Wednesday, May 23, 2018

Texas executes 'lovers' lane' killer Juan Castillo

The 11th Execution of 2018
After three canceled death dates in one year, lovers' lane killer Juan Castillo was executed on May 16, 2018 after years of protesting his innocence, reported the Houston Chronicle and the Marshall Project. He was the sixth man this year to meet his end in the Huntsville death chamber.
No one from his family was there to watch as he mumbled his final words.
"To everyone that has been there for me you know who you are," he said. "Love ya'll. See y'all on the other side. That's it."
As the drugs took hold, he struggled to lift his head and look down at his feet.
"I can taste this s---," he added. "S--- does burn."
He began breathing heavily, then stopped a minute later. He was pronounced dead at 6:44 p.m., 23 minutes after the execution began.
Castillo was convicted of killing 19-year-old rapper Tommy Garcia, Jr., in a December 2003 robbery on a San Antonio lovers' lane. He was sentenced to death in 2005.
One night, early in December of 2003, Castillo and his girlfriend teamed up with another couple to plan a robbery, according to court records. Their target — 19-year-old rapper Tommy Garcia, Jr. — counted among the former lovers of Castillo’s girlfriend, Debra Espinosa.
The plan was for Espinosa to lure Garcia to a secluded spot for drugs and sex, and then Castillo and his friend Francisco Gonzales would storm the car and rob their unwitting victim. Espinosa would play along, and Teresa Quintero, Gonzales’ girlfriend, would be the getaway driver.
But things didn’t go quite as planned. Garcia and Espinosa were making out in his 1994 Camaro when Castillo and Gonzales — wearing ski masks and toting guns — attacked. They tore Garcia from the car, and Castillo ended up shooting him seven times, according to court records.
Afterward, Gonzales and Espinosa were quickly arrested and agreed to testify against Castillo in exchange for a reduced charge. They both ended up with 40-year sentences, while Quintero was sentenced to 20 years for robbery.
Some of Garcia’s friends testified about the events surrounding the shooting: both the call from Espinosa beforehand asking to meet up and a frantic call afterward saying Garcia had been shot.
During the punishment phase of the trial, Castillo decided to represent himself, and he never cross-examined anyone who testified against him and extensively outlined evidence of his future dangerousness. Witnesses told the court that Castillo brutally beat the mother of his child, shot a man in a road rage incident, committed a slew of armed street robberies and boasted about home invasions, stabbings, and killings.
In the appeals process, Castillo argued he had had ineffective trial counsel. He also claimed that the death penalty is unconstitutionally cruel and that the evidence had not been strong enough to convict.
He was scheduled for execution in May 2017, but it was stayed after prosecutors failed to file a 90-day notice to the defense. His next execution date, in September 2017, was called off in the aftermath of Hurricane Harvey.
Then his December execution date was cancelled and the case sent back to the trial court after the defense raised claims of false testimony from a jailhouse snitch who later recanted.
The case went back to the trial court, but there a judge signed off on the state's recommended findings three days later, before the defense could submit its findings. 
The court then approved a new execution date, Castillo's fourth in just under a year.
To read more CLICK HERE

Tuesday, May 22, 2018

PLW: Pa. Supreme Court to Decide Fate of Eviscerated Preliminary Hearing


Matthew T. Mangino
The Pennsylvania Law Weekly
May 17, 2018
The criminal preliminary hearing in Pennsylvania, at least for the time being, is of no practical use nor does it provide any meaningful protection to a defendant.
In interpreting Pennsylvania Rule of Criminal Procedure 542 (E) the Pennsylvania Superior Court has authorized magisterial district judges to hold a defendant for court following a preliminary hearing at which the commonwealth presents only hearsay evidence.
Pursuant to Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. Ct. 2015), and Commonwealth v. McClelland, 165 A.3d 19 (Pa. Super. Ct. 2017), a prosecutor can call a police officer as its sole witness at a preliminary hearing, have her read her affidavit of probable cause into the record, and meet its burden of proof.
In Ricker, the Pennsylvania Superior Court held that it does not violate the confrontation clause of Article I, Section 9 of the Pennsylvania Constitution, or the Sixth Amendment to the U.S. Constitution for a defendant to be held for court and ordered to stand trial as a result of a preliminary hearing based on hearsay alone.
In June 2014, David Ricker shot Pennsylvania State Trooper Michael Trotta. Ricker was arrested and charged with attempted murder, assault of a law enforcement officer and aggravated assault.
At the preliminary hearing before a magisterial district judge, the commonwealth presented live testimony from an investigating officer, who testified that he observed Trotta’s gunshot wounds and participated in a search of Ricker’s residence.
The investigating officer spoke to Ricker in the hospital who said that he had an AK-47 rifle when he shot Trotta and commented that he did not understand why Trotta did not leave his property and obtain a search warrant.
At the preliminary hearing the prosecution played a recording of an interview with Trooper Trotta. Ricker’s lawyer demanded to cross-examine Trotta, and argued that Ricker’s case is being improperly evaluated on hearsay testimony alone. The commonwealth argued that they presented more than just hearsay evidence—they also presented Ricker’s statement.
Rule 542 (E), amended in 2013, provides: “Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, nonpermitted use of, damage to, or value of property.”
The Superior Court found that Rule 542 (E), permitting hearsay to be considered in assessing whether the commonwealth has met its burden, authorizes the use of hearsay alone at a preliminary hearing to satisfy the commonwealth’s entire burden of proof.
In McClelland, the Superior Court held that the 14th Amendment due process clause is not violated when a defendant is held for court at a preliminary hearing based on only hearsay testimony.
Donald McClelland was charged by the Pennsylvania State Police with sexually assaulting an 8-year-old girl. The charges included indecent assault, indecent exposure and corruption of a minor. The child was interviewed on videotape by a child advocate in the presence of a state trooper.
At the preliminary hearing, the prosecution did not call the 8-year-old alleged victim to testify or play the videotaped interview. The prosecution called only the trooper. The trooper testified entirely from his observations of the interview. The only evidence presented was hearsay.
McClelland filed a petition for writ of habeas corpus asking the Court of Common Pleas to review the preliminary hearing and dismiss the charges. The attorneys for McClelland argued that holding the charges for court based only on hearsay violated both their client’s right of confrontation and right to due process under both the Pennsylvania and U.S. constitutions.
The trial court denied the petition, and McClelland filed an interlocutory appeal to the Superior Court.
The Superior Court found that there is no constitutional right to a preliminary hearing, and therefore the prosecution cannot violate the defendant’s right to due process by asking a police officer to simply read into the record the statement of a witness.
Prior to Rule 542, Ricker and McClelland, there was Commonwealth Buchanan v. Verbonitz, 581 A.2d 172, 175 (Pa. 1990).
In Buchanan, the only evidence offered by the commonwealth at the preliminary hearing was the testimony of a police officer testifying about a statement made by a witness. The Pennsylvania Supreme Court held that the commonwealth failed to establish a prima facie case. Justice Rolf Larsen wrote in a plurality opinion, “Fundamental due process requires that no adjudication be based solely on hearsay evidence.”
The importance of the preliminary hearing was firmly established by the U.S. Supreme Court through a series of decisions beginning with Coleman v. Alabama, 399 U.S. 1, 9 (1970), which found that the preliminary hearing is a critical stage of a criminal case and requires the assistance of counsel. In Gerstein v. Pugh, 420 U.S. 103, 120 (1975), the high court found that witness testimony and the opportunity for cross-examination are essential to pretrial matters.
In Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. Ct. 2002), the Superior Court ruled that the use of only hearsay testimony fails to meet the threshold for evidence upon which the preliminary hearing judge may rely. In Commonwealth v. Nieves, 876 A.2d 423, 427 (Pa. Super. Ct. 2005), the court found that a prima facia case can be established by hearsay only when the prosecution provides other evidence in addition to hearsay.
The Pennsylvania Supreme Court dismissed Ricker’s appeal on Sept. 28, 2017, as improvidently granted. While doing so, a dissenting statement and concurring statement clearly signaled that this issue is far from resolved.
Chief Justice Thomas G. Saylor, in a concurring statement, acknowledged, “I recognize that the applicable rules are not models of clarity, as, for example, the directive to accept hearsay evidence in Rule 542 (E) appears to clash with the rule-based right to cross-examine witnesses against the defendant conferred under Rule 542 (C).”
Saylor went on, “From my perspective, the 2013 amendment to the rule was not intended to convey that the commonwealth could meet its burden at a preliminary hearing entirely through hearsay evidence.”
“I personally operated on the belief that the court was not rejecting Commonwealth Buchanan v. Verbonitz, but rather, was simply putting the attendant controversy aside for future consideration in the case law,” said Saylor.
Justice David Wecht, in a dissenting statement, spent a great deal of time exploring the difference between “any” as used in Rule 542 and “all” as generally used. In addition he wrote, “when the law affords a hearing to a person involved in our judicial system, particularly a hearing in which that person’s liberty is at stake, the hearing must be more than a mere formality.” He then borrowed from U.S. Supreme Court Justice Benjamin Cardoza in Palko v. Connecticut, 302 U.S. 319, 327 (1937), “the hearing, moreover, must be a real one, not a sham or a pretense.”
Although in McClelland, the Superior Court acknowledged that the due process clause requires adequate notice, the opportunity to be heard, and the chance to defend oneself—it does not require the opportunity to confront witnesses against a defendant. However, Judge Mary Jane Bowes writing for the three-judge panel in McClelland did suggest some limitations on hearsay. She wrote, “This decision does not suggest that the commonwealth may satisfy it burden by presenting the testimony of a mouthpiece parroting multiple levels of rank hearsay.”
The use of rank hearsay is exactly what Ricker and McCelland have permitted. Although the Rules of Evidence have traditionally been relaxed at a preliminary hearing, permitting the prosecution to offer only hearsay evidence at such a hearing is, as Justice Benjamin Cardoza wrote, a “sham,” and a violation of the 14th Amendment due process and the Sixth Amendment right to confrontation.
The Pennsylvania Supreme Court granted allowance to appeal to McClelland in January, refining the issue to “Whether the Superior Court panel failed to properly apply and follow the legal precedent set forth in Commonwealth Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), in which five justices held that ‘fundamental due process requires that no adjudication be based solely on hearsay evidence.’”
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 www.mattmangino.com and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Monday, May 21, 2018

Denver police search entire student body looking for shooting suspect


Denver police officers went classroom by classroom at a largely minority high school and asked teenagers for their IDs as they looked for a suspect in a shooting, reported The Associated Press.
Several students spoke out, saying the April 24 search made them feel targeted, disrespected and unsafe.
“We should not be treated like animals that have just run away from a shelter. We should be treated like humans, like students,” said Mary Jimenez, a 17-year-old junior at Rise Up Community School. “Because we are students of color and students of low income, we get harassed and pushed around and we’re expected not to fight back.
“We need our respect and we need answers,” she said to loud applause.
Denver police have launched an internal investigation, Denver Department of Public Safety executive director Troy Riggs said.
“What happened should not have happened,” Denver Public Schools Superintendent Tom Boasberg said.
The search occurred at the small alternative charter school for students ages 16 through 20 who have dropped out of traditional schools or who are at risk of leaving school. Principal Lucas Ketzer said officers looked for the juvenile suspect over his objections, which he said caused students to feel unsafe and intimidated.
Police pushed a teacher away from her classroom after she said she wouldn’t allow them to enter without a warrant and pulled a gun on a teacher who went out a back door looking for students in an alley where they sometimes hang out, he said.
“I have heard the concerns from the community and independent monitor regarding the incident that occurred at the RiseUp Community School, and an administrative investigation was opened this morning to review the incident,” said Riggs, referring to the civilian oversight agency for Denver’s police and sheriff departments.
The principal questioned whether police would have conducted such a search at a school with more affluent students. He said his students commonly report feeling intimidated by police outside of school and that the search showed teachers working to gain their confidence cannot protect them from that.
To read more CLICK HERE

Sunday, May 20, 2018

Aging prisoners grow as costs soar


The High Costs of Low Risk: The Crisis of America’s Aging Prison Population, the Osborne Association recommends immediate steps to stem the rapid growth of Americans aging – and dying –  behind bars and reduce the roadblocks older people face returning to society.
Even as crime is at national lows and 36 states have reduced imprisonment rates, the number of older adults in prison, many of whom require specialized medical care for age-related illnesses, has only continued to grow. By 2030, people over 50 will make up one-third of the US prison population, putting an unsustainable pressure on the justice system as a whole.
This crisis is exacerbated by the fact that prisons were never designed to be geriatric wards for individuals with a whole host of age-related issues. Incarcerated individuals experience a mental and physical decline at a much faster rate than people outside of prison: for example, research shows 40% of incarcerated older people are diagnosed with cognitive impairment. For some, dementia becomes so pronounced that they cannot even remember why they are incarcerated in the first place.
The unique challenges of incarcerating older people come at a high cost in both taxpayer dollars and human suffering. New York taxpayers spend between $100,000 and $240,000 annually to keep an aging person behind bars even though, after decades of incarceration, older people pose little to no risk to public safety. Only 1% of people 65 and older released from prison in New York are convicted of new crimes within three years, giving them the lowest recidivism rate of any age cohort.
To read more CLICK HERE

Saturday, May 19, 2018

GateHouse: Has the Supreme Court thwarted the dark side of sports betting?

Matthew T. Mangino
GateHouse Media
May 18, 2018
Former U.S. Senator Bill Bradley sponsored the Professional and Amateur Sports Protection Act (PASPA) when it was passed into law in 1992. Bradley knew a little something about sports. He was a basketball star at Princeton University, an Olympic gold medalist and won two NBA championships with the New York Knicks.
This week the U.S. Supreme Court struck down PASPA opening the door, nationwide, to betting on sporting events. PAPSA worked like this — it didn’t regulate gambling because that would have opened sports betting to places other than Las Vegas. The law didn’t outlaw gambling that would have closed down Las Vegas. What Congress did was say that state legislatures that hadn’t already legalized gambling could not enact sports betting legislation in the future.
The Supreme Court ruled that barring state legislatures from legalizing sports betting amounted to an unconstitutional commandeering of the state legislatures. Justice Samuel Alito wrote, “The legalization of sports gambling requires an important policy choice, but the choice is not ours to make.”
In an interview with NorthJersey.com Bradley said, “I regret the ruling. I think the court ignored the impact that the ruling will have on sports in America, and values you learn from sports. I mean, they’ve turned every basketball player, football player and baseball player into a roulette chip.”
With the exception of Las Vegas sports betting has always been conducted in the shadows — and professional athletes have at times crossed to the dark side. From Shoeless Joe Jackson and Pete Rose in baseball, to Heisman Trophy winner Paul Horning and All-Pro Alex Karras in football, professional athletes and college athletes have paid the price for gambling.
Experts suggest that illegal betting in the United States is a $150 billion business. To put that figure in perspective, in 2017 Major League Baseball saw gross revenues surpass the $10 billion mark for the first time.
According to research by UNLV’s Center for Gaming Research, legal sports betting in Nevada totaled nearly $5 billion last year, led by football — both college and professional — which accounted for $1.76 billion.
Will legal gambling lead to corruption? Professional sports are highly regulated and closely scrutinized. Technology is so sophisticated that betting action is monitored in real time to identify potential spikes in irregular betting patterns.
Professional athletes who are making millions of dollars are not likely to jeopardize that wealth for a chunk of money on the side. However, college athletes are more vulnerable. The college athlete will not share in the revenue of increased viewership or possible “integrity fees,” that may be paid to the NCAA by each state authorizing sports betting.
“College sports is the one realm where corrupters can influence athletes, because they’re not paid market rate,” Ryan Rodenberg, a sports law professor at Florida State University, told The Washington Post.
There was the Tulane University and Boston College basketball point shaving sandals of the 1970s and 1980s and University of Toledo football player Quinton Broussard who pleaded guilty to fumbling on purpose in a 2005 bowl game in exchange for $500.
Ironically, the entities who stand to benefit the most from legalized sports betting are the very entities that sued New Jersey to prevent sports wagering which resulted in the Supreme Court decision — the NFL, MLB, NBA and the NHL.
The American Gaming Association conducted research for the NFL in 2016 and found that adults who bet on NFL games watched 19 more games during the 2015 season than adults who did not bet.
With potentially millions of more fans betting on games it is estimated that the number of NFL regular season viewers would jump from 40 million to 57 million. Advertising costs will soar and the NFL will cash in.
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 www.mattmangino.com and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Thursday, May 17, 2018

Tillerson talks integrity at VMI commencement

Former Secretary of State Rex Tillerson made some interesting comments in a commencement speech at Virginia Military Institute, reported the Huffington Post. Tillerson gave his most public remarks since President Donald Trump ousted him from the White House in March.
“As I reflect upon the state of American democracy,” he told the Class of 2018, “I observe a growing crisis in ethics and integrity.”
Tillerson’s emphasis on integrity echoed his parting words to colleagues at the State Department in March. Then he went even further:
“If our leaders seek to conceal the truth, or we as people become accepting of alternative realities that are no longer grounded in facts, then we as American citizens are on a pathway to relinquishing our freedom.”
Is he talking to President Trump and his administration?  You bet.
Tillerson’s time in Trump administration was marked by tension. He reportedly called the president a “moron” eight months before he was fired and replaced by then-CIA Director Mike Pompeo.
To read more CLICK HERE

Wednesday, May 16, 2018

Detecting those who drive while impaired by marijuana

With more and more states legalizing marijuana there is concern over detecting those who drive while impaired by marijuana.  New research by New York University Marron Institute of Urban Management and BOTEC Analysis, LLC "Driving While Stoned: Issues and Policy Options" examines flaws in the current system of detection.
The paper's abstract provides: 
THC is the intoxicant most commonly detected in US drivers, with approximately 13% of drivers testing positive for marijuana use, compared to the 8% that show a measurable amount of alcohol (NHTSA, 2015). (The two figures are not strictly comparable because cannabis remains detectable for much longer than alcohol, and also for long after the driver is no longer impaired; therefore, the difference in rates does not show that stoned driving is more common than drunk driving.) Cannabis intoxication has been shown to impair reaction time and visual-spatial judgment.
Many states, including those where cannabis sales are now permitted by state law, have laws against cannabis-impaired driving based on the drunk-driving model, defining criminally intoxicated driving as driving with more than a threshold amount of intoxicant in one’s bloodstream—a per se standard—as opposed to actual impairment. That approach neglects crucial differences between alcohol and cannabis in their detectability, their pharmacokinetics, and their impact on highway safety.
Cannabis intoxication is more difficult to reliably detect chemically than alcohol intoxication. A breath alcohol test is (1) cheap and reliable; (2) sufficiently simple and non-invasive to administer at the roadside; and (3) a good proxy for alcohol in the brain, which in turn is (4) a good proxy for subjective intoxication and for measurable driving impairment. In addition, (5) the dose-effect curve linking blood alcohol to fatality risk is well-established and steep.
None of those things is true for cannabis. A breath test remains to be developed. Oral-fluid testing can demonstrate recent use but not the level of impairment. A blood test requires a trained phlebotomist and therefore a trip to a medical facility, and blood THC levels drop very sharply over time-periods measured in minutes. Blood THC is not a good proxy either for recency of use or for impairment, and the dose-effect curve for fatality risk remains a matter of sharp controversy. The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone (legal in all states) than to driving with a BAC above 0.08, let alone the rapidly-rising risks at higher BACs. Moreover, the lipid-solubility of THC means that a frequent cannabis user will always have measurable THC in his or her blood, even when that person has not used recently and is neither subjectively intoxicated nor objectively impaired. That suggests criminalizing only combination use, while treating driving under the influence of cannabis (however this is to be proven) as a traffic offense, like speeding.
For access to the research CLICK HERE

Tuesday, May 15, 2018

SCOTUS provides Fourth Amendment protection to rental car users


The Fourth Amendment protects us from (among other things) a warrantless search of a place – such as our homes – that we can reasonably expect to remain private. Today the Supreme Court ruled that a driver who has permission to use a rental car is generally entitled to the same protections under the Fourth Amendment as the driver who rented the car, wrote Amy Howe on SCOTUSBlog.
Here is what I wrote about the case in January for GateHouse Media.
The court’s decision came in the case of Terrence Byrd, a New Jersey man who was driving a car rented by Latasha Reed, his fiancĂ©e (or former girlfriend, depending on whose account you are reading), when he was pulled over by a state trooper in Pennsylvania. The trooper gave him a warning for driving in the left lane and then searched the car, believing that he didn’t need Byrd’s consent because Byrd was not listed as an authorized driver on the rental agreement. The troopers found body armor and 49 bricks of heroin in the trunk, leading to federal charges against Byrd.
After the trial court rejected Byrd’s argument that the heroin and body armor could not be introduced as evidence because the search of the trunk violated his Fourth Amendment rights, Byrd pleaded guilty and was sentenced to 10 years in prison. The U.S. Court of Appeals for the 3rd Circuit upheld his conviction, on the ground that the driver of a rental car who is not listed on the rental agreement does not have a reasonable expectation of privacy in the car and cannot challenge a search, but today the Supreme Court reversed.
In a unanimous decision by Justice Anthony Kennedy, the justices rejected the federal government’s argument that a driver who is not listed on the rental agreement can never have a reasonable expectation of privacy in the car, because the rental company has not given him permission to use it. That rule, the justices concluded, “rests on too restrictive a view of the Fourth Amendment’s protections.” Under the Supreme Court’s cases, the justices explained, whether someone has an expectation of privacy in a car shouldn’t hinge on whether the person who gave them permission to drive it owns the car or rented it.
To read more CLICK HERE

Monday, May 14, 2018

Mangino talks SCOTUS decision on gambling with WFMJ-TV21

Watch my interviews on WFMJ-TV21 6 pm news and my extended interview with Derek Steyer regarding the U.S. Supreme Court decision on gambling and its potential impact on Ohio and Pennsylvania.
To watch my interviews CLICK HERE

Number of incarcerated women increased by more than 700% since 1980


Over the past quarter century, there has been a profound change in the involvement of women within the criminal justice system, according to The Sentencing Project. This is the result of more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women. 
The female prison population stands nearly eight times higher than in 1980. More than 60 percent of women in state prisons have a child under the age of 18.
Between 1980 and 2016, the number of incarcerated women increased by more than 700 percent, rising from a total of 26,378 in 1980 to 213,722 in 2016.
To read more CLICK HERE

Sunday, May 13, 2018

Law enforcement officers killed in line-of-duty down substantially

A total of 93 officers were killed in the line of duty last year, according to a portion of the FBI’s Law Enforcement Officers Killed and Assaulted, 2017 (LEOKA) report.
Of these deaths, 46 were felonious and 47 were accidental. 
Both numbers have decreased from 2016, during which 66 officers were feloniously killed and 52 were accidentally killed, for a total of 118 line-of-duty deaths.
The FBI collects data on officer assaults and deaths from local, state, tribal, campus, and federal law enforcement agencies from around the country, as well as organizations that track officer deaths. The Bureau publishes the data annually through its Uniform Crime Reporting Program, and the national-level statistics can be used to help create data-driven safety training for officers.
To read more CLICK HERE

Saturday, May 12, 2018

GateHouse: Funding woes put indigent defense in peril

Matthew T. Mangino
GateHouse Media
May 11, 2018
More than 50 years ago, Gideon v. Wainwright was argued before the U.S. Supreme Court. The high court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.
Today, the right to counsel is firmly rooted in the American criminal justice system but the lack of funding has put competent representation at risk.
Clarence Earl Gideon was a 51-year-old drifter and petty-thief. He was charged with breaking and entering in Florida. The charge was a felony and when Gideon first appeared before the court he was without funds, without counsel and he asked the court to appoint him a lawyer.
After all, the Sixth Amendment to the U.S. Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
The judge apologized to Gideon and said that Florida law only provides for counsel in capital cases. Gideon replied, “The United States Supreme Court says I am entitled to be represented by counsel.”
Gideon represented himself, was convicted and appealed to the Florida Supreme Court. His appeal was denied and his case made its way to the U.S. Supreme Court. The U.S. Supreme Court appointed a very capable attorney, Abe Fortas, to represent Gideon. Fortas would one day take a seat on the Supreme Court.
Fortas’ argument before the court was deliberate, learned and convincing. Fortas told the court that the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges.
More than a half-century after Gideon the focus has evolved from merely the right to counsel — to the right to effective representation. That representation has turned from insuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.
As states and local municipalities struggle with declining budget revenues, the more important issue today is how will public defenders and court-appointed counsel react to fewer dollars for indigent defense?
The right to effective counsel for indigent defense may be in peril.
When it comes to legal services, you get what you pay for and Pennsylvania, for instance, pays nothing. Pennsylvania stands alone among the 50 states in its steadfast refusal to allocate any money in the state budget for indigent criminal defense.
Instead, it is up to each Pennsylvania county to design, and pay for, a system to provide legal representation to the poor. The Pennsylvania Supreme Court has said that indigent defendants can sue for adequate representation.
Pennsylvania is only the tip of the iceberg.
Recently, public defenders across Massachusetts demonstrated against low pay — average base salary is $47,500 a year — and their lack of collective bargaining power as state employees, according to the Huffington Post.
The American Civil Liberties Union filed a class-action lawsuit against Missouri’s public-defender system.
The lawsuit is on behalf of five Missouri residents accused of a crime and involved in the state’s criminal justice system. The suit alleges that public defenders are failing to provide low income defendants with their constitutionally guaranteed right to legal counsel. According to The Atlantic, the 53-page complaint depicts an overwhelmed system in which too few lawyers are burdened with too many cases and, as a result, too little time to properly defend their clients in court.
The American Civil Liberties Union has also filed a lawsuit against the state of Nevada for allegedly neglecting the constitutional rights of low income defendants in rural counties. The suit alleges that some county judges appoint untrained, inexperienced private attorneys to defend the poor.
In the Pennsylvania case authorizing indigent defendants to sue counties to ensure that public defender’s offices are more adequately funded, state Supreme Court Justice David Wecht warned, ”[T]he level of funding provided by a county to operate a public defender’s office has left that office incapable of complying with Gideon creating the likelihood of a systematic, widespread constructive denial of counsel in contravention of the Sixth Amendment to the United States Constitution.” 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 www.mattmangino.com and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE


Friday, May 11, 2018

Oklahoma expands ‘Stand Your Ground’ law to churches


Oklahoma has added churches to the list of places where a citizen may use deadly force against a violent intruder, reported the National Review.
The state already allows deadly force against anyone who attempts to “unlawfully or forcefully” enter a person’s home, occupied car, or place of business, or anyone who forcibly tries to remove another person not in their custody from those places. And after Governor Mary Fallin signed an expansion of the policy into law on Monday, places of worship are now among the locations where Oklahomans have a “right to expect absolute safety.”
Oklahoma has stepped up its active-shooter training in churches since November, when a gunman opened fire on a Baptist church in Sutherland Springs, Texas, killing 26 and wounding at least 20 more. The gunman, who had a history of domestic violence, claimed as victims many elderly and children, including the preacher’s daughter.
The number of Oklahoma churches putting congregants through active-shooter drills has spiked over 500 percent since that attack, which followed hot on the heels of the Las Vegas massacre of October 1. There, shooter Stephen Paddock used semi-automatic rifles modified to fire at a rate similar to automatics, gunning down 58 people enjoying a country-music concert at a site below his hotel-room window.
Oklahoma’s approach runs counter to the response to the Parkland, Fla. school shooting in February. Students from around the nation called for more gun control and fewer guns on the streets in the aftermath of the Parkland attack, rather than advocating that more guns be put into the hands of those who could respond to an active-shooter situation, as another Oklahoma bill proposes doing.
To read more CLICK HERE

Thursday, May 10, 2018

Federal prison reform bill moves forward


A White House-backed prison reform bill advanced in the House after winning bipartisan support in a 25-5 House Judiciary Committee vote, reported The Hill.
The bill, called the First Step Act, seeks to offer more funding for prison programs and incentivize prisoners to complete the programs in an attempt to reduce the likelihood of inmates committing new crimes once released from prison.
Democrats and liberal groups that had pressed for more significant criminal justice reforms such as reductions to mandatory minimum sentences have been divided over the bill.
Reps. Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) spent much of the past week in negotiations after committee Democrats pushed back against a number of conservative provisions in the legislation.
After the committee vote, Collins said he’s confident there’s enough Democratic support to get the bill through the House and the Senate.
“They have their own process to go through. There may be some issues that we can then work on later, but I do feel this is one of the pieces of legislation that will be signed into law this year,” he said.
In a nod to Democrats, the bill approved in committee no longer includes language that would have allowed certain law enforcement officials and correctional officers to carry a concealed firearm in all 50 states.
And in another effort to win over Democratic supporters, the bill does include language creating more opportunities for prisoners to earn time credits by completing prison programs. They can then use those credits to serve the remaining days of their sentence in a halfway house or home confinement.
The bill, which authorizes $50 million a year for five years for the Bureau of Prisons to spend on programs like job training and education that reduce recidivism, clarifies current law to allow prisoners up to 54 days of credit for good behavior annually. The law was previously interpreted as only allowing prisoners to earn 47 days a year. 
To read more CLICK HERE

Wednesday, May 9, 2018

Life still means life for juveniles in Illinois


Sixteen year old Benard McKinley was arrested and charged in Illinois as an adult with first degree murder for killing a man. In 2004, Cook County jurors found him guilty, reported the Chicago Sun-Times.
Over the past two decades, scientific researchers and courts began grappling with a question that could dramatically shift the course of McKinley’s life: When it comes to crime, are children and adults different?
Courts across the country slowly began to address the issue, bolstered by research showing that the human brain, particularly parts responsible for controlling impulses and assessing consequences, is not fully developed until one’s early 20s. And so courts ushered in a new era of decision-making, ruling again and again that children accused and convicted of crimes must be treated differently than adults.
The decisions culminated in Miller v. Alabama, a 2012 U.S. Supreme Court ruling that laws declaring mandatory life-without-parole sentences for juveniles, even for those convicted of murder, are unconstitutional under the Eighth Amendment. In the opinion, authored by Justice Elena Kagan, the court found that the mandatory sentences precluded judges from considering the defendant’s “chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” The Court reasoned that the youngest offenders have “diminished culpability and greater prospects for reform,” and to require those mandatory sentences without considering features of youth constitutes cruel and unusual punishment.
That ruling applies to anyone under the age of 18, and was made retroactive in 2016 after another Supreme Court ruling, Montgomery v. Alabama. “What is with this magical moment?,” asked former Cook County Circuit Court Judge Daniel M. Locallo, now a defense attorney. “You’re 17 and 364 days, the day before your 18 birthday, allegedly your brain isn’t developed enough.” But one day later, he mused, “it is?”
With the new standard set, a wave of prisoners across the country with mandatory life sentences, including some 80 inmates in Illinois, have or are in the process of receiving sentences that take their youth into consideration.
But McKinley is not among them.
Though Wadas imposed a 100-year sentence, to be served in its entirety, the judge was not mandated to sentence McKinley to spend his life in prison; in fact, he was only required under Illinois law to issue a minimum punishment of 45 years in prison.
After his conviction was upheld in the Illinois appellate courts, McKinley turned to the federal courts contending that his sentence was not constitutional.
In March 2014, U.S. District Judge John J. Tharp Jr. refused to strike down the sentence, reasoning that a judge’s imposition of consecutive 50-year sentences, while possibly amounting to a life sentence, was not based on a mandatory sentencing scheme that the Supreme Court prohibited in Miller:
“Whether McKinley’s sentence should have been lower due to his age is not for this Court to say; the Illinois courts held that the sentence was not excessive, and that conclusion is not in conflict with the federal Constitution,” Tharp wrote.
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Tuesday, May 8, 2018

Max Boot: From America's Mayor to Trump Chump the legacy of Rudy Giuliani

Max Boot writes for the Washington Post, "To be a prelapsarian conservative in America today — as that creed was understood before 2016 — means getting used to heartbreak. One after another, conservatives that I have admired and respected — Paul Ryan, Marco Rubio, Tom Cotton, Bill Bennett, Chris Christie, Newt Gingrich, Scott Walker and many others — have failed the Trump test. They have sacrificed their purported principles to curry favor with a populist demagogue who is turning the Republican Party into the American version of France’s National Front.
The most conspicuous Republican to fall from grace — and he had a long way to fall because he once reached such a lofty pinnacle — is Rudy Giuliani. He has gone, in Joe Scarborough’s biting but accurate phrase, from “America’s mayor” to Trump’s chump. But not even the gaudy, post-9/11 phrase “America’s mayor” can convey the true depth of Giuliani’s achievement, especially to a non-New Yorker."
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Monday, May 7, 2018

Georgia executes man who was 18 years old when he committed murder


The 10th Execution of 2018
Robert Earl Butts Jr. was put to death by lethal injection on May 4, 2018 at the Georgia Diagnostic and Classification Prison. He was pronounced dead at 9:58 p.m., reported the Atlanta Journal Constitution. 
When asked for a final statement, Butts replied, “I’ve been drinking caffeine all day.” Then he declined an offer for a prayer. 
He never looked at the father and brother of his victim, sitting on just the other side of the window that separates the witness area from the execution chamber. Nor did he look at Baldwin County Sheriff Bill Massee or Putnam County Sheriff Howard Sills, who was chief deputy in Baldwin County at the time of the murder. 
Two minutes after the pentobarbital began to flow into the vein in his arm, Butts mumbled, “It burns, man.” After that, he yawned and took a series of deep breaths until there was no movement about a minute before he was pronounced dead.
Butts, 40, was sentenced to death for the March 1996 murder of 25-year-old Donovan Corey Parks in Milledgeville. Butts and his co-defendant, Marion Wilson Jr., asked Parks — an off-duty correctional officer — for a ride from a local Walmart store, then minutes later ordered him from the car and shot him in the head. Butts was 18 at the time. 
The U.S. Supreme Court rejected Butts’ request for a stay of execution about 45 minutes prior to him getting the needle.
That followed the Georgia Supreme Court’s unanimous decision Friday afternoon to deny a stay of execution. 
Although the lethal injection was scheduled for 7 p.m., Georgia does not proceed until all courts have weighed in on last-minute appeals for mercy.
In addition to denying Butts’ motion for a stay of execution, the Georgia Supreme Court denied his request to appeal rulings by the Butts County Superior Court and the Baldwin County Superior Court, which both issued an order denying a stay and rejecting Butts’ challenge to his death sentence.
Butts spent his final hours with two relatives as the courts weighed his lawyers’ last-minute appeals, and he ate his last meal — a hamburger with bacon and two kinds of cheese, a rib-eye steak, chicken tenders, seasoned french fries, cheesecake and strawberry lemonade.
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Saturday, May 5, 2018

GateHouse: 50 years after RFK’s assassination, his killer remains in prison


Matthew T. Mangino
GateHouse Media
May 4, 2018
Next month will mark the 50th anniversary of the assassination of Robert F. Kennedy. He was mortally wounded just after midnight on June 5, 1968, in the kitchen of the Ambassador Hotel in Los Angeles.
Moments before entering the kitchen, Kennedy had given a victory speech after winning the California Democratic primary for President of the United States.
Kennedy was being ushered through the hotel kitchen by a group of campaign volunteers. Suddenly, he was shot by Sirhan Sirhan, a young man angered over Kennedy’s pro-Israeli position.
Less than five years earlier, Kennedy’s brother, President John F. Kennedy, was struck down by an assassin’s bullet and only two months earlier civil rights leader Martin Luther King Jr. was slain in Memphis, Tennessee, by an assassin.
Sirhan was convicted 10 months later — within a week of his conviction, he was sentenced to death. The sentence was commuted to life in prison in 1972 after the California Supreme Court vacated all pending death sentences.
Sirhan remains in a California prison and has been denied parole 15 times, most recently in 2016. Parole commissioners concluded, after more than three hours of testimony, that Sirhan did not show adequate remorse or understand the enormity of his crime.
Why the lack of remorse? A half century after the assassination, Sirhan and his lawyers are still dreaming up ways to get him out of prison.
In 2011, his lawyers came up with a new plan for his release that read like the plot of a Hollywood movie.
Although Sirhan’s conviction occurred more than four decades prior, he asked the court to review his conviction through a Writ of Habeas Corpus. His direct appeal rights have long been exhausted but habeas corpus provided the opportunity to challenge a conviction as the result of newly discovered evidence.
Sirhan’s lawyers hired memory expert Daniel Brown, a professor of psychology at Harvard Medical School. Brown suggested hypno-programming caused Sirhan to repeatedly write that “RFK must die” in his notebooks and triggered the assassination.
Brown interviewed Sirhan for 60 hours over a three-year period. Sirhan believed that when he fired his shots in the hotel kitchen he was at a gun range, shooting at circular targets, reported CNN.
Sirhan’s lawyers believed he was programmed to cause a distraction in the kitchen, allowing a second gunman to secretly shoot Kennedy from behind. Lawyers argued that Professor Brown believed a mysterious young woman in a polka-dot dress lured Sirhan into the kitchen as part of a mind-control plot.
Sirhan’s claims of hypno-programming and assassination might make for an action-packed Hollywood thriller — if it hadn’t already been written, produced and premiered more than six years before Kennedy’s murder. “The Manchurian Candidate” released by MGM in 1962, starred Frank Sinatra and portrayed a supposed war hero who was brainwashed into becoming an unwitting assassin.
In January 2015, the Central District Court of California denied Sirhan’s claims, refusing to even grant him an evidentiary hearing to assess the merits of this new testimony.
Robert F. Kennedy was laid to rest on June 8, 1968. Senator Ted Kennedy eulogized Robert Kennedy in one of America’s most memorable tributes. “My brother need not be idealized, or enlarged in death beyond what he was in life; but to be remembered simply as a good and decent man, who saw wrong and tried to right it, saw suffering and tried to heal it, saw war and tried to stop it. For those of us who loved him and who take him to his rest today, pray that what he was to us and what he wished for others will someday come to pass for all the world.”
That prayer continues today.
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 www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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Friday, May 4, 2018

Out of prison--Meek Mill is pushing criminal justice reform in Pennsylvania


Newly freed rapper Meek Mill is putting his celebrity status behind criminal justice reforms in Pennsylvania, reported WHYY. He joined Gov. Tom Wolf and other top state officials Thursday at the National Constitution Center to push for changes in everything from probation and parole policies to a cash bail system that Wolf said is equivalent to “debtor’s prison.”
Wolf said he hopes the national attention Mill’s case has attracted will translate into real policy change. The governor called on the state House to pass a trio of bills recently approved the state Senate that would release nonviolent offenders more quickly and help move more prisoners into substance abuse programs, while also pumping more dollars into probation and parole programs across the state.
The raft of legislation, Wolf said, is not just about offender rehabilitation, but also victim protection.
“But we can do that while also ending the cycle of incarceration that has left so many people, so many families feeling trapped, helpless, without an opportunity to return to society after they’ve been released,” he said, adding that the state needs to “stop using jails as mental health facilities.”
Mill, who was raised in North Philadelphia’s Strawberry Mansion neighborhood, described the community where he grew up as “ruthless” and “drug-plagued.”
Still on probation after a 2007 arrest on drug and gun charges that will likely be dismissed, Mill said said his probation officer helped steer him into a treatment program after he told her he was addicted to opioids.
“It changed my life,” he said Thursday.
It is the type of problem, Mill said, that those on court supervision should not be afraid to admit to officers tasked with keeping probationers on the straight and narrow.
“I don’t think any human being should be locked, shackled from top to bottom, ankle to hand, because they use marijuana or was addicted to opioids,” he said.
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Thursday, May 3, 2018

Giuliani opens a can of worms for President Trump, Michael Cohen and...oh yes, Robert Mueller


It didn’t take former New York mayor Rudy Giuliani long to make his mark after joining President Trump’s legal team. Unfortunately, the mark Giuliani left was on his client, reported the Washington Post.
During an interview with Fox News’ Sean Hannity on Wednesday, Giuliani volunteered a startling bit of information. That $130,000 that Trump’s attorney Michael Cohen admitted having paid to porn star Stormy Daniels? Trump had repaid it.
“That money was not campaign money, sorry. I’m giving you a fact now that you don’t know,” Giuliani said to Hannity, raising the subject on his own. “It’s not campaign money. No campaign finance violation.”
Giuliani’s central thesis — that the repayment meant that no campaign finance laws were broken —is wrong. If Cohen loaned Trump $130,000 by making the payment to Stormy Daniels so that her story wouldn’t come out before the election, that loan would have had to have been reported.
And it would have been reported before Election Day.
To read more CLICK HERE


Wednesday, May 2, 2018

$60 million spent to cover Border Patrol wrongful conduct


The U.S. government has paid out more than $60 million in legal settlements where border agents were involved in deaths, driving injuries, alleged assaults and wrongful detention, an analysis of more than a decade of official data reveals, posted The Crime Report.
The Guardian reported that President Trump has been pushing to expand the patrol force at the southern border, insisting recently on Twitter, “Border Patrol Agents are not allowed to properly do their job at the Border because of ridiculous liberal (Democrat) laws.” While Trump has ordered National Guard troops to be deployed to provide agents with extra support, the review of settlement data and details found in related court records raises concerns about the agency’s history of interactions with civilians, both native-born and immigrant.
The federal government has settled at least 20 wrongful death claims, paying more than $9 million to the families of people killed since 2003, in incidents including shooting, beating, use of Tasers and collisions with vehicles. Nearly $47 million has been paid out for damages resulting from alleged reckless driving by border agents. Of more than 1,300 such payments, a review of 40 cases with available court records found six crashes which were deadly and 18 that cited grave injuries including amputations and disability. Four people, including two U.S. citizens and a legal permanent resident, received settlements for being wrongly deported. Nine people, including three citizens, two immigrants with legal status and two tourists, received settlements for illegal detentions of between four days and two months. More than $650,000 was paid out in settlements in four cases where four people were shot by border agents and survived.
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Tuesday, May 1, 2018

SCOTUS to hear case of Missouri man too sick to be executed


The Supreme Court agreed Monday to take up the death penalty case of Russell Bucklew, a Missouri inmate who claims his execution would likely cause him "needless suffering" because he suffers from a rare disease, reported CNN.
Last March, a divided court granted a request to stay his execution. Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissented from the order.
In court papers, lawyers for Bucklew says his disease, called cavernous hemangioma, is progressive and has caused "unstable, blood-filled tumors to grow in his head, neck and throat" and they argue that an expert concluded that if he were to undergo lethal injection he is "highly likely to experience ... the excruciating pain of prolonged suffocation resulting from the complete obstruction of his airway."
Lawyers for the state dispute the findings of the medical expert and emphasize that Bucklew engaged in lengthy delays in fighting his death sentence.
Bucklew was convicted of first-degree murder, kidnapping, burglary and forcible rape in 1998.
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