Thursday, April 19, 2018

DNA transfer has serious implications for the criminal justice system

Back in the 1980s, when DNA forensic analysis was still in its infancy, crime labs needed a speck of bodily fluid—usually blood, semen, or spit—to generate a genetic profile.
That changed in 1997, when Australian forensic scientist Roland van Oorschot stunned the criminal justice world with a nine-paragraph papertitled "DNA Fingerprints from Fingerprints." It revealed that DNA could be detected not just from bodily fluids but from traces left by a touch. Investigators across the globe began scouring crime scenes for anything—a doorknob, a countertop, a knife handle—that a perpetrator may have tainted with incriminating "touch" DNA.
But van Oorschot's paper also contained a vital observation: Some people's DNA appeared on things that they had never touched.
In the years since, van Oorschot's lab has been one of the few to investigate this phenomenon, dubbed "secondary transfer." What they have learned is that, once it's out in the world, DNA doesn't always stay put.
 Objects bearing DNA of a participant who never touched them, reported the Marshall Project. 
In a sense, this isn't surprising: We leave a trail of ourselves everywhere we go. An average person may shed upward of 50 million skin cells a day. Attorney Erin Murphy, author of "Inside the Cell," a book about forensic DNA, has calculated that in two minutes the average person sheds enough skin cells to cover a football field. We also spew saliva, which is packed with DNA. If we stand still and talk for 30 seconds, our DNA may be found more than a yard away. With a forceful sneeze, it might land on a nearby wall.
To find out the prevalence of DNA in the world, a group of Dutch researchers tested 105 public items—escalator rails, public toilet door handles, shopping basket handles, coins. Ninety-one percent bore human DNA, sometimes from half a dozen people. Even items intimate to us—the armpits of our shirts, say—can bear other people's DNA, they found.
The itinerant nature of DNA has serious implications for forensic investigations. After all, if traces of our DNA can make their way to a crime scene we never visited, aren't we all possible suspects?
Forensic DNA has other flaws: Complex mixtures of many DNA profiles can be wrongly interpreted, certainty statistics are often wildly miscalculated, and DNA analysis robots have sometimes been stretched past the limits of their sensitivity.
But as advances in technology are solving some of these problems, they have actually made the problem of DNA transfer worse. Each new generation of forensic tools is more sensitive; labs today can identify people with DNA from just a handful of cells. A handful of cells can easily migrate.
 To read more CLICK HERE

Wednesday, April 18, 2018

Parents sue Sandy Hook truther Alex Jones

Families of two children killed at Sandy Hook Elementary School have filed lawsuits in Texas against controversial radio talk show host Alex Jones for continually claiming the massacre never happened, the Hartford Courant reports. 
Neil Heslin, the father of Jesse Lewis, and Leonard Pozner and Veronique De La Rosa, whose son Noah Pozner died in the massacre, filed separate lawsuits in Travis County, Tx. The lawsuits allege that Jones’ constantly calling the parents “crisis actors” and insisting the shooting was a false flag operation has defamed them and led to victims’ families receiving death threats. 
The lawsuits were filed in Texas because Jones media company, Infowars, is based in Austin. Both lawsuits seek more than $1 million in damages from Jones, Infowars and a related company, Free Speech Systems LLC.
Jones has been a controversial figure and one of the leading voices in the Sandy Hook truther movement, a group that claims the Dec. 14, 2012 shooting never occurred. Adam Lanza shot and killed 26 people, including 20 first graders, inside the school that day using an AR-15 before killing himself with a handgun. Noah Pozner and Jesse Lewis were in separate classrooms.

Tuesday, April 17, 2018

Virtually no chance the average person will ever use a gun in self-defense

The only way to stop a bad guy with a gun is a good guy with a gun.
It's a common refrain touted by gun rights advocates, who argue that using guns in self-defense can help save lives. But what is the actual number of defensive gun uses?
According to the Pew Research Center, 48 percent of gun owners say they own a gun mainly for protection. But for years, experts have been divided over how often people actually use guns in self-defense. The numbers range from the millions to hundreds of thousands, depending on whom you ask.
The latest data show that people use guns for self-defense only rarely. According to a Harvard University analysis of figures from the National Crime Victimization Survey, people defended themselves with a gun in nearly 0.9 percent of crimes from 2007 to 2011, reported NPR.
David Hemenway, who led the Harvard research, argues that the risks of owning a gun outweigh the benefits of having one in the rare case where you might need to defend yourself.
"The average person ... has basically no chance in their lifetime ever to use a gun in self-defense," he tells Here & Now's Robin Young. "But ... every day, they have a chance to use the gun inappropriately. They have a chance, they get angry. They get scared."
To read more CLICK HERE

Mangino discussed Michael Cohen Search Warrant on WFMJ-TV21 Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today regarding President Trump and his attorney Micheal Cohen.
To watch the interview CLICK HERE

Monday, April 16, 2018

Black student knocks on door for directions after missing school bus, homeowner shoots at him

Fourteen year old Brennan Walker went looking for help at at a suburban Detroit home when he missed his school bus.  
Walker was trying to walk the bus route to Rochester High School after he woke up late and missed his bus. His mom had taken his phone away, so he didn't have that with him to get directions. So he knocked on a stranger’s door for help --the homeowner shot at him, reported FOX2.
"I got to the house, and I knocked on the lady's door. Then she started yelling at me and she was like, 'Why are you trying to break into my house?' I was trying to explain to her that I was trying to get directions to Rochester High. And she kept yelling at me. Then the guy came downstairs, and he grabbed the gun, I saw it and started to run. And that's when I heard the gunshot," he says.
Thankfully, the man missed. Brennan kept running, hid, then cried.
"My mom says that, black boys get shot because sometimes they don't look their age, and I don't look my age. I'm 14; but I don't look 14. I'm kind of happy that, like, I didn't become a statistic," he says in retrospect.
Oakland County Sheriff Deputies arrived soon after to the home on South Christian Hills Drive and took the woman's husband into custody.
Lisa was at work when she got the call. She says her husband is deployed in Syria, so she was assuming she was getting a call about him until she realized they were calling about Brennan. She dropped everything and immediately went to the substation to be with her son. 
That's where investigators told her the family's Ring doorbell recorded the encounter. Investigators watched the video with Brennan and his mom. She says the video confirmed their suspicions. 
"One of the things that stands out, that probably angers me the most is, while I was watching the tape, you can hear the wife say, 'Why did "these people" choose my house?'" she says, before taking a long pause. "Who are, "these people?" And that set me off. I didn't want to believe it was what it appeared to look like. When I heard her say that, it was like, but it is [what it looks like]."
To read more CLICK HERE

Sunday, April 15, 2018

Overall decrease in capital punishment worldwide

A new report released by Amnesty International shows an overall decrease in capital punishment during 2017, reported the Catholic News Agency.
However, the group reported, many countries are still implementing executions which ignore international law.
Amnesty International released the report this week, highlighting the execution and death penalty rates around the globe.
The organization particularly applauded sub-Saharan Africa, where multiple countries have made strides in reducing or eliminating capital punishment in 2017.
“Now that 20 countries in sub-Saharan Africa have abolished the death penalty for all crimes, it is high time that the rest of the world follows their lead and consigns this abhorrent punishment to the history books,” said Salil Shetty, secretary general for Amnesty International.
To read more CLICK HERE

Saturday, April 14, 2018

GateHouse: No Mr. President, the attorney-client privilege is not dead

Matthew T. Mangino
GateHouse Media
April 14, 2018
“Attorney-client privilege is dead!” President Donald Trump tweeted this week after the office of his attorney Michael Cohen was raided by the FBI.
The attorney-client privilege protects most communications between a client and attorney, permitting those communications to be kept confidential and certainly not accessible to law enforcement or prosecutors.
To avail oneself of the privilege, the client and attorney must have a relationship with regard to a specific matter. A client cannot claim to a have an attorney for “all matters.” If an attorney is hired for a bankruptcy, the client’s conversations about tax evasion may not be protected.
The attorney-client privilege insures that a client can speak candidly with his lawyer, providing information necessary to develop an effective legal strategy for a specific matter.
President Trump has said that he did not know what Cohen was doing with respect to the alleged payments to Stormy Daniels — payments that appear to be the focus of the search on Cohen’s office, home and hotel room. He has said he was unaware of the payments and did not know why the payments were made.
The president’s announcement of the death of the attorney-client privilege is a bit premature. The only way that Trump can invoke the attorney-client privilege is if he retained Cohen for the specific purpose of negotiating with, or paying-off, Stormy Daniels.
During the raid of Cohen’s office, according to the New York Times, the FBI took computers, cell phones, business records and other documents related to the Daniels payment, and a $150,000 payment made by the National Enquirer, to Karen McDougal, a former Playboy model who says she also had an affair with Trump.
In addition, Cohen is known to tape and store telephone conversations, reported the Washington Post. Those tapes may now be in the possession of the FBI.
If those communications show that President Trump knew about hush money paid to the women and conspired to deliver it, that could be construed as evidence of facilitating unreported contributions to his campaign — a felony.
Even if Trump has an attorney-client relationship with Cohen there are exceptions to the privilege.
The crime-fraud exception provides that communications with an attorney made in furtherance of criminal activity are not protected. You can tell your attorney about your own criminal conduct and that will be privileged. But you can’t use communications with your attorney to help you commit ongoing or future criminal acts.
If paying hush money to Daniels or McDougal is a crime and that crime was committed by Cohen with the president’s consent, the privileged is waived.
The larger issue is that the United State Attorney for the Southern District of New York was able to get a search warrant. In order to get a search warrant the U.S. Attorney must apply to a federal judge or magistrate. The application for a search warrant would be filed with an affidavit of probable cause. That affidavit must contain sufficient information to convince the judge to approve the warrant.
There is no question that it is unusual for a U.S. Attorney to seek documents from a lawyer that may contain information relating to a client. The DOJ does not take that responsibility lightly. A U.S. Attorney needs the approval of a supervisor before seeking a search warrant for such sensitive material.
Since the potential client in this case is the President of the United States the review went all the way to the top — sort of. Attorney General Jeff Sessions had recused himself from the special counsel probe of Russia meddling in the 2016 election. The second in command at the DOJ, Deputy Attorney Rod Rosenstein, approved the search warrant.
Latrice Bridges Copeland, a law professor at Penn State University told the Washington Post, “This is a big deal.” Bridges Copeland believes that the approval of the search warrant signals that the attorney and client — in this case Cohen and Trump — may have been working together in furtherance of a crime. “It’s not easy to make that showing to the court and get a search warrant on and attorney.”
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, April 13, 2018

PA Gov. Wolf calls for criminal justice reform

Gov. Tom Wolf is calling on lawmakers to pass a package of initiatives designed to reform the state's criminal justice system, reported the Carlisle Sentinel.
The initiatives include bail and pre-trial reforms.
They would also adopt a standard assessment tool for sentencing, create clean slate legislation to allow those convicted to re-enter society after being released, and make sure those without money have access to legal help.
Pennsylvania is the only state that does not provide state funding to a public defender system.

Thursday, April 12, 2018

Scientists call for increased research and resources for forensic science

With forensic science facing mounting scrutiny as it plays an increasingly prominent role in the administration of justice, six scientists who recently served on the National Commission on Forensic Science are calling on the scientific community at large to advocate for increased research and financial support of forensic science as well as the introduction of empirical testing requirements to ensure the validity of outcomes, reported 
"Forensic reform is challenging because the field of law is based on historical precedent, whereas science builds on itself to advance continuously," says Thomas Albright, professor and director of Salk's Vision Center Laboratory who has studied why eyewitnesses fail. "But if the ultimate goal of a legal system is to deliver justice, then forensic evidence should be based on up-to-date methods that have been scientifically validated."
Since the 1990s, when DNA exonerations revealed problems with some forensic disciplines, various groups have been calling for reform. This led to a landmark 2009 report by the National Academy of Sciences (NAS) that found many forensic practices were highly subjective and paved the way for the 2013 establishment of the National Commission on Forensic Science to examine such practices. A number of independent scientists served on the commission, along with forensic scientists, attorneys, judges and law enforcement personnel, from 2013 to 2017 when the Department of Justice declined to renew its charter.
Six of the independent scientists—Albright, Suzanne Bell of the University of West Virginia; Sunita Sah of Cornell University; S. James Gates, Jr., of Brown University; M. Bonner Benton of the University of Arizona and Arturo Casadevall of Johns Hopkins University—write in the new paper that the complex methodologies of forensic science, which range from DNA analysis to pattern recognition to chemical composition, must be subjected to scientific testing rather than relying on historical precedent. They cite the example of bite-mark identification, which has been scientifically discredited and has resulted in false convictions, but continues to be accepted in U.S. courts due to precedent.
"In many forensic procedures, such as fingerprint or footprint or bullet matching, decisions about the similarity of visual patterns are made by people—and people make mistakes," says Albright, who holds the Conrad T. Prebys Chair in Vision Science. In 2017, Albright published a paper in PNAS about an NAS study on eyewitness testimony that described why identification errors occur and how they can be prevented. "We encourage the scientific community to welcome forensic scientists into their ranks to help identify the causes of forensic failures, predict when they might occur and lend support to developing strategies to mitigate or prevent them," says Albright.
To read more CLICK HERE

Wednesday, April 11, 2018

CA Sheriff: It is cheaper for police to kill a suspect than 'cripple'

The sheriff of Kern County, California with the highest rate of killings by police in the U.S. once said it is “better financially” for local authorities if officers kill suspects rather than badly injure them, reported the Guardian.
Sheriff Donny Youngblood, who is currently running for re-election, made the remarks while addressing rank-and-file officers during his first campaign in 2006. Video of the meeting was recently found by an officers’ union.
“You know what happens when a guy makes a bad shooting on somebody and kills them? Three million bucks and the family goes away after a long back and forth,” Youngblood said.
He went on to say: “Which way do you think is better financially – to cripple them or kill them – for the county?” An unidentified man offscreen said “kill them”, to which Youngblood replied: “Absolutely. Because if they’re crippled we get to take care of them for life. And that cost goes way up.”
The sheriff’s office did not immediately respond to a request for comment.
To read more CLICK HERE

Tuesday, April 10, 2018

President Trump: 'Why don’t I just fire Mueller?'

President Donald Trump has once again lambasted the ongoing investigation into Russian meddling in the 2016 election and chastised Attorney General Jeff Sessions for recusing himself from the probe, reported the Huffington Post.
Trump appeared to directly float the idea of firing special counsel Robert Mueller at the start of his military leadership meeting on Monday, calling the special counsel’s investigation a “disgrace” and defending his firing of former FBI Director James Comey as the “right thing” to do.
“Why don’t I just fire Mueller?” Trump asked in response to a reporter’s question. “Well, I think it’s a disgrace what’s going on. We’ll see what happens, but I think it’s really a sad situation ... Many people have said you should fire him. Again, they found nothing, and in finding nothing, that’s a big statement.”
To read More CLICK HERE

Monday, April 9, 2018

President Trump's comments and the facts on crime and justice are not compatible

President Trump made 24 false or misleading claims in two recent public speeches, says the Washington Post Fact Checker. Here is a roundup by The Crime Report of several pertaining to crime and justice: 
1) The President said, “We started building our [Mexican border] wall … We have $ 1.6 billion… and we’ve already started.” The spending bill Trump signed last month includes $1.6 billion for fencing along the U.S.-Mexico border, not for Trump’s wall, the Post says. Parts of this all-fence project date to 2009, long before Trump took office.
2) Trump said that, “A very important, and respected, in some circles, Democrat, said we want to get rid — we should get rid of our Second Amendment.” Trump was referring to retired Supreme Court Justice John Paul Stevens, who actually is a Republican.  
3) Speaking of the bump-stock accessories for guns, Trump said, “We got rid of the bump stocks. The bump stocks, now, are under very strict control, which I think everybody agrees is fine.” Actually, the administration has proposed to ban bump-stock accessories for firearms, but the rulemaking process takes time and the ban is not finalized. 
4) On federal judges, the president said he had appointed 145  district judges. In fact, since Trump took office, the Senate has confirmed 14 appellate judges, 14 district judges, and one Supreme Court justice. Another 45 district court nominees and 10 appellate court nominees are awaiting confirmation. Trump has set a record with judicial appointments, but it’s more modest than he portrays.
To read more CLICK HERE

Saturday, April 7, 2018

GateHouse: GAO finds racially disproportionate discipline in schools

Matthew T. Mangino
GateHouse Media 
April 6, 2018
Black students are disciplined at school more often and more harshly than white students according to a report, issued this week by the Government Accountability Office (GAO).
In 2014, President Barack Obama released guidance on school discipline in collaboration with the U.S. Department of Education and the U.S. Department of Justice.
According to the guidance, public schools are prohibited, by federal law, from discriminating in the administration of student discipline based on protected characteristics — race, gender, disability and sexual orientation.
When the guidance was released, incidents of school violence had already begun to decrease overall, but schools were still struggling to create positive, safe environments. The guidance was in response to the significant numbers of students who miss class due to suspensions and expulsions — even for minor infractions of school rules. Students of color and students with disabilities were disproportionately impacted.
This week’s report is the first government-sponsored analysis of discipline policies since the Obama administration urged schools to examine the disproportionate rates of student punishment.
GOP members of Congress have argued that the Obama-inspired guidance has led to more school violence because students who may have otherwise been removed from school have continued to cause mayhem. Republicans have even tried to link the guidance to the recent mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. The GAO report appears to support Obama’s concerns.
According to the report, the issue of who gets disciplined and why is complex. The GAO suggests that studies they reviewed demonstrate that implicit bias — stereotypes or unconscious associations about people — on the part of teachers and staff may cause them to judge students’ behaviors differently based on the students’ race and sex.
Studies show that discipline decisions can result in certain groups of students being more harshly disciplined than others.
According to the GAO, one study found that black girls were disproportionately disciplined for subjective interpretations of behaviors, such as disobedience and disruptive behavior. A separate study used eye-tracking technology to show that, among other things, teachers gazed longer at black boys than other children when asked to look for challenging behavior based on video clips.
The GAO found that during the 2013-14 school year, black students accounted for 15.5 percent of all public school students, but represented about 39 percent of students suspended from school.
Removing students who misbehave from school is counterintuitive. In “From the School Yard to the Squad Car: School Discipline, Truancy, and Arrest,” published in The Journal of Youth and Adolescence in 2014, a connection was found between mandated leaves of absence from school and the likelihood of arrest for juveniles.
The researchers found that youth are more likely to be arrested on days they are suspended from school. The increased likelihood of arrest is strongest among youth who do not have a history of criminal behavior.
According to the Journal of Counseling and Development a suspension is more likely to cause a child to drop out of high school than any other factor, including low socioeconomic status, not living with both biological parents, a high number of school changes, and having sex before age 15. Students who are expelled from school are even less likely to graduate from high school.
The consequences of not graduating from high school are severe, according to the American Bar Association. Children who do not finish high school are 3.5 times more likely to be arrested as adults. Additionally, approximately 82 percent of the adult prison population is composed of high school dropouts.
The GAO report is a step in the right direction and should vindicate the concerns of the Obama administration, while quelling the rumblings that federal discipline guidance for school districts is unwarranted or overreaching.
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

Dallas County, Texas bail hearings conducted in secret

The Dallas County Jail books about 67,000 people every year, a population roughly equal to that of the Houston suburb Missouri City, reported the Texas Tribune.
The conveyor belt driving Dallas County’s hulking jail complex, the seventh largest in the country, operates in a courtroom deep inside the Lew Sterrett Justice Center downtown. That’s where magistrates hold around-the-clock hearings to determine bail. On any given day, about 70 percent of the jail’s roughly 5,000 inmates are there because they can’t afford the price tag placed on their pretrial freedom. Arrestees say that before they enter bail hearings, jailers warn them that the price could increase if they talk without permission. The hearings often last less than 60 seconds.
Though the bail hearings have serious ramifications for defendants, they are largely conducted in secret. Attorneys, family members, community activists and journalists are not allowed inside these court proceedings. The Dallas County Sheriff’s Department says that’s because guards “need to focus on the safety of the inmates and magistrate judge.” In January, lawyers with the ACLU of Texas, Civil Rights Corps and the Texas Fair Defense Project sued Dallas County officials on behalf of several poor people, many of them homeless, who were stuck in jail because they couldn’t afford bail. The lawsuit alleges this system of “wealth-based detention” lets rich defendants buy their freedom and violates poor arrestees’ constitutional rights to equal protection and due process.
The attorneys are also suing on behalf of two advocacy groups, Faith in Texas and the Texas Organizing Project (TOP), which have tried and failed for months to gain access to Dallas County’s bail hearings. Faith in Texas organizer Brittany White says, “They’re making decisions about someone’s freedom in secret.”
Elizabeth Rossi, an attorney with Civil Rights Corps, a Washington, D.C.-based nonprofit, alleges that Dallas County is violating the First Amendment rights of community members who want to monitor court hearings. “These hearings result in the mass pretrial detention of poor people and people of color,” Rossi said. “Dallas must open these hearings so that a bright light can be shed on the devastating, mass violations of civil and human rights that are happening in the jail every day.”
For several weeks, I asked multiple Dallas County departments to explain why the public can’t view these bail hearings; none would discuss the matter, citing the pending bail lawsuit. Dallas County felony court judge Brandon Birmingham, a defendant in the case, wouldn’t comment either, but he has in the past escorted at least one reporter to the jail to observe hearings. Citing his busy schedule, Birmingham wouldn’t do the same for me during a trip to Dallas in late March, though he offered to help sometime in the future. Sheriff’s department spokesperson Melinda Urbina later sent me an email stating Birmingham “did not obtain permission from us to allow an observer to enter,” and that bail hearings are closed to the public for security reasons.
It’s not hard to imagine why Dallas County likes to conduct its bail hearings in private. In Harris County, video footage of hearings, which are open and recorded, has become critical evidence in a nearly identical lawsuit and also bolstered advocates’ campaign to build public support for reform. Footage of magistrates browbeating poor defendants was even cited in the federal court ruling that declared Harris County’s bail practices unconstitutional last year.
The footage also inspired state Senator John Whitmire, D-Houston, to file a complaint with the State Commission on Judicial Conduct, which in January issued rare public admonishments against three Harris County magistrates for refusing to consider other conditions of release for poor people, such as so-called pretrial bonds that use monitoring instead of cash to make sure that defendants show up for court. The fallout from those videos has even raised the question of whether elected judges lied about Harris County’s bail practices.
Rossi argues that closed-door legal proceedings are just one reason Dallas County’s bail system is arguably worse than Houston’s. In Dallas, according to the lawsuit, poor arrestees languish even longer in jail. Rossi says that her group has found indigent people charged with petty crimes stuck in lockup for nearly two weeks on $500 bail, still without a lawyer or court date. She says she never encountered that kind of neglect, “where someone appears to get lost in the jail,” in Harris County.
In February, a federal appeals court largely upheld a groundbreaking ruling in the Harris County case that declared it unconstitutional to jail people before trial just because they’re too poor to pay bail. The ruling concluded that a heavy reliance on cash bail exacerbates racial disparities in the criminal justice system and leads to an unacceptable pattern of “sentence first, conviction after.” The ruling also cited research showing that people in jail are much more likely to plead guilty and face longer jail sentences compared to those who can afford to pay for pretrial release.
To read more CLICK HERE

Friday, April 6, 2018

Toll jumping can now be a felony in Pennsylvania

Drivers who routinely don’t pay tolls in Pennsylvania could be convicted of a felony, according to the Wall Street Journal.
The Keystone State’s Turnpike Commission has begun to file criminal charges against motorists it deems egregious scofflaws. The recent initiative involves enlisting local prosecutors to pursue theft-of-services criminal cases, which reach felony status when the sum owed exceeds $2,000.

Thursday, April 5, 2018

Study: Black students disciplined more often and more harshly than white

Black students continue to be disciplined at school more often and more harshly than their white peers, often for similar infractions, according to a new report by Congress’s nonpartisan watchdog agency, which counters claims fueling the Trump administration’s efforts to re-examine discipline policies of the Obama administration. reported the New York Times.
The report, issued by the Government Accountability Office, is the first national governmental analysis of discipline policies since the Obama administration issued guidance in 2014 that urged schools to examine the disproportionate rates at which black students were being punished.
Critics of the Obama-era guidance have questioned whether students of color suffer from unfair treatment under school discipline policies. The G.A.O. found that not only have black students across the nation continued to bear the brunt of such policies, but the effects were also felt more widely than previously reported — including by black students in affluent schools.
Additionally, the agency found that school suspensions began to fall the year before the Obama administration urged schools to move away from the overuse of such measures, undermining claims that the guidance forced schools to cut suspensions. While the Obama administration’s aggressive civil rights investigations did reveal that black students were subjected to harsher treatment than their white peers for similar infractions, the G.A.O. found that it did not impose any new mandates on districts to reduce their suspension rates.
The findings are likely to bolster arguments for preserving the 2014 guidance and undercut conservative claims that the guidance has resulted in federal overreach and a decline in school safety.
Education Secretary Betsy DeVos hosted groups of educators and advocates for and against the disciplinary guidance, the 12th set of round tables the department has held in the past year — and the first Ms. DeVos attended in person.
Nina Leuzzi, a prekindergarten teacher at a Boston charter school, said she kept her word to her class of 20, predominantly minority 4-year-olds, in making her case to the secretary for why the guidance should stay. When the children asked her why she was traveling to Washington, she told them it was to keep them safe.
“Rescinding this would send the message that there is no longer a concern about discrimination in our schools,” Ms. Leuzzi said.
Nicole Stewart, a former vice principal in San Diego, told Ms. DeVos that pressures to reduce suspensions had made schools dangerous. She said administrators did not expel a student with a knife at her school because he had a disability. Weeks later, he slit a student’s throat, she said.
“It is no wonder that our kids don’t think that rules and consequences apply to them,” Ms. Stewart said. “We are not modeling what consequences look like in the real world.”
To read more CLICK HERE

Wednesday, April 4, 2018

The Cadaver King: Racism, opportunism or both?

Elie Mystal’s New York Times book review of “The Cadaver King and the Country Dentist,” by the Washington Post journalist Radley Balko and Tucker Carrington, a law professor at the University of Mississippi, provides insight to an interesting twist on the impact of “junk science", particularly in the South.
In The Cadaver King there is no murder mystery. The book details the wrongful convictions of two men, Kennedy Brewer and Levon Brooks, in the separate murders of two girls in the same rural Mississippi town in the early 1990s. But the real killer of both 3-year-olds is revealed to the reader before the wrong men are even put on trial. We are also spared the anguish of wondering if the system will ever get it right, for we know the men have already been freed thanks to the work of the nonprofit criminal exoneration organization the Innocence Project.
The crime having been solved early on, Balko and Carrington devote the bulk of the book to pulling back the curtain on the justice system’s little-known but systemic problem that put Brewer and Brooks behind bars: faulty and biased forensic evidence. Junk science convicted these men; real science set them free. The inability of judges and jurors to tell the difference is why innocent men languish in jail while the prosecutors who put them there run for higher office.
Mississippi would have been better served by the actual actors from “CSI” conducting its forensic investigations than the autopsy specialist Steven Hayne and his “sidekick,” the bite-mark analyst Michael West. The book isn’t even really about exposing these men, as they’re already disgraced. Instead, Balko and Carrington have written a cry for help: “What happened in Mississippi may be the most wide-reaching scandal to date. Few states have encountered revelations that strike as forcefully at the very foundation of its criminal justice system. And few states’ public officials have shown less concern or taken less action after having learned of the problem.”
But, like so many who have demanded criminal justice reform, the authors are likely to fail. Not because they’re wrong, or because not enough judges and lawyers and politicians know they’re right. But because fixing the problem is just too hard.
The real tension in Balko and Carrington’s book is why it’s too hard — whether our society’s tendency to incarcerate innocent individuals results from basic incompetence, or bald racism.
The authors propose an answer: “There’s no question that Hayne and West thrived in a system that was created and honed during Jim Crow, and that for decades was used to reinforce the segregated social order. There’s also no question that the system’s problems continue to disproportionately affect minority and poor populations across the state. But no one has described Hayne as a racist. … Instead, Hayne could be described more as an opportunist.”
The bigotry in our criminal justice system is one of its key features, not an unfortunate bug. Mississippi wouldn’t allow quack science to convict the wrong people if white citizens primarily bore the burden. The namesake “bad guys” in this book are allowed to exist because their work puts black men behind bars, not in spite of it.
What’s the remedy for a person who has been convicted based on so-called science that we now know to be faulty, corrupt or both? One doesn’t need a law degree to answer that question. Common sense or a modicum of human decency suggests that those found guilty based on bad evidence deserve justice. But to grant all such retrials would be too much for this country’s criminal courts to bear.
To read more CLICK HERE

Tuesday, April 3, 2018

Louisiana's racist origin for non-unanimous criminal verdicts

Louisiana's unique law that allows a jury to send a person to prison for life without the consent of all 12 jurors did not happen by accident, reports the New Orleans Advocate.
The drafters of the state constitution Louisiana adopted in 1898 said they aimed to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana,” primarily by scrubbing from the rolls nearly all of the roughly 130,000 black people then registered to vote.
But delegates knew they couldn’t simply ban black people from the voting booth or jury service without running afoul of the 14th and 15th amendments. The U.S. Supreme Court had explicitly said so. Instead, the jury laws those delegates drew up allowed for convictions with only nine of 12 jurors agreeing, meaning that if one, two or even three black people made it onto a jury, their votes wouldn’t matter.
These days, 10 votes are required for conviction instead of the original nine, and today’s defenders of split verdicts say Louisiana’s law now stands not for racism but for efficiency, by limiting hung juries and potential retrials.
But the effects are the same, according to an exhaustive, first-of-its-kind analysis by The Advocate.
The Advocate reviewed about 3,000 felony trials over six years, turning up 993 convictions rendered by 12-member Louisiana juries in which the newspaper was able to document the jury votes.
The remainder included trials ending in hung juries, those halted by last-minute plea deals, lesser felony trials with six-member juries and many others with scant records.
Although the majority-verdict law disadvantages all defendants, the newspaper’s review found that its effects on black people accused of crimes are especially profound. It acts as a capstone to a trial system that becomes more tilted against black defendants at each stage: when jurors are summoned, when they’re picked for juries, and in deliberation rooms where voices of dissent can be ignored.
Black people make up roughly one-third of the population in Louisiana, but they comprise two-thirds of state prisoners and three-fourths of inmates serving life without parole. Louisiana, America’s incarceration capital, also leads the nation by far in these life sentences, nearly all of them the result of jury verdicts.
The newspaper’s analysis found that 40 percent of trial convictions came over the objections of one or two holdouts. When the defendant was black, the proportion went up to 43 percent, versus 33 percent for white defendants. In three-quarters of the 993 cases in the newspaper's database, the defendant was black.
In many cases, black defendants are not being judged by juries “of their peers” — at least not racially speaking. The newspaper scrutinized what happened to nearly 41,000 prospective jurors who reported for duty in felony trials in nine of the state’s 10 busiest courthouses and found that these jury pools were whiter than their communities, and the juries picked from them were whiter still.
The average jury in East Baton Rouge Parish, for instance, has nearly two fewer black people than it would if the panel reflected the population. In St. Tammany Parish, juries have about half as many black members as the parish's population.
Oregon, the only other state to allow split verdicts in felony cases, demands unanimity when the charge is murder.
If that 10-2 scenario arose in any of the other 49 states, the judge likely would order the jurors to keep working until one side swayed the other to reach unanimity — or until the deadlock was too hopeless to break. Then, the judge would declare a hung jury and a mistrial.
Yet another possible outcome would be a compromise, with the jurors settling on a verdict of manslaughter rather than murder.
It’s hard to predict which way the chips would fall, even for some dissenting jurors themselves.
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Monday, April 2, 2018

Trump administration will not release pregnant immigrants from detention

The Trump administration will no longer seek to automatically release pregnant immigrants from detention -- a move in line with the overall efforts by the administration to hold far more immigrants in custody than its predecessors, reported CNN.
The change in policy could pave the way for more pregnant women to be held in detention facilities while they await lengthy court proceedings about whether they can stay in the US, facilities that are already decried by critics for tough conditions. The decision comes as immigration advocates have assailed the administration's efforts to hold more immigrants in detention writ large and its increased arrest of noncriminal immigrants.
The change in policy was sent by Immigrations and Customs Enforcement to Congress on Thursday morning and later announced in a conference call with reporters. The policy was first finalized in December, officials said.
According to Philip Miller, a top official in ICE's Enforcement and Removal Operations, as of March 20, there were 35 pregnant women in detention in ICE's custody. Since December, 506 pregnant women have been detained, Miller added.
He said it was difficult to estimate how many more pregnant immigrants would be detained under the new policy. Immigrants who are caught trying to cross the border illegally already are required to be in detention -- although once they pass a threshold test for asylum claims, the government can choose to release them. He also could not say how the policy applied to nursing mothers.
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Sunday, April 1, 2018

Can President Trump pardon himself? Richard Nixon's legal team said no

Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School. Richard Painter, a law professor at the University of Minnesota, was chief White House ethics lawyer for President George W. Bush from 2005 to 2007 and is vice-chair of Citizens for Responsibility and Ethics in Washington (CREW). Norman Eisen, a senior fellow at the Brookings Institution, was chief White House ethics lawyer for President Barack Obama from 2009 to 2011 and is chair of CREW. They wrote in the Washington Post:

Can a president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” We agree.
The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.
The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.
The pardon provision of the Constitution is there to enable the president to act essentially in the role of a judge of another person’s criminal case, and to intervene on behalf of the defendant when the president determines that would be equitable. For example, the president might believe the courts made the wrong decision about someone’s guilt or about sentencing; President Barack Obama felt this way about excessive sentences for low-level drug offenses. Or the president might be impressed by the defendant’s subsequent conduct and, using powers far exceeding those of a parole board, might issue a pardon or commutation of sentence.
Other equitable considerations could also weigh in favor of leniency. A president might choose to grant a pardon before prosecution of a person when the president believes that the prosecution is not in the national interest; President Gerald Ford pardoned Nixon in part for this reason.
Or a president may conclude that even if a person may have committed a crime, he was acting in good faith to protect the national interest; President George H.W. Bush pardoned former defense secretary Caspar Weinberger in the Iran-contra affair in part for this reason.
In all such instances, however, the president is acting as a kind of super-judge and making a decision about someone else’s conduct, the justice of someone else’s sentence or whether it is in the national interest to prosecute someone else. He is not making a decision about himself.
Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: “One cannot be Judge and attorney for any of the parties.”
The Constitution embodies this broad precept against self-dealing in its rule that congressional pay increases cannot take effect during the Congress that enacted them, in its prohibition against using official power to gain favors from foreign states and even in its provision that the chief justice, not the vice president, is to preside when the Senate conducts an impeachment trial of the president.
The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block.
We know of not a single instance of a self-pardon having been recognized as legitimate. Even the pope does not pardon himself. On March 28, 2014, in St. Peter’s Basilica, Pope Francis publicly kneeled before a priest and confessed his sins for about three minutes.
President Trump thinks he can do a lot of things just because he is president. He says that the president can act as if he has no conflicts of interest. He says that he can fire the FBI director for any reason he wants (and he admitted to the most outrageous of reasons in interviews and in discussion with the Russian ambassador). In one sense, Trump is right — he can do all of these things, although there will be legal repercussions if he does. Using official powers for corrupt purposes — such as impeding or obstructing an investigation — can constitute a crime.
But there is one thing we know that Trump cannot do — without being a first in all of human history. He cannot pardon himself.
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