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

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

Last week, Gov. Wolf asked Pa.'s Judicial Conduct Board to review decisions by the Bucks County judge who let the father of Kayden Mancuso have unsupervised visits with the 7-year-old girl in the weeks before he fatally beat her and killed himself. Additionally, Mancuso's relative is calling for the judge's removal, an outcry supported by 37,000 petition signers.

Two words shout out against such responses: judicial independence.

We live in a country where the judiciary is under attack, with cries from the President that "our legal system is broken" and judicial decisions put our country "in peril."  But Americans want and need judges to make tough decisions without looking over their shoulders.  And we want lawyers to be able to go into court on new cases without fearing that the judge will make a harsh decision to look tough and appease critics.

Judicial misconduct warrants sanctions.  That includes lying, stealing, doing favors; not showing up for work; or being racist, sexist or otherwise hostile to discrete populations.  Such actions warrant punishment and some may require removal.  But an unwise decision – if this indeed was one – is not misconduct.

Can we know that the judge's decision was wrong, except using hindsight?

In the case of Kayden Mancuso's tragic death, evidence was offered that her father had committed abusive acts toward adults in his past, and suffered from depression.  Data do support the assertion that these behaviors indicate that children in the home may be at risk, but that is just one of 16 factors the law requires a judge to weigh.  Is a judge wrong if the risk is 1 percent versus 15 percent, or if the father has been with this child without violence, or if the spousal abuse occurred years earlier?  Unless the science is clear, the numbers are compelling, and the law makes this the main factor, the judge's decision is not misconduct.

What is needed here?  From the worlds of airplane accidents and medical errors, the judiciary needs what are termed "just culture" reviews and "root-cause analysis."  In plain English, that means studying whether and why the judge's decision was clearly wrong and unjustified, all without punishment; assessing what information should have been considered and how it should have been weighed; and learning how to ensure that the risk of such harm is reduced if not eliminated in future cases.

That may mean more judicial education, both generally and using cases like this as studies; more resources to educate and periodically update judges on reliable social science; and/or a recalibration of the law that weighs more heavily the history of intimate partner violence when determining custody and visitation.

We must protect our children, but not in a way that fails to protect the institution of an independent judiciary.

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Not all states have followed through on #MeToo promises

A nationwide survey by the Associated Press has found not all states have followed through on attempts to develop new harassment and misconduct policies in the wake of the #MeToo movement

The study wrapped up this month and looks back to last October, when #MeToo started picking up steam, reported WHYY in Philadelphia.

In January, the AP found around three-quarters of state legislatures had passed or were considering new harassment and misconduct measures.

But this summer, researchers found only half ultimately took action.

In Pennsylvania, the House passed a resolution to create a task force investigating harassment and discrimination laws for state workers.

A separate resolution to study workplace harassment laws more broadly also passed the House but stalled in the Senate.

More than a dozen other bills have been introduced, but none have made it past the committee stage. Many of their backers have criticized leaders for focusing too much on study, instead of action.

Internally, the commonwealth’s four caucuses have separate harassment rules.

House and Senate Democrats updated their protocols, and Senate Democrats began bringing in outside investigators—a measure other caucuses already take.

The AP also listed lawmakers who have been caught in harassment allegations.

Pennsylvania had three, including Delaware County GOP Rep. Nick Miccarelli, who’s accused of assaulting and threatening to kill fellow lawmaker Tarah Toohil and another woman he dated.

All three lawmakers named are still in office.

To read more CLICK HERE

The deadly consequences of jailing the mentally ill

The Virginian-Pilot and students from Marquette University in Milwaukee tracked 404 deaths since 2010 in what experts say is the most comprehensive effort to examine what happens to people with mental illness in jails throughout the country. The findings were compiled using state data, news reports, existing databases and court filings.

The total number of deaths for the period is likely significantly higher than what could be documented through available records.

The same grim patterns emerge again and again:

At least 41 percent of those who died were in isolation or recently had been. Solitary confinement has long been known to exacerbate the symptoms of mental illnesses.

44 percent of the deaths were by suicide, which can often be prevented with close monitoring.

In 70 cases, inmates were shocked with a Taser or stun gun, pepper-sprayed or restrained – often in some combination – before dying.

In at least 11 percent of the cases, family or friends warned the jail that their loved one had a mental illness. In at least six of those, they tried to bring the correct medications to the jail.

Without medications and proper treatment, someone with a disease like schizophrenia can rapidly decline. It’s not uncommon for such inmates to wind up in isolation, naked and smearing feces around their cell.

For years, sheriffs, mental health advocates, families and prosecutors have sounded the alarm about the number of people with illnesses such as bipolar disorder, schizophrenia and severe depression who are sent to jail, often for minor crimes. Unlike prisons, which house those convicted of and sentenced for a crime, jails must take in anyone arrested – including those in the throes of a mental-health crisis.

“We are arresting people who have no idea what the laws are or the rules are because they're off their medications,” said Nashville Sheriff Daron Hall, a vice president of the National Sheriffs’ Association. “You'd never arrest someone for a heart attack, but you're comfortable arresting someone who is diagnosed mentally ill. No other country in the world is doing it this way.”

In addition to causing pain and suffering for people with mental illness, the practice is costing municipalities millions.

At least 53 percent of the deaths examined have resulted in a lawsuit. Combined, the cases have cost municipalities at least $145 million. The true cost is much higher – in many cases, lawsuits are still pending and in others the settlement amount is secret. The figures also do not take into account lawyers’ fees.

To read more CLICK HERE

Report: Violent crime wave of '80s and '90s spured by cheap guns

The violent crime wave of the late 1980s and early 1990s is a subject of perennial debate among policymakers and social scientists: what caused the spike in America’s murder rate, which by 1993 soared to the highest level ever recorded? And just as important, why did it subside?

One popular theory attributes both the surge and ebb of homicides to crack cocaine. The logic is persuasive. In poor urban areas hollowed out by deindustrialization and cut off from economic opportunity by racial discrimination, the drug provided one of few lucrative incomes for young black men. Dealers resorted to bloodshed to defend their businesses, while users turned to crime to feed their addictions. Then came the “war on crime” and go-go economy of the Clinton years, which dried up the crack trade and reduced murders along with it.

According to The Trace, two new academic papers posit that drug market dynamics alone don’t fully explain why the explosion of crack use was so deadly, nor why murders fell in the mid-90s. Instead, they argue, a boom in handgun production and possession gave the crack years their fatal character — until new restrictions on firearms reversed the trendlines.  

“What’s striking about the gun market is you get these surges in production,” said Geoffrey Williams, an economist at Transylvania University in Kentucky who has been researching the phenomena for the past three years. “The production booms were followed by surges in killings.”

In a working paper updated in August, Geoffrey Williams and his colleague W. Alan Bartley argued that it was a “supply shock” of low-priced pistols which in the 1980s and early ‘90s led to higher levels of gun homicide among young black men. During those years, ATF oversight of the gun industry slacked off and a group of Los Angeles-based manufacturers known as the “Ring of Fire” expanded the market for “Saturday Night Specials”: bottom-of-the-barrel firearms that turned up at crime scenes as surely as weekends beget drunken disputes.

Culling advertisements in back issues of the magazine Gun Digest, Williams and Bartley compiled handgun price and production data for the period. They calculate that the production of cheap guns priced at $100 or less peaked in 1993, the same year murders, both those committed with guns or other means, reached their highest point. That year, Washington, D.C., had a murder rate of 75 per 100,000 residents. The industrial hub of Gary, Indiana, led the country at a rate of 110 per 100,000 residents. Today, very few cities even approach those levels of violent death.

The huge pool of cheap guns contracted sharply as the 1990s wore on. Manufacturers of cut-rate handguns were driven out of business by product liability lawsuits (their guns tended to injure users, too). The federal government doubled ATF law enforcement funding, from just over $2 billion in 1990 to more than $4 billion by 1994. The then-nascent Brady background check system, which allowed gun dealers to instantly check whether a purchaser was prohibited from owning a gun, reduced the ability of gun purchasers with felony histories or other disqualifying behavior to buy firearms.

Could a new influx of guns also explain the latest spike?  

Some experts think so. According to the ATF, domestic gun production reached an all-time peak of 11 million weapons in 2016, fueled by the easing of local carry laws and inflated fears of new federal gun control. The single largest share of those weapons were semiautomatic handguns. The pistols flooding the market today are typically of higher quality, fire more powerful rounds, and have ammunition magazines with greater capacity than those made by the Ring of Fire companies.   

At the same time, the recent homicide increase has been most acute in some of the same cities that had been ravaged by the introduction of crack three decades earlier, including Chicago, Baltimore and St. Louis.

“There’s nothing controversial about saying that means influence injuries,” said Dr. Sandro Galea of the Boston University School of Public Health. “Take the likelihood of people committing suicide by jumping off bridges. Studies show that when you make it harder to jump off a bridge, fewer people commit suicide that way. The supply of guns is an integral part of that same story: the widespread availability of a means of injury results in a greater amount of that kind of injury.”

As Galea sees it, the big difference between the rise in gun crime during the 1980s and ‘90s and the spikes in gun production and homicide we’ve just seen is that the earlier wave was followed by a dramatic federal policy response.

There is no such equivalent effort today.

To read more CLICK HERE

Mangino on WFMJ-TV21 Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today on the troubles for President Trump and the Lordstown, Ohio TJX Project.
To watch the interview CLICK HERE

Mangino interviewed in studio on WFMJ-TV21 News

Watch my interview on WFMJ-TV21 News regarding the law suit challenging the TJX project in Lordstown, Ohio.
To watch the interview CLICK HERE

GateHouse: No one is above the law

Matthew T. Mangino

GateHouse Media

August 24, 2018

The President of the United States can and should be indicted. This week, President Donald Trump’s former lawyer and trusted advisor pleaded guilty to tax fraud, false statements to a bank and campaign finance violations, and implicated the president in criminal activity.

Michael Cohen said under oath in open court that he acted “in coordination with, and at the direction of, a candidate for federal office” and “for the principal purpose of influencing the election.”

Prosecutors allege that” hush-money” payments Cohen arranged for Karen McDougal and Stormy Daniels broke the legal limit on individual donations to a political campaign and violated the law banning corporations from giving directly to a candidate.

According to Politico, candidates are permitted to make unlimited contributions to their own campaign, but that money must go through their campaign committee. Cohen facilitated the payments through an outside company, not the campaign — an unlawful act.

During the Watergate investigation, a memorandum prepared for Special Prosecutor Leon Jaworski concluded that there was no legal bar to indicting President Richard Nixon. The memorandum concluded, “As we understand it, the conclusions regarding indictment of an incumbent president reached by the Department of Justice, the U.S. Attorney’s office, and this office, are all consistent: There is nothing in the language or legislative history of the Constitution that bars indictment of a sitting president.”

Some Constitutional experts have argued that the president should have immunity. If the president were indicted he would be burdened by pretrial matters, the preparation for trial and the commitment of weeks or months in a courtroom.

Constitutional scholar Jonathan Turley suggested in a recent Washington Post piece immunity for the president “ignores a couple practical considerations. First, it is highly unlikely that a president would be tried, let alone convicted, while in office ... Even when sentenced, appeals can take years.”

In May 1998, a distinguished constitutional scholar Ronald W. Rotunda reached the conclusion that a sitting president can be sued or indicted. According to The Atlantic, Rotunda confidentially advised then-independent counsel Kenneth Starr that President Bill Clinton could be indicted. “The U.S. Supreme Court has repeatedly reaffirmed the state(ment) that no one is ‘above the law,’” Rotunda wrote.

Starr’s team concluded that ”(I)t is proper, constitutional and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties.”

Walter Dellinger, a former assistant attorney general and the head of the Office of Legal Counsel at the Department of Justice, writing for the New York Times, cited Clinton v. Jones. President Clinton had long fought to stop a civil suit brought against him by Paula Jones. The case ultimately reached the U.S. Supreme Court. The entire court agreed that the fact that a federal court’s exercising of its constitutional power to hear a case “may significantly burden the time and attention of the chief executive is not sufficient to establish a violation of the Constitution.”

Dellinger concluded that “the mere indictment of a president would not meet the stringent standard in Clinton v. Jones for presidential immunity from ordinary legal processes.”

The argument that an indictment would be too demanding on a sitting president is further blunted by the 25th Amendment that allows a president to voluntarily transfer powers of his office to the vice-president for a limited period of time.

When asked if a sitting president can be indicted Deputy Attorney General Rod Rosenstein said. ”(T)he Department of Justice has in the past, when the issue arose, opined that a sitting president cannot be indicted.”

The opinion of the Department of Justice is not precedent. The position of the DOJ can change and Rosenstein himself could change the scope of the Mueller investigation. Trump can be indicted. The question is will some prosecutor take the unprecedented action of indicting a sitting president to affirm the notion that no one is above the law?

— 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

Oklahoma judge resigns after holding more than 200 people in contempt since 2016

An Oklahoma judge has agreed to resign after he was accused of using his contempt powers to jail people for infractions such as leaving sunflower seeds in his courtroom and talking in court, reported the ABA Journal. Judge Curtis DeLapp resigned Monday and agreed to never again seek judicial office, report the Washington Post, the Frontier (in stories here and here), NewsOK and the Bartlesville Examiner-Enterprise.

DeLapp, who will be allowed to keep his retirement benefits, said he was prioritizing his family. “It is with a heavy heart but clear conscience that I announce my resignation,” DeLapp said in a statement. He had presided over cases in Washington and Nowata counties as a district judge. petition for removal alleged that DeLapp has ordered people jailed in more than 200 direct contempt citations since 2016.

The petition, filed by Oklahoma Chief Justice Douglas Combs, alleged gross neglect of duty and oppression in office.The petition also alleged that DeLapp altered documents to justify the six-month jail term he gave to a woman for talking in his courtroom.

 On March 5, the Oklahoma Supreme Court ordered the immediate release of the woman, Randa Ludlow, and voided DeLapp’s contempt order.

In another case, DeLapp was accused of jailing a woman for four days after she apparently left sunflower seeds on the courtroom floor and bench. He then allegedly required her to return to court 20 more times over the next 2½ years.

To read more CLICK HERE

The dark side of armed school resource officers

Over the past decade, at least 46 school resource officers across the country have been convicted of or fired for having sex or exchanging sexually explicit messages with students who attended high schools or middle schools they were assigned to protect, according to a BuzzFeed News review of news stories, court documents, and police records. There are no statistics on how many SROs are men and how many are women, but all of those arrested for having sex with students have been men. Scores more have been accused of excessive force or unnecessary arrests.

These incidents represent a dark side to a sector of policing that continues to grow in response to fears over school shootings. In the two decades since the 1999 massacre at Columbine High School in Colorado, school resource officers have emerged as a primary balm to soothe America’s sense of helplessness in the face of a seemingly endless string of violent childhood deaths. While Congress has failed to pass gun control bills in the aftermath of these high-profile tragedies, it has been quick to fund efforts to place more officers on primary, middle, and high school campuses, even though there is no conclusive evidence showing that these armed men and women bring more good than harm to the students under their watch.

In 1996, according to Department of Education data, around 10% of schools had a police presence on site for at least one hour a week; by 2016, 58% of schools had a sworn law enforcement officer stationed on campus at least part-time. While there have been few official counts of school resource officers over the years, the sector’s largest training organization, the National Association of School Resource Officers, estimates that as many as 20,000 cops are on the school beat today, more than double the number tallied by the Department of Justice in 1997. This year, after shootings at high schools in Parkland, Florida, and Santa Fe, Texas, left a combined 27 people dead, tens of millions of dollars in federal grants covered a renewed push to put officers in as many schools as possible. In the new school year, there will likely be more sworn law enforcement personnel stationed in primary, middle, and high schools than at any point in the country’s history.

To read more CLICK HERE

COHEN PLEADS GUILTY IMPLICATES PRESIDENT TRUMP

Donald Trump’s former lawyer Michael Cohen pleaded guilty to illegally interfering in the 2016 election — and implicated the president. Cohen said he worked “at the direction of a candidate for federal office” for the purpose of influencing the election, pleading guilty to five counts of tax evasion, two counts related to an illegal campaign contribution and one count of making a false statement, reported The Huffington Post.

Manafort Guilty

A federal jury in Virginia convicted Paul Manafort, President Donald Trump's former campaign chairman, on eight felony counts on Tuesday, but the judge declared a mistrial on the 10 other charges he faced, reported NBC News.

Manafort was convicted of five counts of tax fraud, one count of failing to file reports of foreign bank and financial accounts and two counts of bank fraud. A mistrial was declared in three counts of failing to file reports of foreign bank and financial accounts, and seven counts of bank fraud and bank fraud conspiracy.

Manafort faces an estimated seven to nine years in prison.

Prosecutors have until August 29 to decide what they will do about the 10 mistrial charges.

The jury deliberated for four days after hearing 12 days of arguments, evidence and witnesses.

Georgia police tase 87-year-old woman cutting dandelions

When Martha Al-Bishara, 87, went on a walk near her home in Chatsworth, Ga., on Aug. 10,  she was on a quest for dandelions. The stroll would end in her getting stunned by a Taser and arrested by police officers, reports the Washington Post. 

According to The Crime Report, Al-Bishara often ventured outside with a kitchen knife and a plastic bag in hand to cut and collect the plants for cooking. A man called 911, and police found her on a hill holding a “a white plastic bag in her left hand and a steak knife in her right hand.”

It was unclear if the officers realized Al-Bishara did not speak English but when she did not respond to multiple verbal requests to put down her knife, one officer shot his Taser, striking Al-Bishara in the chest and sending her to the ground. She was charged with obstruction of an officer and criminal trespassing. Chatsworth Police Chief Josh Etheridge, who was at the scene, defended his officers’ use of force. “In my opinion, it was the lowest use of force we could have used to simply stop that threat at the time,” Etheridge told the Daily Citizen-News. “And I know everyone is going to say, ‘An 87-year-old woman? How big a threat can she be?’ She still had a knife. … An 87-year-old woman with a knife still has the ability to hurt an officer.”

To visit The Crime Report CLICK HERE

Watergate revisited: Trump's White House counsel cooperates with Mueller investigation

New York Times reporters Maggie Haberman and Michael S. Schmidt broke a blockbuster story explaining that the White House counsel, Donald F. McGahn II, “cooperated extensively” with Robert Mueller’s investigation.

According to the Times, McGahn spoke to the special counsel’s office for as much as 30 hours, on at least three separate occasions. Although what he said remains unknown, Haberman and Schmidt report that his testimony was sparked, at least in part, by the fear that “Mr. Trump was setting up Mr. McGahn to take the blame for any possible illegal acts of obstruction” after Trump’s (now former) lawyers, John Dowd and Ty Cobb, encouraged McGahn to talk to Mueller as part of their “open-book strategy.” 

Reminiscent of the Watergate scandal McGahn was out to protect himself more than sink Trump. According to Slate the story suggests,  “Worried that Mr. Trump would ultimately blame him in the inquiry, Mr. McGahn told people he was determined to avoid the fate of the White House counsel for President Richard M. Nixon, John W. Dean, who pleaded guilty to conspiracy to obstruct justice in the Watergate scandal.” 

Near the end of the piece, Haberman and Schmidt note—wryly—that “as the months passed on, it became apparent that Mr. McGahn and [his lawyer] had overestimated the amount of thought that they believed the president put into his legal strategy.”

To read interview with John Dean CLICK HERE

Predicting crime by examining the brain

A group of neuroscientists at the University of New Mexico propose to use brain imaging technology to improve risk assessments, reported The Marshall Project. Kent Kiehl, a professor of psychology, neuroscience and the law at the University of New Mexico, said that by measuring brain structure and activity they might better predict the probability an individual will offend again.

Neuroprediction, as it has been dubbed, evokes uneasy memories of a time when phrenologists used body proportions to make pronouncements about a person’s intelligence, virtue, and — in its most extreme iteration — racial inferiority.

Yet predicting likely human behavior based on algorithms is a fact of modern life, and not just in the criminal justice system. After all, what is Facebook if not an algorithm for calculating what we will like, what we will do, and who we are?

In a recent study, Kiehl and his team set out to discover whether brain age — an index of the volume and density of gray matter in the brain — could help predict rearrest.

Age is a key factor of standard risk assessments. On average, defendants between 18 to 25 years olds are considered more likely to engage in risky behavior than their older counterparts. Even so, chronological age, wrote the researchers, may not be an accurate measure of risk.

The advantage of brain age over chronological age is its specificity. It accounts for “individual differences” in brain structure and activity over time, which have an impact on decision-making and risk-taking.

After analyzing the brain scans of 1,332 New Mexico and Wisconsin men and boys — ages 12 to 65 — in state prisons and juvenile facilities, the team found that by combining brain age and activity with psychological measures, such as impulse control and substance dependence, they could accurately predict rearrest in most cases.

To read more CLICK HERE

GateHouse: DOJ fights full disclosure

Matthew T. Mangino

GateHouse Media

August 17, 2018

The U.S. Department of Justice is taking on the Tennessee Supreme Court’s Office of Professional Responsibility over a 55-year-old U.S. Supreme Court decision.

The controversy is not about just any decision, it’s about the landmark decision of Brady v. Maryland. The U.S. Supreme Court held in Brady that a prosecutor who withholds material evidence—evidence capable of changing the outcome of the case—violates the U.S. Constitution.

The Tennessee Board published an ethics opinion earlier this year announcing that prosecutors have a higher ethical obligation to divulge certain kinds of evidence than what’s legally required of them under the Brady ruling and the Constitution.

Although the U.S. Supreme set the framework for disclosing favorable evidence the Court did not provide guidance to the states and federal government relating to evaluating what evidence needs to be disclosed and the timelines for disclosing the evidence. The rule in Tennessee seeks to provide guidance.

The proposed rule in Tennessee provides that prosecutors must hand over all evidence that is in some way favorable to a defendant, regardless if they believe it would affect the outcome of the case. Prosecutors are required to turn those records over early enough for the information to be used effectively by the defense, including guilty-plea negotiations. That is especially relevant now that about 95 percent of criminal cases end in a guilty-plea.

All fifty states have a rule, statute or other type of authority concerning a prosecutor’s obligation to disclose information favorable to the defense. However, in most states what constitutes material evidence is left to prosecutors to determine. With no guidance from the Courts, or respective legislatures, it is troubling that prosecutors are left solely to decide materiality.

The confusion is amplified by the fact that prosecutors are confusing the test for a Brady violation—favorable and material—with the standard for disclosure, a standard that is not entirely clear. Prosecutors should provide all favorable evidence to the defense and the defense should decide what is material. As it stands in most states, prosecutors, not defense attorneys, are deciding what evidence might make a difference in the outcome.

That doesn’t make sense and some states, in addition to Tennessee, are doing something about it.

The New York Courts recently adopted a rule requiring judges to issue an order in criminal cases reminding prosecutors of their Brady obligations. The order does not change what prosecutors must turn over, but it would for, the first time allow, judges to hold prosecutors in contempt who willfully violate the obligation.

Just this month the U.S. Supreme Court decided a Brady case. The nuances of Brady were on full display. Justice Stephen Breyer, a left leaning justice, wrote the court’s opinion. Breyer found that the evidence withheld was favorable to a couple of defendants accused in the brutal gang rape and murder of a woman in Washington D.C. However, Breyer found that when the evidence that was withheld was considered along with the rest of the evidence before the jury “it is too little, too weak, or too distant from” the other evidence to have made a difference.

In a friend of the court brief filed in a case decided by the U.S. Supreme Court last year over 30 former federal and state prosecutors argued, ”[z]ealously protecting Brady is especially important at a time when . . . public confidence in the criminal justice system is declining.” The former prosecutors shared their support for the premise that “a prosecutor’s duty is to seek justice, not merely to convict.”

Prosecutors withholding favorable information because they believe it won’t make a difference in the case will do nothing to improve public confidence in the criminal justice system.

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

Texas arms hundreds of teachers and staff

There are scores of other gun-toting teachers and school officials in Texas who are known as “guardians.” At least 227 school districts, more than 20 percent of the state’s 1,031 districts, had authorized the guardian program by mid-August, compared to 170 districts in February, according to the Stateline.

Training programs surged this summer after a gunman killed eight students and two teachers in May at a high school in Santa Fe, Texas. About two-dozen states have considered similar programs in the wake of the Santa Fe massacre and last February’s shooting at a high school in Parkland, Florida, which killed 17 students and staff members.

“There’s a need out there,” says Bessent of the Wylie Independent School District, who, unlike other marshals, has been publicly identified so he can promote the program. “A school marshal’s responsibility is to isolate, distract and neutralize the threat. If they’re shooting at the school marshal, they’re not shooting at the kids and teachers.”

Craig Bessent, assistant superintendent of the Wylie Independent School District in Abilene, Texas, became part of the Texas School Marshal program in its inaugural class in 2014. Bessent — who has logged more than 500 hours of training and also served a marshal instructor — is a fervent public ambassador for the effectiveness of the school protection program.The Pew Charitable Trusts

Some Texas districts have posted signs on school buildings designed to deter would-be intruders. In the North Texas town of Peaster, for example, signs warn that “the staff at Peaster ISD is armed and may use whatever force necessary to protect our students.”

But the “Don’t Mess with Texas” style of defense remains controversial. Of all the states mulling such legislation this year, only Florida approved it.

President Donald Trump endorsed the idea, but a well-organized coalition that included educators, law enforcement groups, parents and vocal Parkland students pushed back in a state-by-state counterattack.

“We just absolutely do not agree with gun lobbyists that turning janitors and librarians into sharpshooters is effective,” said Shannon Watts, founder of Moms Demand Action for Gun Sense in America, a nationwide nonprofit that helped block bills in 16 of 17 states. Other bills are pending in at least a half-dozen other states.

After Alabama legislators rejected a bill that would have armed teachers and school administrators, Republican Gov. Kay Ivey created the “Alabama Sentry Program” to arm administrators on campuses. Democratic lawmakers denounced her action.

The issue also flared in California after several school districts began using an exemption in the state’s Gun-Free School Zone Act to authorize gun-licensed personnel to carry concealed firearms in schools. A bill signed by Democratic Gov. Jerry Brown in October closed the exemption and halted the practice.

The Florida law, while putting in place some gun control measures, created a $67 million marshal program that allows superintendents and sheriffs to arm designated school personnel, though not full-time classroom teachers.

 To read more CLICK HERE

Manafort's fate in the hands of the jury

Paul Manafort's fate -- and possibly the future of special counsel Robert Mueller's investigation into Russian interference in the 2016 election -- is now in the hands of 12 men and women from Northern Virginia, reported CNN.

The jury Thursday morning will begin debating the 18 counts of tax evasion, bank fraud and hiding foreign bank accounts facing Donald Trump's former campaign chairman. Manafort has pleaded not guilty to all charges.

For the first time, jurors will see pictures of the $15,000 ostrich jacket, $18,000 python jacket, and other high-end clothes Manafort purchased using foreign wire transfers. They will also debate the testimony of Rick Gates, Manafort's former deputy who admitted to embezzling hundreds of thousands of dollars. And they can pour over reams of emails, tax forms and financial documents that prosecutors say are the "star witness" in their case.

But the courtroom drama will be nothing compared to the political earthquake the verdict will bring, regardless of which way it comes down.

The President has repeatedly called Mueller's investigation a "witch hunt" that hasn't found evidence of Russian collusion with his campaign, and Trump's allies in and out of the White House say the special counsel should wrap things up.

To read more CLICK HERE

Nebraska carries out first execution in twenty-one years

The 16th Execution of 2018

Nebraska carried out its first execution in more than two decades on August 14, 2018 with a drug combination never tried before, including the first use of the powerful opioid fentanyl in a lethal injection, reported The Associated Press.

Carey Dean Moore, 60, was pronounced dead at 10:47 a.m. Moore had been sentenced to death for killing two cab drivers in Omaha in 1979. He was the first inmate to be lethally injected in Nebraska, which last carried out an execution in 1997, using the electric chair.

Witnesses said that there appeared to be no complications in the execution process, which also was the first time a state used four drugs in combination. Moore remained mostly still throughout the execution but breathed heavily and gradually red and then purple as the drugs were administered.

Media witnesses including The Associated Press saw Moore take short, gasping breaths that became deeper and more labored. His chest heaved several times before it went still. His eyelids briefly cracked open.

At one point while on the gurney, Moore turned his head and mouthed several words to his family, including “I love you.” No members of the victims’ families witnessed the execution.

The Department of Correctional Services said the first lethal injection drug was administered at 10:24 a.m. Moore was declared dead at 10:47 a.m.

In his final written statement , Moore admitted: “I am guilty.” But he said there are others on Nebraska’s death row who he believes are innocent and he said they should be released.

“How might you feel if your loved one was innocent and on death row?” Moore asked.

The execution drew only about a dozen death penalty supporters and protesters who stood in the rain outside the Nebraska State Penitentiary in Lincoln. Death penalty opponents planned to gather outside the Nebraska Capitol at 5 p.m. for their own rally.

The light turnout stood in contrast to the 1994 execution of Harold Lamont Otey, when more than 1,000 people created a raucous, party-like atmosphere. Otey was executed shortly after midnight in the electric chair, and some in the crowd sang the song “Na Na Hey Hey Kiss Him Goodbye” after it was announced. Later executions were scheduled at 10 a.m.cribe to The Morning Email.

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Moore’s execution comes a little more than three years after Nebraska lawmakers abolished the death penalty, only to have it reinstated the following year through a citizen ballot drive partially financed by Republican Gov. Pete Ricketts. The governor, a wealthy former businessman, has said he was fulfilling the wishes of voters in the conservative state.

The Nebraska drug protocol called for an initial IV dose of diazepam, commonly known as Valium, to render the inmate unconscious, followed by the powerful synthetic opioid fentanyl, then cisatracurium besylate to induce paralysis and stop the inmate from breathing and potassium chloride to stop the heart.

Diazepam and cisatracurium also had never been used in executions before.

According to prosecutors, Moore was 21 when he fatally shot Reuel Van Ness during a robbery with his younger brother, and used the money to buy drugs and pornography. Moore fatally shot Maynard Helgeland by himself five days later, saying he wanted to prove he could take a man’s life by himself. Moore was arrested a week later. He was charged and convicted of first-degree murder, while his 14-year-old brother was convicted of second-degree murder.

In his statement, Moore also apologized to his brother for dragging him into the robbery and murder.

“I should (have) led him in the right way to go instead of bringing him down, way down,” Moore said.

Moore had faced execution dates set by the Nebraska Supreme Court seven times since he was convicted, but each was delayed because of legal challenges and questions over whether previous lethal injection drugs were purchased legally. For some relatives of Moore’s victims, that was far too long — and they hope his name and crimes will finally vanish from headlines.

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DOJ fights efforts to expand 'Brady Rule'

The Justice Department is taking on the Tennessee Supreme Court’s Board of Professional Responsibility over the Brady Rule--the responsibility of the prosecution to turn over evidence to the defense, reported The Marshall Project.

It’s the kind of little-noticed move the department makes all the time but could have a lasting impact on the criminal justice system.

The department’s grievance is with an opinion published by the Tennessee Supreme Court’s Board of Professional Responsibility earlier this year announcing that prosecutors have a higher ethical obligation to divulge certain kinds of evidence than what’s legally required of them under the Constitution. That may seem like a nitpicky distinction. But in June, the department’s three U.S. attorneys in Tennessee penned a scathing 10-page letter demanding to appear before the board — a hearing that has now been scheduled for September.

“The DOJ can’t stand it when states try to use ethics to restrain their prosecutors’ conduct,” said Jennifer E. Laurin, a law professor at the University of Texas and an expert on discovery, who noted that federal prosecutors have been complaining about discovery rules since long before the Trump administration.

The Tennessee case revolves around what any prosecutor in the state, local or federal, should do with evidence that could prove a defendant’s innocence. The U.S. Supreme Court has ruled in the famous Brady v. Maryland and other decisions that district attorneys are duty-bound to disclose this evidence only when it’s “material” to a case — in other words, when it would probably change the outcome.

The Justice Department believes that guidepost is enough.

But over the past decade, lawyer ethics panels in at least a dozen states, now including Tennessee, have said it’s a vague and impotent standard. Prosecutors, these agencies say, are left to define “materiality” however they see fit, judging for themselves whether a piece of evidence might be useful to the defense or not.

Typically, prosecutors also don’t turn over evidence until trial. Yet estimates are that more than 95 percent of criminal cases are decided long before then, during plea bargaining.

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The 'circuitous and chaotic' path to Nebraska's upcoming execution

Nebraska intends to carry-out an execution tomorrow morning. It will be the first execution in Nebraska in more than 20 years.

The recent history of the death penalty in Nebraska has been circuitous and chaotic, reflecting the deep divisions over the punishment that mark the U.S. as a whole. reported The Marshall Project.

Though many have been sentenced to death in the state, only three people have been executed there since the 1950s, all in an electric chair. In 2008, the state supreme court declared electrocutions to be “cruel and unusual punishment.” Nebraska’s legislature responded by changing the method to lethal injection, making it the last state in the U.S. to adopt this method.

But nobody was executed, and then in May 2015 the legislature voted to repeal the death penalty altogether. It surprised many to see a largely conservative state make this move, but many Republican legislators said they were swayed by the punishment’s high financial cost. Governor Pete Ricketts did not agree, and he vetoed the repeal. The legislature managed to override his veto, but only by a single vote.

Anti-death penalty activists celebrated, but the story still wasn’t over. Grassroots pro-capital punishment activists campaign began to collect signatures — at car insurance agencies, farm equipment dealers, and other storefronts — for a petition to revive the death penalty through a public vote. Gov. Ricketts donated to the campaign, and it prevailed. In November 2016, Nebraska voters decided to bring back executions.

And still nobody was executed. Finally, in 2018, the state began preparing to carry out its first ever lethal injection. Carey Dean Moore, the state’s longest serving death row inmate, had decided he would no longer fight his appeals. Nebraska officials had struggled to find lethal injection drugs, and they announced a never-before-used four-drug combination featuring the opioid fentanyl.

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Murder clearance rate at lowest point ever

The national murder clearance rate—the percent of cases that end with an arrest or identification of a suspect who can’t be apprehended—fell to 59.4 percent in 2016, the lowest it’s been since the FBI has tracked the issue, reports The Crime Report. “If we don’t address it, the issue is just going to get worse,” said Jim Adcock, a former coroner who started the Mid-South Cold Case Initiative to help police departments looking to bolster their cold case units. Chicago, which cleared only 26 percent of homicides in 2016, is just one among many cities struggling to solve gun crimes. The problem has been exacerbated by politics, fear, a no-snitching philosophy mentality pervasive in some enclaves, diminished resources for law enforcement and discontent with policing in minority communities. Gangs fueling much of the violence have become less hierarchical. They have also become more perplexing for investigators to understand, said Peter Scharf, a Louisiana State University criminologist, reported the The USA Today.

In cities like Baltimore, Chicago and New Orleans—which cleared under 28 percent of its homicide cases in 2016—the fracturing of gangs has added a difficult dimension for detectives. “It’s a national disaster,” said Scharf. “With every one of these weekends where you see multiple killed and even more wounded and few arrested, the gangs become more emboldened and the witnesses weaker in their conviction to step up.” Memphis, where Adcock is based, saw its homicide clearance fall to 38 percent in 2016. Cities like Boston have made headway. Between 2007 and 2011, the city solved 47.1 percent of homicides. After focusing on the issue, police improved the clearance rate to 56.9 percent. The department increased the amount of evidence analyzed by the crime lab and interviewed more witnesses promptly at crime scenes, say Anthony Braga, a Northeastern University criminologist, and Desiree Dusseault, deputy police chief of staff.

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GateHouse: Impeachment madness

Matthew T. Mangino

GateHouse Media

August 10, 2018

The high drama of impeachment is being wielded as a political tool on a state and federal level.

West Virginia’s House Judiciary Committee has adopted articles of impeachment against the state’s entire Supreme Court of Appeals, accusing the judges of a range of crimes.

 “It’s a coup,” said Delegate Barbara Evans Fleischauer, a Democrat who is the judiciary committee’s minority chair. Fleischauer told NPR that she sees the timing of the impeachment as a ploy to allow GOP Gov. Jim Justice to appoint the majority of the justices on the state’s highest court. Any new justices would then serve until the next election in two years’ time.

A dozen GOP Pennsylvania lawmakers filed articles to impeach against four Democratic state Supreme Court justices who ruled the state’s congressional map was unconstitutionally gerrymandered and replaced it with a new one.

House Republicans in Congress have filed articles of impeachment against Deputy Attorney General Rod Rosenstein, who is overseeing Robert Mueller’s investigation of Russian collusion in the 2016 election.

California Congressman Devin Nunes, speaking at a recent Republican dinner, said Rosenstein hasn’t been impeached because of the midterm elections saying that Republicans could be the only force stopping President Donald Trump from being impeached.

Articles of Impeachment have been filed against President Donald Trump. He is accused of obstruction of justice related to the firing of FBI director James Comey, undermining the independence of the federal judiciary, accepting emoluments from a foreign government and other charges. In January the House tabled the Articles of Impeachment against Trump.

Is political acrimony the only criteria for impeachment?

When Gerald Ford was minority leader in the U.S. House of Representatives, he sought to impeach liberal Supreme Court Justice William O. Douglas. When asked what an impeachable offense was he said “whatever a majority of the House of Representatives considers it to be at a given moment in history.”

The Constitution allows for the impeachment and removal of an official of the government. Specifically, Article 2, Section 4 states that the “President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

There is no controlling authority on how lawmakers choose to interpret that standard, which makes it as much a question of political will as of legal analysis, according to the New York Times.

Although impeachment is often threatened, it is seldom used. There have been nine federal impeachments in the last 100 years. Four of those impeachments ended without a conviction including President Bill Clinton in 1999.

Politics and impeachment are not new.

In 1802, three justices of the Pennsylvania Supreme Court were impeached by the House, essentially for political reasons, but not convicted in the Senate.

In 1803, Vice President Aaron Burr presided over the impeachment trial of Supreme Court Justice Samuel Chase. Burr was under indictment himself for the killing of Alexander Hamilton. The impeachment was really a bitter fight between the Adam’s Federalists and the Jefferson Republicans. Chase was acquitted and Burr was later charged with treason.

Burr’s victim, Hamilton, presciently warned in “Federalist Paper No. 65” that a trial in the Senate of a public official cannot escape the influences of politics, “In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

The more things change the more they stay the same. Don’t fret — America is not on the verge of a political apocalypse. Today’s politics may seem a bit extreme, but at least the vice-president hasn’t shot any members of the president’s cabinet.

— 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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Tennessee executes killer of 7-year-old girl

The 15th Execution of 2018

Death row inmate Billy Ray Irick died at 7:48 p.m. CDT Thursday after Tennessee prison officials administered a lethal dose of toxic chemicals, reported The Tennessean. 

His execution, the first in Tennessee since 2009, comes after his 1986 conviction in Knox County for the rape and murder of 7-year-old Paula Dyer. 

Witnesses to the execution included members of Paula's family, Knox County Sheriff Jimmy "J.J." Jones, Tennessee Deputy Attorney General Scott Sutherland, Irick's attorney Gene Shiles and seven members of the media.

Irick is the 133rd person put to death by Tennessee since 1916. Before Irick, all but six executions occurred before 1961.

Moments before officials began administering the fatal doses, Irick, held down by straps over his chest and arms, muttered his final words: "I just want to say I'm really sorry. And that ... that's it."

The execution began later than scheduled. The blinds to the execution room lifted at 7:26 p.m., 16 minutes later than expected.

Irick, with nearly shoulder-length hair, a scraggly beard and dressed in a white prison jumpsuit and black socks, was coughing, choking and gasping for air. His face turned dark purple as the lethal drugs took over.

"I never thought for one moment that it would come to this," Shiles said inside the prison before the execution began. "I never did."

Witnesses entered the execution viewing chamber at 6:43 p.m., where prison officials turned out the lights until the blinds to the glass were lifted.

"I’m here first and foremost for the victim Paula Dyer and for the citizens of Knox County, the same citizens that convicted him and sentenced him to death," Jones said. "I wanted to hear some more from him. You’re always looking for that explanation.”

'He knew what he was doing': Looking back on Paula Dyer's last day on Earth

Shiles and Sutherland left the viewing room at 7:12 p.m., presumably to go into the execution chamber and observe Irick's IV being administered.

When the two men returned to the observation room around 7:25 p.m., Shiles told witnesses that he kissed Irick and touched him.

Moments later, after the blinds lifted and Irick made his statement, the administration of a combination of powerful and deadly drugs commenced.

Family members of Paula watched in a separate room off the execution chamber that was visible to other witnesses, including the media witnesses. One man leaned up close to the glass and bit his nail. A woman had her face pressed almost to the window.

First the executioner injected Irick with midazolam, a drug intended to render Irick unconscious. 

After Riverbend Warden Tony Mays determined Irick was unconscious, the executioner injected vecuronium bromide and potassium chloride, drugs intended to stop Irick's lungs and heart. 
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'We don't really have a criminal justice system . . . '

Glenn Harlan Reynolds, Opinion columnist for the USA Today wrote:

The truth is, we don’t really have a criminal justice system. Mostly, what we have is a plea-bargain system. Police arrest people, prosecutors charge them with crimes, and then a deal is struck. When the police search and arrest you, you have a lot of constitutional due process rights, but they’re mostly enforceable only if you go to trial. If you go to trial, you have a lot of constitutional due process rights there. But the prosecutor’s decision to charge you with a crime (and what to charge you with), which is key to the plea bargain deal, is subject to virtually no constitutional protections at all.

Once charged with a crime, defendants are in a tough position. First, they must bear the costs of a defense, assuming they are not indigent. Second, even if they consider themselves entirely innocent, they will face strong pressure to accept a plea bargain — pressure made worse by the modern tendency of prosecutors to overcharge with extensive "kitchen sink" indictments: Prosecutors count on the fact that when a defendant faces dozens of felony charges, the prospect that a jury might go along with even one of them will be enough to make a plea deal look attractive.

Because the vast majority of cases result in plea bargains, not trials, all the constitutional due process rights make little difference. The result is something that, except in rare cases where the crime is high-profile or the defendant is rich, doesn’t look much like what’s taught in civics classes. It looks more like a conveyor belt to prison, because that’s basically what it is.

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Man starves to death in Florida prison

When Vincent Gaines was sentenced to five years in prison on robbery charges in June 2013, state officials recommended he be placed in a mental-health unit because he had regular visual and auditory hallucinations. So Gaines was transferred to the Dade Correctional Institution in South Miami-Dade County, where he was placed on a "boneless diet" that left the five-foot-nine man 40 pounds lighter — dropping from 190 to 151 — in just 18 months.

After accumulating a series of disciplinary reports, Gaines was shuffled through multiple prisons before winding up at the Union Correctional Institution in Raiford, Florida, where he soon died. In his autopsy, he weighed only 115 pounds and showed obvious signs of malnourishment, reported the Miami  New Times.

Now Gaines' family says the evidence is clear: He was starved to death inside the state prison system and then buried on Florida Department of Corrections (FDOC) property without their knowledge or consent. His mother, Lorine, sued FDOC head Julie Jones, former for-profit prison health provider Corizon Health, and Union CI warden Kevin Jordan in North Florida federal court. The Palm Beach Post, which published a stinging investigation into Corizon Health's deadly failures across Florida in 2014, first reported on the lawsuit yesterday afternoon. To file the suit, Lorine Gaines partnered with the Human Rights Defense Center (HRDC), a nonprofit that fights for the rights of ex-prisoners nationwide.

"It is an outrage that in the 21st-century American prisoners are being starved to death in barbaric conditions by a prison system whose employees enjoy total impunity for their criminal actions," HRDC executive director Paul Wright, himself a former prisoner, said in a news release. (In addition to founding the HRDC, Wright also founded Prison Legal News, a monthly news magazine for and by prisoners, from his jail cell in 1990.) "We hope the civil justice system will help provide the deterrence that is otherwise sadly lacking within Florida’s prison system."

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Marijuana breathalyzer getting closer to implementation

One California company claims it has made a major breakthrough in creating what some thought of as a unicorn: a marijuana breathalyzer, reported NPR.

"We are trying to make the establishment of impairment around marijuana rational and to balance fairness and safety," says Hound Labs CEO Mike Lynn in his downtown Oakland, Calif., office.

In a freshly pressed dress shirt and short hair, it's clear Lynn is no stoner inventor with a pipe dream. The former venture capitalist is a practicing emergency room trauma physician in Oakland and an active SWAT team deputy reserve sheriff for Alameda County, Calif. He knows first hand the devastating effects drugged and drunk driving can have.

He picks up a small plastic box. "This is a disposable cartridge. And there's a whole bunch of science in this cartridge," Lynn says as he slips it into the device about the size of a large mobile phone. A small plastic tube sticks out of one end.

He starts to blow into the tube for the required thirty seconds.

Indicator bars start to show whether the machine detects any THC in his breath. THC is the psychoactive component in pot that gets you high.

Hound Labs says its device can accurately detect whether a person has smoked pot in the last two hours, a window many consider the peak impairment time frame. "When you find THC in breath, you can be pretty darn sure that somebody smoked pot in the last couple of hours," Lynn says. "And we don't want to have people driving during that time period or, frankly, at a work site in a construction zone."

Lynn then slides the cartridge into a small base station the size of a laptop, used to protect against cold or hot extremes. The breathalyzer needs a consistent temperature to have consistent results.

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President Trump makes an admission

On August 5, 2018, President Donald Trump, made a public admission. In one of a series of early-morning tweets, Trump addressed a meeting that his son Donald, Jr., held with a Russian lawyer affiliated with the Russian government, reported The New Yorker. “This was a meeting to get information on an opponent, totally legal and done all the time in politics - and it went nowhere,” he wrote. “I did not know about it!”

The tweet contains several crucial pieces of information. First, it is a clear admission that Donald Trump, Jr.,’s original statementabout the case was inaccurate enough to be considered a lie. He had said the meeting was with an unknown person who “might have information helpful to the campaign,” and that this person “primarily discussed a program about the adoption of Russian children.” This false statement was, according to his legal team, dictated by the President himself. There was good reason to mislead the American people about that meeting. Based on reporting—at the time and now—of the President’s admission, it was a conscious effort by the President’s son and two of his closest advisers to work with affiliates of the Russian government to obtain information that might sway the U.S. election in Trump’s favor. In short, it was, at minimum, a case of attempted collusion. The tweet indicates that Trump’s defense will continue to be that this attempt at collusion failed—“it went nowhere”—and that, even if it had succeeded, it would have been “totally legal and done all the time.” It is unclear why, if the meeting was entirely proper, it was important for the President to declare “I did not know about it!” or to tell the Attorney General, Jeff Sessions, to “stop this Rigged Witch Hunt right now.”

The President’s Sunday-morning tweet should be seen as a turning point. It doesn’t teach us anything new—most students of the case already understand what Donald Trump, Jr., Paul Manafort, and Jared Kushner knew about that Trump Tower meeting. But it ends any possibility of an alternative explanation. 

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Manafort finds no client-accountant privilege

Former Trump campaign chairman Paul Manafort’s accountant testified this week at his trial for tax perjury and bank fraud that she sent false documents and misrepresented a home so that Manafort could get a mortgage on one of his New York City propertiesm reported NBC News. She is the first witness to take the stand who has been granted immunity.

By any measure, when a cooperating witness is the defendant’s accountant, her testimony about her services is a betrayal of the client.

Manafort might have assumed that private financial information provided directly to a tax preparer was privileged information exchanged between a client and a professional. Financial records are often highly sensitive, and the same kind of information is often exchanged in protected attorney-client communications. As a result, a client might expect that his communications with an accountant are entitled to some form of protection from a sweeping grand jury investigation. That expectation is ill-informed.

Courts have historically allowed grand juries considerable latitude when conducting criminal inquiries and procuring information. However, a grand jury’s subpoena power has limitations. A grand jury cannot pierce the secrecy of a client’s validly asserted privilege.

The attorney-client privilege exists in the federal courts to protect confidential communications between a lawyer and his client. Its purpose is to encourage clients to make full and frank disclosure to their attorneys to assist in seeking legal advice. The privilege recognizes that sound legal advice serves the public interest and that this advice depends upon the lawyer's being fully informed by the client.

If the privilege applies, confidential communications between lawyer and client are completely protected from disclosure to a grand jury. Privilege then, by definition, simultaneously impedes the grand jury’s beneficial purpose of seeking full and free discovery of the truth.

For this reason the attorney-client privilege is to be narrowly construed in the grand jury context. It is recognized only to the very limited extent that excluding that obviously relevant evidence has a public good that outweighs the grand jury’s mission in ascertaining truth.

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GateHouse: Vatican changes centuries old doctrine on death penalty

Matthew T. Mangino

GateHouse Media

August 3, 2018

The Roman Catholic Church has formally changed its position on the death penalty. The church has formally declared its opposition to the death penalty under all circumstances. The Vatican announced this week that the church changed its teachings to reflect Pope Francis’ total opposition to capital punishment.

According to the new provision of the Catholic Catechism, “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.” The change was enacted by the Congregation for the Doctrine of the Faith, which is the body responsible for promulgating Catholic doctrine.

The 1.2 billion Catholics around the world have been bound by a centuries old church doctrine that allowed the death penalty.

More than 1,600 years ago, St. Augustine wrote about the death penalty in his long admired work, “The City of God.” St. Augustine’s writing included the following passage, “Therefore, it is in no way contrary to the commandment, ‘Thou shalt not kill’ to wage war at God’s bidding, or for the representatives of public authority to put criminals to death ...”

The 1911 edition of the Catholic Encyclopedia suggested that Catholics should hold that “the infliction of capital punishment is not contrary to the teaching of the Catholic Church. Eighty-years later, Cardinal Joseph Ratzinger — better known as Pope Benedict XVI — wrote that it may be permissible for the Catholic Church “to take up arms to repel an aggressor or to have recourse to capital punishment.”

Just 10 years ago, Most Rev. Samuel J. Aquila, Archbishop of Denver, speaking at Loyola College in Baltimore, Maryland said, “There are only two situations in which the regrettable taking of human life is not necessarily murder: The cases of an unjust aggressor and a criminal.”

The church’s doctrine, supported by many prominent members of the church through the written word, and spoken word, has ended with the flick of a pen.

The new doctrine will face stiff opposition here in the U.S where many Catholics support the death penalty. American Catholics have been “consistently” inconsistent on the intentional taking of human life.

Conservative Catholics have steadfastly opposed abortion and euthanasia but supported capital punishment, and conservative Catholics have had a lot of influence on law and policy. Before Justice Anthony Kennedy retired from the Supreme Court, five of the nine justices were Catholic. The balance will not change if Judge Brett Kavanaugh is confirmed — he too is a Catholic.

Many on the right see Kavanaugh’s nomination and confirmation as the end of Roe v. Wade. Five Catholic justices committed by religious belief to the end of legal abortion? It’s unlikely that Catholic Justice Sonya Sotomayor will vote to overturn Roe, but the Court’s newest Justice, Neil Gorsuch, just might.

However, will the Court’s religious bent bring about the abolition of capital punishment?

Pope Francis’ opposition to capital punishment — and the Catholic Church’s new position — come at a time when it appears that the world community is conflicted on the use of the death penalty.

In the U.S., where a majority of people continue to support the death penalty, support has begun to wane. Nineteen states and the District of Columbia have abolished capital punishment. According to the New York Times, at least four additional states have imposed some sort of moratorium on executions.

In the UK, where the death penalty was outlawed in 1965, the government has recently taken a surprising position. The UK, long a leader among European countries in fighting the use of capital punishment, may have signaled a change in direction.

British Home Secretary Sajid Javid told Attorney General Jeff Sessions that the UK will not seek assurances that the death penalty will not be imposed on two former British citizens if they are convicted in the United States of state sponsored terrorism.

The Pontiff is unequivocal in his opposition to the death penalty — will it matter in an equivocating world?

— 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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Mangino talks 3-D guns on WFMJ-TV21

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Forget the 3-D printed guns--focus on the DIY gun market

If lawmakers are truly worried about the threat of unregistered firearms, they should focus instead on the bustling market of unfinished firearms, reported Slate. They’re, commonly called 80 percent lowers, in reference to the fact that these kits include guns that are about 80 percent complete but don’t constitute a full firearm and therefore don’t require a serial number or background check to be sold. 

The 80 percent and do-it-yourself gun market has been able to blossom within a small loophole of the Gun Control Act of 1968, which made it illegal to build a firearm and sell it without a license. But the catch is that it’s legal if you make the firearm and keep it—no background check, serial number, or seller’s license needed. Do-it-yourself gun-making has been hard to regulate, largely because it’s hard to regulate componentry, and it’s near impossible to draw the line between a piece of metal that might go into a gun and one that actually does. And to make the prospect of regulating DIY guns even harder, there are already so many homemade guns out there it’s almost impossible to know that someone has one unless there’s an incident or someone has been stockpiling them to sell. The sad fact is that the more gun regulations pass, the more at-home gun-making kits sell. In California, for example, it’s illegal to possess an assault weapon like an AR-15, and Wilson told me in an interview earlier this year that California is his biggest market.

Despite what lawmakers were saying this week, it’s not clear that 3D-printed guns pose a serious threat. Plans for printing 3D weaponry never disappeared from the internet as a result of Wilson’s legal challenges, and it seems that 3D-printed guns don’t even work very well—when they do work. Police in Australia used a high-end 3D printer to make one, and when they fired it, the gun exploded upon the bullet leaving the chamber. People who print guns and try to shoot them might be more likely to blow off their hands than fire multiple bullets.

If lawmakers are concerned about threats having to do with 3D-printed weaponry, they might consider banning 3D-printed bump stocks, too, which are attachments that can be added to semi-automatic rifles to make them fire faster. Those might work better than a fully 3D-printed gun. But 80 percent lower kits remain a much bigger threat—and should be a higher priority for lawmakers.

Banning files from the internet doesn’t make much sense, anyway. Digital files can be reproduced with the click of a button. That’s how the internet works. Lawmakers should know this by now. 

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