Saturday, September 22, 2018

GateHouse: Where does Kavanaugh rift leave #MeToo?

Matthew T. Mangino
GateHouse Media
September 21, 2018
The teetering confirmation of Brett Kavanaugh to the U.S. Supreme Court may be a harbinger of the collapse — or lasting impact — of the #MeToo movement.
Conservative prosecutors, law enforcements agencies and lawmakers are at a crossroads with their counterparts on the left who want to pursue sexual assault at all cost — no matter how long ago.
In Pennsylvania, lawmakers expressed frustration with the state’s statute of limitations that prohibited the prosecution of 299 out of 301 predatory priests listed in a recent bombshell grand jury report. Advocacy groups were also quick to attack the statute of limitations for blocking victims from pursuing Bill Cosby or Harvey Weinstein.
Professor Christine Blasey Ford has accused Kavanaugh of sexual assault which occurred 36 years ago, in Maryland. There is no statute of limitations for rape or sexual assault in Maryland.
According to the Washington Post, Senate Republicans have signaled that they will move ahead with Kavanaugh’s confirmation in spite of Ford calling for a pause and the intervention of the FBI.
Why not have the FBI reopen Kavanaugh’s background investigation? The FBI reopened Justice Clarence Thomas’ background investigation in 1991 after Anita Hill came forward — or let the Montgomery County, Maryland District Attorney’s office conduct a criminal investigation.
Ford has described a sexual assault by a U.S. Supreme Court nominee who is about to take a lifetime appointment on one of the most powerful tribunals in the world.
A spokesperson for the Montgomery County Police Department told The Intercept that since “nobody has come forward to report any allegation or incident” they can’t start an investigation. Don’t they have televisions in Montgomery County?
Why abolish the statute of limitations if a prosecutor chooses to ignore the highest profile allegation of sexual assault in modern history with no limitations on his ability to act?
In June, the New York Times reported, “The battle over statutes of limitations for sexual assault is so fraught that it has upended traditional political alliances. Women’s rights activists typically partner with progressives on political issues ... those who advocate abolishing the limits find their staunchest allies in conservative lawmakers.”
As Kavanaugh’s confirmation presses forward it is ironic that Senator Mitch McConnell and his GOP colleagues in the Senate are pushing for a Monday hearing — with or without Ford.
McConnell was a major force behind the effort to push out Senator Larry E. Craig, the Idaho Republican arrested at an airport in 2007 in an undercover sex sting. McConnell was the chairman of the ethics committee when Oregon Senator Bob Packwood resigned after he was accused of sexual harassment. He pushed for the resignation of Minnesota Senator Al Franken amid allegations of sexual misconduct.
Last year, McConnell said Roy Moore, a Senate candidate from Alabama, would be unfit to serve in the senate after multiple women accused him of long ago sexual abuse.
Surprising, McConnell doesn’t require the same level of fitness for the United State Supreme Court as he does the United States Senate.
I recently wrote that there is a purpose behind the statute of limitations. The statute, or some version of it, has been around since antiquity. There has long been a concern that individuals should not be forced to defend themselves years and years after an event that allegedly caused harm to another person.
Today Show co-host Megyn Kelly — an unlikely ally of the Trump Administration — said this week, “It’s been 34 years. He (Kavanaugh) was allegedly 17 when it happened. How is he supposed to defend himself? There’s a reason we have statutes of limitation in this country and that’s because ... memory fades, details fade and it’s impossible for him to prove a negative.”
As the flaws of abolishing the statute of limitations are laid bare — the challenge for victim advocates is to convince the public that victims — however long ago their victimization — are entitled to be heard whether in a courtroom or a senate hearing room.
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, September 21, 2018

Double standard: Texas judge who sentenced woman to prison for voting also violated election laws

Crystal Mason, a 43-year-old mother of three, made headlines in March when she was sentenced to five years in prison for voting. Because of that conviction, on Aug. 30 a federal judge found her in violation of the terms of her supervised release and sentenced her to 10 months in prison, plus two years and two months of probation, reported The Appeal.
Mason says she didn’t know she was ineligible to vote when she cast a provisional ballot in Fort Worth, Texas, in the November 2016 presidential election. But she was on supervised release after a federal prison term for tax fraud, making her vote illegal. She found out three months later, when she was arrested for it.
“They tell you certain things like you can’t be around a felon, you can’t have a gun,” she told the Fort Worth Star-Telegram last year. “No one actually said, ‘Hey, you can’t vote this year.’”
The original case against Mason was brought by Tarrant County District Attorney Sharen Wilson in February 2017. But critics say it was not only unduly harsh—it was also hypocritical. Wilson, a Republican, has been far more lenient in handling an election-related forgery case involving a Republican justice of the peace, they point out. And she also committed an election-related impropriety of her own in 2016: asking her staff for personal contact information and then using it to solicit them for funds for her re-election.
Legal experts are mixed over whether that was a criminal offense, and a special prosecutor declined to pursue action against her. But Grant Hayden, a law professor at Southern Methodist University, said it’s unfair for Wilson to hold voters like Mason accountable for not knowing election rules and then claiming not to know rules herself. “Yeah, it looks like a double standard on its face,” Hayden told The Appeal. “And that’s a problem.”
To read more CLICK HERE

Thursday, September 20, 2018

Big city crime wave debunked, homicide on the decline

A new report issued by the Brennan Center for Justice at New York University projects an overall decline in crime in big cities in 2018, with a larger drop-off in homicides, particularly in cities where violent crime has spiked in recent years, reported The Crime Report.
Authors of the report calculate that murder rates in America’s 29 largest cities will drop by 7.6 percent over the previous year; falling off to levels approximately equal to 2015 rates.
Notably, the report projects a 35 percent decline in homicides in San Francisco, 23.2 percent in Chicago, and 20.9 percent in Baltimore. If projections hold, this would mean a hard reverse in Baltimore’s murder trend, dropping to levels not seen since 2014.
“These findings directly undercut claims that American cities are experiencing a crime wave. Instead, they suggest that increases in the murder rate in 2015 and 2016 were temporary, rather than signaling a reversal in the long-term downward trend,” wrote the authors.
To read more CLICK HERE

Wednesday, September 19, 2018

Balko: Here is proof of racism in the criminal justice system

Radley Balko of the Washington Post writes:
Systemic racism means  . . .  we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them. When you consider that much of the criminal-justice system was built, honed and firmly established during the Jim Crow era — an era almost everyone, conservatives included, will concede rife with racism — this is pretty intuitive. The modern criminal-justice system helped preserve racial order — it kept black people in their place. For much of the early 20th century, in some parts of the country, that was its primary function. That it might retain some of those proclivities today shouldn’t be all that surprising.
His column provides literally 100's of links to research that supports the premise that the criminal justice system is tainted with racism.
To read more CLICK HERE

Tuesday, September 18, 2018

PLW: Pa. Looks to Statute of Limitations as the State Faces Another Sex Abuse Scandal

Matthew T. Mangino
Pennsylvania Law Weekly
September 13, 2018
Pennsylvania Attorney General Josh Shapiro’s bombshell grand jury report on sex abuse of children by priests in six Pennsylvania dioceses has been met with universal derision and unrelenting criticism of  the Catholic Church.
As the furor toward the church continued the attorney general told “CBS This Morning,” “Because of the sophisticated cover-up, because of the efforts that went through the bishops stretching all the way up to the Vatican, they shielded these predator priests from the arm of the law.”
The shield has been provided by the statute of limitations. The public, advocates for victims of predatory sexual crimes and victims themselves are incensed that an accepted legal tenant can keep prosecutors and plaintiffs from holding 299 out of 301 priests named in the grand jury report from being held accountable.
Concern over a statute that can bar a claimant from raising a viable claim for recompense is not new. Over a century ago, Justice Oliver Wendell Holmes Jr. asked in a Harvard Law Review article, “What is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?”
Pennsylvania has grappled with the statute of limitations and child sex abuse. Last term, H.B. 1947 proposed eliminating the statute of limitations for criminal prosecutions and expanding the civil statute of limitation for a victim abused as a child to age 50. The sticking point has been creating a retroactive window to all victims to look back and seek damages for abuse committed beyond the current statute of limitation.
The current statute provides for criminal prosecutions until the victim’s 50th birthday and within 12 years of turning 18 years of age to pursue a civil claim. The statute of limitations can also be extended if DNA evidence becomes available and is used to “identify an otherwise unidentified individual as the perpetrator,” 42 Pa. C.S.A. Section 5552 (c) (3).
Some senators and the hierarchy of the Catholic Church suggest that the Pennsylvania Constitution, Article I, Section 11, known as the Remedies Clause, prohibits the General Assembly from eliminating certain fixed rights, including the right to assert an established defense.
At a public hearing in 2016, Bruce Castor, at the time Pennsylvania’s solicitor general, testified, “House Bill 1947, if enacted into law in its current form and without amendment will, in our opinion, violate the remedies clause of the Pennsylvania Constitution.” Castor continued, “Potential defendants, who have had the statute of limitations pass without their being subjected to suit, will rightly claim a vested right in the applicable statute of limitations.”
Castor and others were concerned that a retroactive statute of limitations would infringe on a vested right already afforded individuals accused of harming a child. Those accused individuals can rely on the protections of the statute of limitations and to take that right away would violate Pennsylvania’s Constitution.
Is creating a window to seek compensation for damages for a specific group of victims the important question here?
The sexual abuse of children is a reprehensible and cowardly act—a heinous crime whose perpetrators deserve no mercy. State Rep. Mark Rozzi, D-Berks, a tireless advocate for child victims and the sponsor of legislation to expand and eliminate the statute of limitation posted on his legislative website, “One in four girls and one is six boys in your district have been sexually abused before the age of 18. Only one in 10 will ever tell. You probably interact with survivors every day … I too, am a victim of child sexual abuse.”
There is a purpose behind the statute of limitations. The statute, or some version of it, has been around since antiquity. There has long been a concern that individuals should not be forced to defend themselves years and years after an event that allegedly caused harm to another person.
As time passes memories fade, potential witnesses disappear or die and evidence spoils. An individual that is accused of a specific act that occurred on May 1, 1988, may have recalled his whereabouts in 1990 or even remembered where he was and who he was with 10 years later. But, what is the likelihood he can remember that specific day 30 years later?
Certainly fairness to an alleged victim is extremely important—but is it not the only factor?
Before we throw out the statute of limitations, let us look at the reasons that it has been around for so long.
Santa Clara University professor Tyler T. Ochoa and Judge Andrew Wistrich in “The Puzzling Purposes of Statutes of Limitation,” suggest that the statute of limitation reduces uncertainty. A person accused of a crime should be able to rely on the law and make decisions based on the law as it currently exists. If the legislature wants to abolish the statute of limitation for the crime of sexually abusing a child, then all people know, or should, know the law.
Ochoa and Wistrich contend that the statute of limitations prevents fraud. “The deterioration of evidence may make it more difficult to decide claims correctly, limiting the time within which actions can be filed may help to check the temptation to resort to fraud in filing or litigating,” 28 Pac. L. J. 453 (1997).
The authors continue, “This purpose rests on the premise that the longer the gap in time between the events at issue and trial on the merits, the more vulnerable the defendant is to spurious claims. It has two aspects: first, to prevent fraudulent claims from succeeding; and second, to prevent the use of fraudulent evidence in support of nonfraudulent claims.” Another words avoiding the dangerous idiom, “the end justifies the means.”
The statute of limitations also preserves the integrity of the legal system. “Courts do not want to be perceived to be haphazard guessers about facts. Not only would this be demeaning to the legal system, but it would breed disrespect for the political system as well,” 28 Pac. L. J. 453 (1997).
There will be a battle in the General Assembly.
Senate Bill 261, approved by the Senate 48-0, would eliminate the statute of limitations for child sex crimes and gives victims until the age 50 to file civil actions against their alleged abuser.
House Bill 612 would eliminate the criminal and civil statutes of limitations for child sex abuse and would allow for a two-year window to pursue a civil case were the statute has already expired.
Attorney General Shapiro recently told that he favors the creation of a retroactive window for sex abuse victims to bring civil claims. He said, “It’s the reforms as a whole—including the civil window, ending any age-based deadline for bringing criminal prosecutions of child sexual abuse, and clarifying state law on the duty to report child abuse—are needed to prevent these types of widespread abuse and cover-up from ever happening again.”
The rage over the grand jury report and the Catholic Church is palpable. There was also rage over Bill Cosby and the Penn State/Jerry Sandusky scandal—yet the debate continues.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the PLW CLICK HERE

Nominee Kavanaugh and accuser Ford to testify before Senate Judiciary Committee

Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford, the professor who has accused him of attempted sexual assault when they were teens, will have the opportunity to publicly testify next week, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) announced. according to the Huffington Post.
“Anyone who comes forward as Dr. Ford has done deserves to be heard,” Grassley said in a statement, promising to give the psychology professor’s allegations a “full airing” in a hearing scheduled next Monday.
The extraordinary move effectively postponed Thursday’s planned committee vote on the nomination, as Democrats had been demanding since Ford first spoke out publicly over the weekend. Moreover, Grassley’s statement appeared to be a result of tremendous pressure from other members of the GOP Senate conference, who were increasingly wary about the prospect of an all-male Republican committee majority denying Ford an opportunity to speak just weeks before the midterm elections.
Sen. Jeff Flake (R-Ariz.), a frequent critic of President Donald Trump, told reporters on Monday that he informed leadership he could not support the judge’s bid to the high court without first giving Ford a chance to be heard. He said “overwhelming” resistance among GOP members of the committee contributed to the scheduling of a public hearing.
The White House seemed to endorse the decision, with spokesman Raj Shah releasing a complementary statement Monday evening.
To read more CLICK HERE

Monday, September 17, 2018

Juveniles being used for violent crime because punishment is lenient

Increased instances of juvenile violent crimes reflect an alarming new strategy by Denver street gang leaders to arm young recruits with guns and have them carry out vendettas against rival gangs, including fatal shootings because laws protect juvenile killers from serving lengthy prison terms, reported the Denver Post.
The cycle continues.  As the treatment of juveniles becomes more lenient--the death penalty is gone, mandatory life in prison is gone and states begin reconsider harsh sentences for juveniles--criminal enterprises are back to using juveniles for violent crime.
“Adult and older gang members are becoming more sophisticated. They realize that young members don’t have the same severe consequences as they do. The guns are handed off to the younger kids,” said Kelly Waidler, senior deputy district attorney in Denver District Attorney Beth McCann’s juvenile unit. She formally served in the office’s gang unit.
Teenage killers and robbers adjudicated in juvenile court spend a maximum of five to seven years in a Colorado Division of Youth Services facility depending on their age. It is possible, however, that teens tried in adult court could initially go to youth services and later be transferred to an adult prison to serve out a lengthier sentence, Waidler said.
The rising number of arrests of juveniles for illegal possession of handguns in Denver and an increase in juvenile gun crimes including robbery and homicide may reflect a new strategy of arming younger gang members, said Courtney Johnston, chief deputy attorney in the juvenile unit.
To read more CLICK HERE

Sunday, September 16, 2018

The Kansas drug offender registry, Megan's Law for drug offenders

Under Kansas law, having a drug conviction means that a photograph and other identifying details are displayed in the same public registry that includes more than 10,000 convicted sex offenders. Many registrants also appear on third-party websites like “Offender Radar” and “Sex Offender Spy,” and it’s easy for a visitor to miss the single word — “drug” — that differentiates drug offenders from sex offenders," report The Marshall Project.
Lawmakers have long justified sex offender registries as a way to notify people about potentially dangerous neighbors or acquaintances, while critics say they fail to prevent crime and create a class of social outcasts. Over the years, several states have expanded their registries to add perpetrators of other crimes, including kidnapping, assault, and murder. Tennessee added animal abuse. Utah added white collar crimes. A few states considered but abandoned plans for hate crime and domestic abuse registries. At least five states publicly display methamphetamine producers.
But Kansas went furthest, adding an array of lesser drug crimes; roughly 4,600 people in the state are now registered as drug offenders. As deaths from opioids rise, some public officials have focused on addiction as a public health issue. Kansas offers a different approach, as law enforcement officials argue that the registry helps keep track of people who may commit new offenses and cautions the public to avoid potentially dangerous areas and individuals. At the same time, many registrants say it can be hard to move on when their pasts are just a click away for anyone to see.
The Kansas legislature is currently considering a bill proposed by the state’s sentencing commission that would remove drug offenders from the registry. “It is a drain on resources with no science, studies, or data to justify it,” defense lawyer Jennifer Roth told lawmakers at an early February hearing.
To read more CLICK HERE

Saturday, September 15, 2018

GateHouse: Fraud: The crime that can kill

Matthew T. Mangino
GateHouse Media
September 14, 2018
In the latest issue of The Atlantic, Rene Chun writes “The third leading cause of workplace death ... is homicide.”
The first thing that comes to mind is the disgruntled former employee who comes to the office and shoots the place up or a workplace romance gone sour. Another more sinister reason for workplace homicide is the concealment of fraud.
White-collar crime is typically financially motivated, committed by business men and women bent on illicit financial gain. White-collar crime was coined by sociologist Edwin Sutherland in 1939 to describe “a crime committed by a person of respectability and high social status in the course of his occupation”
The justice system has, for the most part, classified white-collar criminals as non-violent, giving them lenient sentences in “country club” prisons. White-collar criminals are often viewed as educated, “upper-class” workers who a made poor decisions.
However, in reality white-collar criminals are already adept at manipulation and have used deceit to exercise their criminality. White-collar criminals often have a lot at stake and may resort to violence to protect themselves and their “reputation” in the workplace and community.
Murder as a method of concealment is referred to as fraud-detection homicide. Violence is used as a means to conceal fraud through silencing the victim or witness who had detected or may be on the trail of detecting criminality.
Chun wrote about Frank S. Perri, a lawyer who teaches forensic accounting at DePaul University. Perri coined the term “red-collar” crime, in a 2015 article in the International Journal of Psychological Studies.
Why would a white-collar criminal turn to murder? Perri writes, “White-collar criminals thrive on being able to avoid detection in order to carry out their fraud schemes; they have the ability, like a chameleon, to adapt to a given environment.” The threat of detection turns the white-collar to red.
Perri continues, “As the threat of detection increases, so does the probability that the individual will rationalize murder as a solution to his or her problems ... red-collar criminals do not reject violence as a solution to a perceived problem, so killing is just as viable a solution as using deceptive and manipulative characteristics to satisfy their needs.”
When one thinks of a criminal who is stealing from his employer, and would use violence to protect his criminality, that person’s profile might include self-centeredness, lying, lack of empathy, lack of conscience, narcissism and the pursuit of their desires above all others in a way that disregards the well-being others.
That is a shorthand definition of a psychopathy.
Not all psychopaths are criminals. According to Amy Morin writing in Psychology Today, psychologists’ estimate one percent of the population meets the criteria of psychopathy. Not surprisingly, about 15 percent of prison inmates are estimated to be psychopaths. However, three percent of business leaders fit the profile for psychopathy as well.
Dr. Robert S. Hare is a criminal psychology researcher who developed The Hare Psychopathy Checklist, the definitive tool in evaluating psychopathy. Dr. Hare wrote, ”(I)t is possible to have people who are so emotionally disconnected that they can function as if other people are objects to be manipulated and destroyed without any concern”
As Morin points out, Psychopathy can lead to success in business. Psychopaths have a grandiose sense of self, “When they say they can skyrocket the company to new heights, they believe it. And they often convince others that they’re capable and competent too.”
It may not be the major merger that a red-collar criminal can manipulate his way through, but it may be skimming millions of dollars from the family business. A cunning, violence prone red-collar criminal can do considerable damage to the bottom line and the top brass.
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, September 14, 2018

Trump's former campaign manager to cooperate with special counsel

U.S. President Donald Trump's former campaign chairman Paul Manafort will cooperate with Special Counsel Robert Mueller's probe of Russian election meddling as part of a plea deal, prosecutors told a federal court in Washington on Friday.
Manafort, 69, also pleaded guilty to two criminal counts, becoming the most prominent former Trump campaign official to plead guilty in Mueller's investigation.
In a statement, the White House distanced Trump from the veteran Republican operative who helped get him elected against the odds in 2016.
"This had absolutely nothing to do with the president or his victorious 2016 presidential campaign," White House spokeswoman Sarah Sanders said of the Manafort news on Friday. "It is totally unrelated.”

One in three homicides go unsolved

Earlier this week, NPR reported that more than one-third of homicides in America go unsolved and examined why police investigators don’t close more murder cases. The Marshall Project asked Thomas Hargrove, the founder of the Murder Accountability Project and, to talk about what he’s learned in a career of studying data on homicide investigations across the country. After 37 years as an investigative reporter, Hargrove recently retired from journalism, to “spend my remaining time and energy to improve the accountability of unsolved murders.”
In the 1980s, about 27 percent of the killings of both black men and white men were reported to be unsolved at the time of reporting to the FBI. But from 1990 on, 29 percent of white male killings were unsolved compared to 38 percent of black male killings. Why the difference? Some criminologists point to the rise of drug- and gang-related violence in the murder statistics. These kinds of killings are certainly more difficult to solve. But there are many, many police departments where the clearance rates between white and black victims does not show this kind of disparity. It is most likely that the failure of solve homicides is a failure of will by local leadership. Police and community leadership in tandem has demonstrated in many communities that the “no snitching” rule can be overcome by compassionate leaders.
To read more CLICK HERE

Wednesday, September 12, 2018

The third leading cause of workplace death is homicide

The third leading cause of workplace death—behind “falls to a lower level” and “roadway collisions with other vehicles”—is homicide, reported The Atlantic.
This sobering data point comes courtesy of the latest Bureau of Labor Statistics study on fatal occupational injuries. What’s behind all this shooting (the leading m.o. of workplace murderers, according to the study) and “stabbing, cutting, slashing, piercing” (the runner-up category)? News reports point to doomed love triangles and disgruntled co-workers. Another cause, however, has been largely overlooked: fraud. Imagine a boss who kills his assistant to keep a Ponzi scheme afloat, or a crooked accountant who poisons an especially thorough auditor. In the world of CFEs (certified fraud examiners), these offenses have their own, pulpy label: red-collar crime.
Frank S. Perri, a CFE and defense attorney who teaches forensic accounting at DePaul University, coined the term after working on a murder case in 2005, an embezzlement scam that ended with a salesman—Perri’s client—convicted of smashing his partner’s skull with a claw hammer. Perri says his client was well-spoken and had no known history of violence or arrests. That’s part of why he was so dangerous. “Research shows the more that people reflect our own image, the more we are inclined to give them what is called an ‘implied credibility,’ ” he told me. “But these people can be very predatory.”
In “Red Collar Crime,” published in the International Journal of Psychological Studies in 2015, Perri describes a few dozen fraud-related homicides and attempted homicides that he researched in detail. Consider Aaron Hand, the former president of American Financial Group who plotted a $100 million mortgage fraud. After he was jailed, Hand tried to hire hit men to silence an informer. His quotes read like dialogue from a Scorsese movie (“I wish I was there to watch him suffer”). Hand’s bid failed, but Perri describes others that succeeded. Entries from the article’s accompanying tables suggest a special office edition of Clue: Irwin—Accounting Fraud, Gun; Albert—Identity Fraud, Bludgeon; Velma—Forgery, Poison.
Perri finds two traits to be most correlated with white-collar violence: narcissism and psychopathy. The latter is even more common than you might expect in the business world. In a 2010 study, researchers administered a test frequently used to gauge psychopathy to 203 managers and executives at seven companies. On a 40-point scale, the average person scores 3 or below. Shockingly, eight subjects pulled a score of 30 or higher, which is serial-killer territory. “Their excellent communication and convincing lying skills, which together would have made them attractive hiring candidates in the first place, apparently continued to serve them well,” the researchers concluded.
How many office psychopaths turn violent is less clear: The FBI doesn’t track red-collar crime, nor does OSHA. Richard G. Brody, another CFE and an accounting professor at the University of New Mexico, sometimes trawls the web for murder trials involving white-collar defendants, and has become convinced that red-collar crime is more prevalent than most people suspect. Detectives don’t always spot such homicides, he told me, so crime scenes may be contaminated and murders may pass for suicide. “Whenever I read about high-profile executives who are found dead, I immediately think red-collar crime,” he said. “Lots of people are getting away with murder.”
To read more CLICK HERE

Tuesday, September 11, 2018

California governor granting clemency at record pace

Twenty killers serving life sentences that were recently commuted by California Gov. Jerry Brown, reported the Washington Post. With barely four months left in office, California’s longest-serving governor is granting forgiveness to record numbers of criminals.
Brown has handed out more than 1,100 pardons benefiting a wide array of individuals, including those convicted of dealing drugs, driving while intoxicated and forgery. The tally is staggeringly greater than the totals of his immediate predecessors. Republican Arnold Schwarzenegger granted 15 pardons, and Democrat Gray Davis ended with zero.
Perhaps more remarkable are the commutations, which grant parole hearings to — and often spell early release for — criminals who previously may have had no chance of ever being paroled. Brown has issued 82 in the past seven years, far more than any California governor since at least the 1940s. Criminal justice reformers nationwide applaud him. Victims rights advocates are livid.
“2018 is the worst I’ve ever seen it,” said Patricia Wenskunas, founder and chief executive of the Crime Survivors Resource Center. “The sad reality is, California is not a victim-friendly state. It’s an offender-friendly state.”
California was once a leader in tough-on-crime policies, which turned its prisons into inmate warehouses. Then in 2011, the U.S. Supreme Court ruled that overcrowding in the state’s prison system amounted to cruel and unusual punishment. The decision accelerated a wave of legal reforms that have reduced the prison population by 25 percent. About 115,000 inmates remain locked up in the state’s 33 facilities. The vast majority of those released to date have been nonviolent offenders.
Brown’s commutations for the 20 murder convicts were tucked into a larger batch of pardons and commutations that he handed out last month. The designation isn’t synonymous with freedom but amounts to a reduction of an original sentence. For these 20 men and women, most of whom had been sentenced to life in prison with no possibility of parole, it means they’ll be granted a hearing.
The governor sees his action not as a sign of lenience so much as a societal course correction. “There has been an overshoot in the time many people expect [criminals] to be locked up in a cage or cell,” he said in an interview.
In the 1970s, those convicted of first-degree murder tended to serve about a decade for their crimes, he noted; now it isn’t unusual for such sentences to span a half-century. Some 5,000 prisoners today are serving life sentences without parole in California.
To read more CLICK HERE

Monday, September 10, 2018

Judging like umpiring is about more than balls and strikes

Jim Evans, a former major league umpire, and special adviser to the president of Minor League Baseball, wrote the following op-ed for the Washington Post:
I have been an umpire since I was 14. I have worked at every level, from Little League on up, and I worked thousands of games in the major leagues for 28 years. I don’t remember when I first heard the popular analogy comparing judges to umpires calling balls and strikes, but recently it’s been everywhere. When Brett Kavanaugh was first nominated to the Supreme Court, Tony Perkins of the Family Research Council called him “a constitutionalist — someone who will call balls and strikes.” This past week, as Kavanaugh’s confirmation hearings began, Sen. John Cornyn (R-Tex.) described him as “somebody who calls balls and strikes and doesn’t come up with his own strike zone.” Supposedly a judge is, and should be, as mechanical as an ump.
It’s true that there are similarities. Umpires have always been considered authority figures, like judges. Both are subject to a lot of scrutiny, and we do what we think is right by rule and tradition. Umpiring is a special calling and a learned skill that requires extraordinary mental toughness. When you put on your uniform, you are supposed to leave all your subjective feelings in that dressing room. Personal integrity and respect for the game are at stake.
But we have never been robots who simply call balls and strikes. Judges and analysts who describe an umpire’s job in those terms are oversimplifying.
Seeing the televised rectangle that allegedly represents the strike zone, you might surmise that any 3-year-old should be able to tell whether that little white sphere is in or out of that box. Replay has reinforced the feeling that it’s simple and obvious.
Yet there are many intangibles when it comes to calling balls and strikes. What the umpire’s actually doing is gauging a baseball’s relative position as it travels 95 miles an hour into a three-dimensional area. You’re judging a pitch as it leaves the pitcher’s hand and goes to the catcher’s mitt in less than half a second.
And when it lands, there are considerations beyond the strike zone: Did the batter swing and miss? Did the ball graze the bat even though the batter did not swing? Did the batter commit to the pitch without taking a full swing? Even if the ball is outside the strike zone, if the batter committed to the pitch, it’s a strike. Did he get his body in a hitting position before moving his bat? If he was in a hitting position, how far did the bat travel? Those critical adjustments happen in thousandths of a second. If you’re not trained to use your eyes properly, you’ll miss them.
Then there are the other plays, on the bases and at the plate, that require rule interpretations and judgment calls: catches and no catches, fair and foul balls, safes and outs, and base-running.
For example, the rule book states that a runner must avoid a fielder in the act of fielding a batted ball. If you collided with a shortstop who was bent over in the act of fielding a ground ball, you would be guilty of interference. But if the shortstop had completed the act of fielding and was attempting to tag you when the collision occurred, there would be no penalty. Among elite athletes, this all happens in milliseconds, and to the untrained eye, the plays look the same — both violent collisions with the ball on the ground. This requires an interpretation of when one act ended and another began, and whose rights are in effect. This is a judgment call.
And it has to happen fast. Unlike a judge, an umpire can’t deliberate over days or weeks, reading briefs over and over, debating with law clerks or fellow judges. Umps don’t have that luxury. Both teams, a manager whose job may be on the line and a stadium full of paying spectators are impatiently awaiting an instant ruling.
When baseball was invented in the mid-19th century, it was a bit more like our adversarial court system. There were three umpires: One was hired by the home team and one by the visiting team, and a neutral third party was there to step in if the advocates couldn’t agree. But the teams disagreed so much that, eventually, the sport’s administrators decided that only the one impartial guy was needed. That one guy had to own his decision regardless of how spectators or players reacted. Nowadays, umpires work in crews and own their decisions as a crew. And at the major league level, replay officials thousands of miles away may have the ultimate decision — which you could consider the final appellate court.
As an umpire, you learn to position yourself on the field so that you’re in the most advantageous location to observe a pitch or a play. You learn to read cues and make the proper adjustments when something changes. It can take years of experience, an exhaustive understanding of the rules and consistency in your calls to become a credible umpire, and even then, you’re going to be in the middle of a lot of arguments and controversies. As a mentor of mine reminded me when I started: There was only ever one perfect man, and they crucified him, so umpires have to learn how to handle criticism. As with judging, the tough calls are hardly ever obvious. Balls and strikes are elusive creatures.
To read more CLICK HERE

Sunday, September 9, 2018

Virginia mandates prosecutors turn over investigative information to defense

For defendants facing a criminal trial in Virginia, there is no requirement that prosecutors provide any police reports, witness statements or a witness list to the defense team. Some prosecutors do it anyway; some do not, reported the Washington Post.
But, following years of study and debate, the state Supreme Court will soon mandate that prosecutors share details of their case with the accused. In an order issued Wednesday, the court changed Virginia’s rules of criminal procedure to require commonwealth’s attorneys to allow defendants to review — but not copy — all relevant police reports in a case and all witness statements. Those reports and statements were specifically excluded from pretrial discovery.
In addition, prosecutors will soon be required to provide to the defense a list of names and addresses of all witnesses expected to testify at trial or sentencing, though addresses and other identifying information may be withheld if approved by a judge. The prosecution also must notify the defense if it intends to call any expert witnesses and provide their qualifications and expected testimony, as is done in civil cases but was not required in criminal cases.
“This is a huge deal,” said defense lawyer Alex Levay, a member of numerous task forces which pushed for discovery reform dating from the 1990s. “This is a huge step forward for justice and fairness and providing the information that everyone should be provided when their liberty is at stake.”
“It was long overdue,” said Chief Justice Donald W. Lemons said in an interview with The Washington Post, “and it’s finally here.” He said that as a private attorney, “I handled criminal defense cases, and I do understand the dilemmas.”
Prosecutors who have complained that they must reveal their own cases while defendants may keep their case secret received a new boost from the Supreme Court, too: Defendants now must provide their expected witness list to the prosecution. At least one prosecutor voiced concern that this could create legal quagmires down the road, and one defense attorney said it could lead to witness intimidation by police.
To read more CLICK HERE

Saturday, September 8, 2018

GateHouse: What’s all the fuss about the 25th Amendment?

Matthew T. Mangino
GateHouse Media
September 7, 2018
Suddenly, the 25th Amendment has everyone buzzing inside, and outside, the beltway. Academics, pols and “talking-heads” are all scrambling to make sense out one of America’s most recent constitutional Amendments.
The First Amendment is always in the news, the Second Amendment has taken on a much more prominent role than even the founders intended and the Fourth, Fifth and Sixth Amendments are notable for protecting individual rights, but the 25th Amendment?
What is all the fuss? Thanks to Bob Woodward and his new book “Fear” and a startling, anonymous op-ed in the New York Times — the possibility of replacing the president has become a topic of interest.
The 25th Amendment to the U.S. Constitution addresses what happens to the presidency, and vice presidency, if the president and/or vice president dies, resigns or becomes incapacitated or disabled.
About two years after the assassination of President John F. Kennedy, Congress recommended a succession amendment. On Feb. 23, 1967, President Lyndon B. Johnson, who ascended to the presidency upon Kennedy’s murder, signed the 25th Amendment into law.
Succession has been a problem since the infancy of America. The original Constitution allowed for the vice president to become acting president if the president died.
That wasn’t good enough for John Tyler who became “Vice President Acting President” in 1841 when President William Henry Harrison became the first president to die in office.
Tyler moved into the White House and assumed full presidential powers, including giving an Inaugural Address. He soon fell out of favor with the Whig Party and they expelled him. Without a party, his entire Cabinet resigned except for the Secretary of State. In time, Tyler was the first target of impeachment — and we think things are bad now.
The first three sections of the 25th Amendment are straightforward. First, if the president dies or resigns — think Richard Nixon — the vice president takes over. Second, if the vice president dies or resigns — think Spiro Agnew — the president appoints a replacement approved by Congress. Third, if the president informs the president pro tempore of the Senate and the speaker of the House in writing that he may be temporarily incapacitated — think assassination attempt on Ronald Reagan or colonoscopies for George W. Bush — the vice-president becomes the acting president.
Section 4 of the 25th Amendment is a little trickier.
“Whenever the vice president and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the president pro tempore of the Senate and the speaker of the House of Representatives their written declaration that the president is unable to discharge the powers and duties of his office, the vice president shall immediately assume the powers and duties of the office as acting president.”
Section 4 of the 25th Amendment has never been used, although officials considered invoking the section after the 1981 assassination attempt on Reagan.
However, like impeachment or indictment, the president has Due Process rights. The president can challenge the declaration of incapacity. If he or she does, the vice president and other administration officials must reassert the claims or the president resumes his authority.
If the claim is reasserted then Congress must decide the issue. Within 21 days of assembling, Congress must vote with a two-thirds majority of both houses that the president is unable to fulfill his constitutional responsibilities as president.
If the two-thirds super-majority is not met in both houses of Congress “the president shall resume the powers and duties of his office.”
What are the chances of invoking the 25th Amendment under current circumstances? The president is Republican, the House is Republican and the Senate is Republican — you don’t have to be competent to figure that out.
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, September 7, 2018

21 News Legal Consultant Matt Mangino talks Claudia Hoerig murder trial

Watch my interview on WFMJ-TV21 News CLICK HERE

(WFMJ-TV) Accused killer Claudia Hoerig rejects a plea deal offered by the prosecution.
Hoerig was back in a Trumbull County courtroom for an unexpected pretrial hearing in her upcoming aggravated murder trial.
Hoerig is accused of shooting and killing her husband -- Air Force Major Karl Hoerig back in 2007 at their Newton Falls Home and then fleeing to her native country of Brazil for nearly eleven years.
In a hearing that lasted about five minutes, Claudia Hoerig agreed to sign a speedy trial waiver that allows the September 17th trial date to be pushed back until January 14th of 2019.
One reason the additional time is needed to prepare for the trial is that one of Hoerig's public defenders retired and was replaced by another attorney from Columbus who needs time to get up to speed on the case.
Claudia Hoerig was also given an opportunity before the hearing to avoid going on trial for murder, but her attorney says she rejected a plea deal by the prosecution.
21 News Legal Consultant Matt Mangino says it's not unusual for Hoerig to be offered a plea deal since this is not a death penalty case.
"A conviction could certainly mean life in prison, so is there some agreement that can be reached between prosecutors and her attorneys that would maybe offer her some hope of release down the road," Attorney Mangino said.
Because there is a gag order in the case, the details of the plea offer were not made public.
21 News noticed that Chief Prosecutor Dennis Watkins asked the victim's family to step out of the courtroom for a private discussion shortly before court began.  That meeting may have been to make sure the family was okay with a plea agreement being offered in the case.
"A trial is a painful process for a victim's family to sit there and listen to graphic details of how their loved one was taken from them," Attorney Mangino said.
However, it appears for now that Hoerig wants to roll the dice with a jury trial.
Attorney Mangino said other plea offers can be made all the way up to and even during trial, "Often times pleas can be drawn up and accepted on the courthouse steps as you're about to pick a jury, or in the midst of picking a jury."
A final pretrial is set for December 13th.

Thursday, September 6, 2018

Tennessee prosecutor will no longer pursue driver's license violations

Nashville District Attorney Glenn Funk  he would stop prosecuting a large swath of driver's license violations effective immediately, a new policy that could divert 12,000 charges out of Nashville courtrooms over the next year, reported the Tennessean.
Funk called the move, part of an agreement with the sheriff's office, a "win-win-win." He said it would save the city money while lightening the workload for judges, court staffers and prosecutors.
It also promises to keep thousands of people out of the criminal justice system and away from what Funk called "the collateral consequences" of a criminal charge. Instead, they will be routed through Steering Clear, a sheriff's office program that helps people get their licenses reinstated.
If the program functions as intended, proponents say it would mean fewer people driving illegally on Nashville streets.
In the past, someone who came to court with a misdemeanor charge like driving on a suspended license would need to be booked and fingerprinted. They would have a mug shot taken and appear before a judge, accruing a round of court fees and fines on top of the costs of replacing their licenses.
Often, offenders are unable to pay, so they continue driving illegally, racking up a pile of menial driving violations and corresponding fees that make progress even less likely.
"It's a vicious cycle. It keeps going and going and going," said Maria Toro, the Steering Clear program manager. "We're trying to stop that right at the beginning."
To read more CLICK HERE

Wednesday, September 5, 2018

'If we want to be serious about ending sexual assault and protecting each other, we have to think bigger'

Kristen Houser, chief public affairs officer for the Pennsylvania Coalition Against Rape, said it’s important for the community to know about offenders in their communities, reported the USA TODAY. Many of the Catholic priests named in a scathing grand jury report in Pennsylvania have not and never will be convicted of a crime.
But listing offenders is not going to solve the problem of childhood sexual abuse or sexual violence as a whole, she said.
“The vast majority of people who are perpetrating sex crimes are not on Megan’s Law and never will be,” Houser said. That’s because sex crimes are often unreported, and the statute of limitations renders many cases unprosecutable by the time they are reported.
Since Megan’s Law is only for people who have been convicted, by the time those people end up on a list they’ve already done harm, Houser said. Her goal is to prevent sexual violence, which can’t be done by relying on a list.
“We have an over reliance of thinking that list is there to keep us safe,” Houser said. “That list is one tool to keep us safe. … If we are depending on the sex offender registry to keep our neighborhoods safe, then we are going to fail.”
Houser supports abolishing the statutes of limitation for civil and criminal cases of sex crimes, and adopting a retroactive window for civil cases.
But even that isn’t going to stop sexual violence against children, she said.
“If we want to be serious about ending sexual assault and protecting each other, we have to think bigger,” she said. “We have to get comfortable about learning about things that make us uncomfortable.”
Parents have to recognize the bigger danger to their children is the person who already has their trust – whether a family member, a friend of the family or a caregiver like a coach or teacher – and whom the children trust, who are grooming children for sexual abuse or are already sexually abusing them, Houser said.
“We have to stop saying ‘John wouldn’t do that. Mary wouldn’t do that,’ ” Houser said. “John and Mary do do that, that’s how you end up with a grand jury report.”
Instead, parents have to get comfortable talking to their children in age-appropriate ways, about sexual violence. They have to know where their children are and with whom, and ensure they aren’t in situations that would allow them to be violated, and if such a situation arises, they need to disrupt that, Houser said.
Parents need to hold their schools and youth organizations accountable for their policies and practices that could leave children at risk.
The last thing Houser wants people to do is use the list of names provided in the grand jury report or those offenders listed by Megan’s Law to give them a false sense of security. The people who are listed are the “low-risk category,” Houser said.
“You don’t want to go through life paranoid,” she said, but you also can’t go through life with blinders on. “The reality is this stuff happens, and it happens close to home.”
To read more CLICK HERE

Tuesday, September 4, 2018

Not everyone happy with new California bail system

The new California bail system system includes a presumption against release for people accused of violent felonies and for those who score high on a risk assessment tool, reported The Marshall Project.
People accused of low-level misdemeanors will be booked and released within 12 hours, with some exceptions, such as domestic violence. They won’t undergo a risk assessment.
People accused of high-level misdemeanors or low-level felonies will undergo screening using a risk assessment tool that will typically be administered by county probation departments. Most of those who score “low risk” will be released within 24 hours.
The courts will determine the fate of defendants deemed “medium risk.”
People the test ranks as “high risk” will see a judge at arraignment. Those charged with a violent felony or with other factors that weigh against them, such as a conviction for a violent or serious felony within the last five years, will usually await trial in jail.
For Senator Hertzberg and others who continue to back the new law, including the Service Employees International Union, which represents many relatively low-income workers, removing money from the system is an important step.
“We got into this because we wanted to eliminate the cash bail system,” said Tia Orr, director of government relations for SEIU California. “For us to be the first state in the nation to do this was something we couldn’t walk away from.”
Orr acknowledged the concerns about the bill, particularly that it doesn’t require the gathering and analysis of data on how the new law will play out in courtrooms throughout the state.
To read more CLICK HERE

Monday, September 3, 2018

Chemerinsky on upcoming Kavanaugh confirmation hearing

Erwin Chemerinsky, dean and  professor of law at the University of California, Berkeley School of Law. recently wrote about the upcoming confirmation hearing for Judge Brett Kavanaugh:

When the president and the majority of the Senate are of the same political party, confirmation hearings for the U.S. Supreme Court nominees rarely matter. 
The upcoming confirmation hearings for Brett Kavanaugh are likely to replicate this. But what should be the strategy for Democratic senators in asking questions to try and make the hearings matter?
When asked by an audience member about what precedent he would like to see overruled, Kavanaugh said Morrison v. Olson, a 1988 decision which, 7-1, upheld the constitutionality of the appointment of an independent counsel under the Ethics in Government Act. He also has criticized the court’s decision in United States v. Nixon, a unanimous 1974 decision which held that Richard Nixon was required to comply with a subpoena and produce the White House tapes. In a law review article, Kavanaugh expressed the view that a sitting president should be immune from civil or criminal investigations.
These are extreme views about topics of great importance given the current president. At a time when checks and balances are more important than ever, Kavanaugh should be pressed by senators to explain these views. If indeed these are his positions, my hope is that they might be enough to persuade senators to vote against him.

Sunday, September 2, 2018

GateHouse: A call to preserve judicial independence

Matthew T. Mangino
GateHouse Media
August 31, 2018
James Madison wrote that the “accumulation of all powers, legislative, executive, and judiciary in the same hands ... may justly be pronounced the very definition of tyranny.”
In America we have three separate but co-equal branches of government — executive, legislative and judicial. The founding fathers created a system of checks and balances that require a certain level of mutual respect.
The judicial branch must be independent and not be influenced by bias or politics. To suggest otherwise undermines the court’s independence. Unfortunately, the courts are under attack in this country.
In June 2016, then-candidate Donald Trump said that U.S. District Judge Gonzalo Curiel of the Southern District of California could not be impartial when deciding the highly contested future of Trump University because of his “Mexican heritage.” His vitriol toward the judiciary has been nonstop ever since.
Charles Geyh, an Indiana University law professor and expert on judicial conduct and ethics, told the Washington Post that such bravado is sending a dangerous message, “As the leader of the free world, I should be able to do what I choose. The court shouldn’t be able to get involved.”
Geyh said Trump’s attitude shows a lack of understanding of the equal roles of the three branches of government, specifically of the judiciary’s job to serve as a check on the executive branch.
Such attacks upon judges and judicial decisions undermines the legitimacy of the courts. The attacks are not limited to Trump. Recently, Pennsylvania Governor Tom Wolf asked the state’s Judicial Conduct Board to review a decision by a county judge who let a father have unsupervised visits with his child before the father beat the child to death and killed himself.
The child’s relatives are calling for the judge’s removal, and have a petition with 37,000 signatures to bolster their efforts. Not unlike the successful effort of Californians who voted to recall the judge who sentenced a former Stanford University swimmer convicted of sexual assault.
Santa Clara County, California Judge Aaron Persky was removed from office after he sentenced Brock Turner to six months in jail, after prosecutors argued for a 7-year prison sentence, for sexually assaulting a young woman on campus.
Jules Epstein a law professor at Temple University Law School recently wrote in the Philadelphia Inquirer, “We live in a country where the judiciary is under attack ... Americans want and need judges to make tough decisions without looking over their shoulders.”
Samuel Stretton, an ethics lawyer told the Inquirer, “You don’t get judicial discipline just because a judge makes a decision that turns out to be wrong, as long as it was made fairly, honestly and based on the record.”
The sad truth is that we have let politicians put their own personal interests before the interests of the nation. I’m not suggesting blind adherence to the courts. There is always room to challenge an unjust decision.
The place for that challenge is not at a press conference or on Twitter. Judicial opinions can be reviewed. Legislation can be enacted and an executive can use his or her authority to veto, issue executive orders or use the bully pulpit to rally support for change.
A governor or president’s disrespect and contempt for one of the bedrock principles of democracy demonstrates why an independent judicial branch is essential.
The executive branch should not undermine the authority of the judicial branch, nor should the judicial branch circumvent the constitutional foundation of this nation. Our system of checks and balances is a shining example of democracy.
This 231 year experiment in governance works best when each branch accords the others a certain level of deference — not blind faith — but dignity and respect.
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

Saturday, September 1, 2018

The Crime Report: Why Can’t We Rein in Police Misconduct? Blame Prohibition

Matthew T. Mangino
The Crime Report
August 31, 2018
Prohibition in America lasted 13 years—until 1933, when President Franklin D. Roosevelt signed a “beer bill” as one of his first acts in office. The Twenty-First Amendment—­the only constitutional amendment ever to reverse an earlier amendment—went into effect by the end of that year.
But the collateral damage of Prohibition still reverberates through the criminal justice system.
Much has been made of the gangland violence that punctuated Prohibition. Mobsters like Al Capone, who made millions during Prohibition, would stop at nothing to corner the bootlegging market.
However, that was only one facet of the violence.
At times, the police were worse than the mob, and the subsequent efforts to curb Prohibition-era police misconduct have also left a lasting impact on the search for accuracy in prosecutions and limits on excessive force by police officers.
That’s the conclusion drawn by Wesley M. Oliver, a professor at Duquesne University School of Law, in his new book, The Prohibition Era and Policing.
His conclusion is especially worth noting as the nation grapples with multiple cases of police misconduct and the failures to hold law enforcement accountable
Oliver quoted the 1931 The Wickersham Report, formally titled “Report on the Enforcement of the Prohibition Laws in the United States,” which blasted law enforcement during the Prohibition era,
Among its key conclusions:
Pressure for lawless enforcement, encouragement of bad methods and agencies of obtaining evidence, and crude methods of investigation and seizures … started a current of adverse opinion. 
Prohibition created “enormous” opportunities for police corruption, Oliver wrote.
While the potential benefit to crooked cops was obvious, over-zealous “honest” officers often took advantage of the zealous enforcement climate created by Prohibition to violate individuals’ privacy, destroy property, or engage in physical violence—all in the name of stamping out alcohol use.
As Oliver points out, police behavior during this era shifted the focus from procedures to ensure accurate criminal trials to preventing police misconduct. The result was the exclusionary rule.
Thirteen days after the Volstead Act made it a federal crime to manufacture or sell alcohol, the U.S. Supreme Court decided Silverthorne Lumbar Co. v. United States. The Court found that the Fourth Amendment prohibits the government from introducing evidence gathered as the result of an unlawful seizure.
The exclusionary rule was not restricted to illegal searches. At the time, police were practitioners of the “third degree”—violence-induced confessions. The term is better known as torture.
Oliver examines the rigidity of a rule that excludes reliable evidence of criminal conduct because of the manner in which it was obtained or, as Justice Cardoza famously said, the result of the watchman’s “blunder.”
By 1939, not only was illegally obtained evidence being excluded but also any evidence discovered as a result of the illegally obtained evidence. The fruit of the poisonous tree, as it became known, was excluded regardless of its reliability.
About the same time, technology began to get in the way of the U.S. Constitution.
As telephones became more and more useful in criminal enterprises, the High Court was forced to consider the privacy rights of individuals. Oliver meticulously maps out a history of the wiretap, highlighting that the Court’s first foray into wiretapping was a failure—a precursor to the modern Court’s struggle with rapidly evolving technology.
In Olmstead v United States, Chief Justice William Howard Taft concluded that the Fourth Amendment only protected tangible things—persons, papers, and effects. Since the police eavesdropped on telephone calls while clinging to a telephone pole outside the house, and not in the house, there was no intrusion and no violation of the Fourth Amendment.
According to Oliver, wiretapping during Prohibition “created such a backlash that communication over wires became more protected than information in sealed envelopes or effects in one’s home.”
So how does Prohibition affect us today? Oliver examines, with clarity and finesse, the Warren Court’s landmark decisions in Mapp v Ohio (exclusionary rule); Terry v Ohio (stop and frisk); and Miranda v Arizona (right to counsel and to be free of interrogation).
Ignoring police misconduct in favor of more reliable evidence of criminal conduct is not an even exchange.
Oliver wrote that “the Supreme Court’s cases are moving toward eliminating the exclusionary rule.”
Certainly Oliver’s examination of the case law would support that conclusion, but ignoring police misconduct in favor of more reliable evidence of criminal conduct is not an even exchange.
As Oliver writes, the late Justice Antonin Scalia suggested in Hudson v Michigan that the exclusionary rule is obsolete because of an “increasing professionalism of police forces, including a new emphasis on police discipline.”
That increase in professionalism is because of the exclusionary rule— not a reason to abolish it.
Oliver’s work is thought-provoking. Accuracy should be the goal of any system of justice, but protecting the public from unlawful police practices—including excessive force—is also a laudable goal.
Matthew T. Mangino, a regular contributor to The Crime Report, served as an elected District Attorney in Pennsylvania and on the state’s Board of Probation and Parole. He is now 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 Crime Report CLICK HERE

Thursday, August 30, 2018

Epstein: 'We live in a country where the judiciary is under attack'

Jules Epstein a professor of Law and Director of Advocacy Programs at Temple Beasley School of Law wrote the following piece on judicial independence for the Philadelphia Inquirer:

Last week, Gov. Wolf asked Pa.'s Judicial Conduct Board to review decisions by the Bucks County judge who let the father of Kayden Mancuso have unsupervised visits with the 7-year-old girl in the weeks before he fatally beat her and killed himself. Additionally, Mancuso's relative is calling for the judge's removal, an outcry supported by 37,000 petition signers.
Two words shout out against such responses: judicial independence.
We live in a country where the judiciary is under attack, with cries from the President that "our legal system is broken" and judicial decisions put our country "in peril."  But Americans want and need judges to make tough decisions without looking over their shoulders.  And we want lawyers to be able to go into court on new cases without fearing that the judge will make a harsh decision to look tough and appease critics.
Judicial misconduct warrants sanctions.  That includes lying, stealing, doing favors; not showing up for work; or being racist, sexist or otherwise hostile to discrete populations.  Such actions warrant punishment and some may require removal.  But an unwise decision – if this indeed was one – is not misconduct.
Can we know that the judge's decision was wrong, except using hindsight?
In the case of Kayden Mancuso's tragic death, evidence was offered that her father had committed abusive acts toward adults in his past, and suffered from depression.  Data do support the assertion that these behaviors indicate that children in the home may be at risk, but that is just one of 16 factors the law requires a judge to weigh.  Is a judge wrong if the risk is 1 percent versus 15 percent, or if the father has been with this child without violence, or if the spousal abuse occurred years earlier?  Unless the science is clear, the numbers are compelling, and the law makes this the main factor, the judge's decision is not misconduct.
What is needed here?  From the worlds of airplane accidents and medical errors, the judiciary needs what are termed "just culture" reviews and "root-cause analysis."  In plain English, that means studying whether and why the judge's decision was clearly wrong and unjustified, all without punishment; assessing what information should have been considered and how it should have been weighed; and learning how to ensure that the risk of such harm is reduced if not eliminated in future cases.
That may mean more judicial education, both generally and using cases like this as studies; more resources to educate and periodically update judges on reliable social science; and/or a recalibration of the law that weighs more heavily the history of intimate partner violence when determining custody and visitation.
We must protect our children, but not in a way that fails to protect the institution of an independent judiciary.
To read more CLICK HERE

Wednesday, August 29, 2018

Not all states have followed through on #MeToo promises

A nationwide survey by the Associated Press has found not all states have followed through on attempts to develop new harassment and misconduct policies in the wake of the #MeToo movement
The study wrapped up this month and looks back to last October, when #MeToo started picking up steam, reported WHYY in Philadelphia.
In January, the AP found around three-quarters of state legislatures had passed or were considering new harassment and misconduct measures.
But this summer, researchers found only half ultimately took action.
In Pennsylvania, the House passed a resolution to create a task force investigating harassment and discrimination laws for state workers.
A separate resolution to study workplace harassment laws more broadly also passed the House but stalled in the Senate.
More than a dozen other bills have been introduced, but none have made it past the committee stage. Many of their backers have criticized leaders for focusing too much on study, instead of action.
Internally, the commonwealth’s four caucuses have separate harassment rules.
House and Senate Democrats updated their protocols, and Senate Democrats began bringing in outside investigators—a measure other caucuses already take.
The AP also listed lawmakers who have been caught in harassment allegations.
Pennsylvania had three, including Delaware County GOP Rep. Nick Miccarelli, who’s accused of assaulting and threatening to kill fellow lawmaker Tarah Toohil and another woman he dated.
All three lawmakers named are still in office.
To read more CLICK HERE