1530 GMT) on Friday.
Flynn is expected to plead guilty. 
Flynn, a retired Army general who was fired from his White House post in February after revelations he had misled Vice President Mike Pence about his conversations with the Russian ambassador, is a central figure in the federal investigation led by Special Counsel Robert Mueller.
The charge against him is another escalation in an investigation that has cast a cloud over the Trump administration since the Republican president took office on Jan. 20.
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