Mangino a guest on Law and Crime Network's Daily Debrief

Watch my appearance on the Law and Crime Network's Daily Debrief with Aaron Keller.
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Feds won't let local DA arraign Pittsburgh synagogue shooter on murder charges

Federal officials have denied a request from the Allegheny County District Attorney for a temporary release of suspected synagogue shooter Robert Bowers so he could be arraigned on local homicide and hate-crime charges, reported the Pittsburgh Tribune-Review.

The District Attorney’s Office filed three dozen charges late Saturday night, including 11 counts of homicide. Bowers was arraigned on 29 federal charges Monday morning.

Bowers is accused of shooting 11 people to death and wounding six others at Temple of Life Congregation in Squirrel Hill Saturday morning.

District Attorney Stephen A. Zappala Jr. said in a statement this is “clearly a capital case.

“Ideally, as with previous prosecutions, the residents of our county would be the ones to sit in judgment of (Bowers) and should be given the opportunity to determine guilt and subsequent punishment,” he said.

Zappala said the investigation has been taken over by the FBI and the Department of Justice, and the case will need to move forward at the federal level first.

The state’s charges against Bowers will be put on hold in the meantime, Zappala said, noting his office will make sure Bowers’ right to a speedy trial is not violated.

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Condemned South Dakota man's last words: 'Sorry for the delay, I got stuck in traffic'

The 19th Execution of 2018

South Dakota murderer Rodney Scott Berget used his last words before his execution by lethal injection to make a joke about traffic, reported Newsweek.

Berget, 56, was sentenced to death for killing 63-year-old corrections officer Ronald Johnson in 2011. Berget beat Johnson to death with a pipe during a failed escape attempt the South Dakota State Penitentiary in Sioux Falls with another inmate.

Berget’s multiple appeals against the death penalty failed and his sentence was carried out at the South Dakota State Penitentiary on Monday evening just hours after a final rejection by the U.S. Supreme Court.

“Sorry for the delay, I got caught in traffic,” Berget joked with state officials as he prepared for the lethal injection, Fox News reported. He also thanked people for their support, mentioning two by name, and made a peace sign with his hand.

KSFY reported that Berget’s last meal was buttermilk pancakes, waffles, maple syrup, butter, breakfast sausage, scrambled eggs, French fries, Pepsi, and cherry nibs licorice.

 “The execution of inmate Rodney Berget was carried out this evening in accordance to state law,” said a statement from South Dakota’s Secretary of Corrections Denny Kaemingk.

“South Dakota Codified Law assigns the responsibility for carrying out the warrant of death sentence and offenders that are sentenced to death to the Department of Corrections. We take that responsibility very seriously.

“Director of Prison Operations and Chief Warden Darin Young and his staff spent extensive time preparing to ensure that the warrant of death sentence and execution was carried out in a professional, humane and dignified manner and in accordance to state law.”

Before the murder of Johnson, Berget was already serving life without parole after a conviction for attempted murder and kidnapping in 2003.

In 2012, Eric Robert, the other inmate convicted of murdering Johnson, was executed. A third inmate involved in the escape attempt, Michael Nordman, was sentenced to life in prison for handing the other two a plastic wrap and the pipe used to kill the officer.

In 2000, Berget’s older brother Roger Berget was executed in Oklahoma after spending 13 years on death row for murdering a man, The Argus Leader reported.

To read more CLICK HERE

Federal prosecutor seeks permission to pursue death penalty for Pittsburgh synagogue massacre

U.S. Attorney Scott Brady says federal prosecutors are seeking approval to pursue the death penalty against Bowers, reported the Associated Press.

Brady says he has begun the process to get Attorney General Jeff Sessions’ approval as required by law to pursue a capital case against Bowers.

The attack went on for about 20 minutes and the FBI is treating the shooting as a hate crime.

“Members of the Tree of Life synagogue conducting a peaceful service were brutally murdered in their place a worship by a gunman targeting them simply because of their faith,” Bob Jones, of the FBI, said.

Criminal homicide charges have been filed against a man accused of killing 11 people and injuring several others inside a Squirrel Hill synagogue on Saturday.

Police say 46-year-old Robert Bowers walked into the Tree of Life Synagogue yelling anti-Semitic slurs and shooting at worshipers while three separate services were taking place.

The Allegheny County District Attorney’s Office has now filed charges against the alleged gunman, which include 11 counts of criminal homicide, along with six counts of attempted homicide, six counts of aggravated assault and 13 counts of ethnic intimidation.

Investigators say Bowers was armed with an AR-15 and three handguns. All four weapons were used in the shooting.

Bowers exchanged gunfire with police before he was subdued and taken to the hospital. He has undergone surgery and is under guard at the hospital.

Four officers were among the injured. One officer was released from the hospital on Saturday and a second was released Sunday. According to Pittsburgh Police Chief Scott Schubert, the other two officers will require further treatment.

According to court paperwork, Bowers made statements to police “that he wanted all Jews to die and also that they were committing genocide to his people.”

To read more CLICK HERE

Trump signs measure to fight opioid epidemic

US President Donald Trump signed the SUPPORT for Patients and Communities Act into law, a measure to combat the opioid crisis by reducing drug demand through education, awareness and prevention efforts, enhancing treatment and recovery, and cutting off the supply from traffickers, reported Jurist.

The act has been deemed “the single largest legislative package addressing a single drug crisis in history.” SUPPORT is the short name for “Substance Use–Disorder Prevention that Promotes Opioid Recovery and Treatment.” Trump’s administration is partnered with the National Drug Control Policy (ONDCP), Truth Initiative and Ad Council to focus the education toward youth and young adults.

In preventing opioid addiction, the act induces research aimed at “efforts for innovative therapies to prevent addiction, to offer non-addictive pain management alternatives, and to improve overdose prevention tools.” Among other actions to eliminate drug trafficking, the act will help to protect the borders, ports of entry, and waterways and “require more advanced data to flag high-risk international mail shipments.” Other provisions address establishing measures to curtail shipments of synthetic opioids like fentanyl, funding research into non-addictive painkillers, and requirements for the Food and Drug Administration to allot smaller amounts of prescription opioid pills.

The Senate voted 99-1 to pass the bill last month with Senator Mike Lee (R-UT) giving the only vote against the legislation.

To visit Jurist CLICK HERE

GateHouse: DNA evidence comes full circle

Matthew T. Mangino

GateHouse Media

October 26, 2018

The criminal justice system has embraced the nearly unchallenged power of DNA evidence. The connection of a suspect to a victim or crime scene by DNA evidence is considered the gold standard among criminal investigators.

In a stunning bit of irony, as DNA analysis has improved and the access to potential samples increased exponentially, DNA has opened the door to wrongful arrests and convictions.

The emerging concern, long considered a theoretical risk but only now confirmed by a variety of studies, is that the presence of DNA does not prove that a suspect actually visited the scene or directly touched the object in question. DNA can be transferred by other means.

DNA analysis once required substantial samples of blood or other bodily fluids in order to create a DNA profile. However, technological advances in the study of DNA now make it possible to produce a complete genetic profile of a suspect from just a few cells found on a victim or object.

Attorney Erin E. Murphy, author of “Inside the Cell: The Dark Side of Forensic DNA” said, “When you consider that over 10,000 cells can fit on the head of a pin, it becomes clear that the days of testing only large, visible stains are long past.”

According to Christopher Zoukis in Criminal Legal News, scientists learned as early as 1997 that in addition to primary or direct transfer — DNA transferred from an individual to an object — DNA can also be transferred from the touched object to a second person. This phenomenon, known as secondary DNA transfer, should have thrown up an immediate red flag in the world of forensic DNA analysis — it did not.

Twenty-one years later — with DNA analysis evolving rapidly — there has been an alarming lack of analysis of secondary transfer by forensic scientists. Cynthia Cale of the Human Biology Program at the University of Indiana published a 2016 study in the Journal of Forensic Science in which she and her colleagues confirmed the secondary DNA transfer phenomenon.

The study concluded that secondary transfer of DNA through intermediary contact is far more common than previously thought, a finding that could have serious implications for the criminal justice system.

Cale’s experiment included people exchanging long handshakes immediately prior to handling knives. When each knife was tested, the DNA of the person who handled it was found in almost every case. However, 85 percent of the time the tests found the DNA profile of a person who never touched the knife. Perhaps even more shocking was that 20 percent of the time, the non-touching person came back as the primary and in some cases, the only contributor of DNA.

The problem is simple. The science has outpaced common sense. DNA is not a magic bullet. The mere fact that it exists does not mean a conviction is inevitable. DNA must be analyzed and carefully considered along with all the other evidence in a case.

For instance, if a suspect’s DNA is found at a crime scene and it was later learned that he was in jail when the crime was committed that is pretty good proof that his DNA somehow ended up at the crime scene, even though he never did. On the other hand, if a suspect with a DNA connection tells police he was watching television with his girlfriend when the crime was committed will he be given the same deference?

How far will police go to determine if the DNA was transferred to the crime scene by some person, or some object, other than the suspect him or herself?

DNA has helped exonerate individuals wrongfully convicted, at times after long prison stays. DNA has long been lauded for solving “cold cases,” investigations that have long remained dormant. Most importantly, DNA has helped convicted offenders who may have otherwise evaded prosecution.

It would be unfortunate if advances in DNA technology would be responsible for placing innocent people in jeopardy because trace evidence was used to falsely place those people at a crime scene.

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

Senate Judiciary Committee Chairman Grassley asks for investigation of Kavanaugh accuser and her attorney

A woman who accused Brett Kavanaugh of attending parties where gang rapes occurred has been referred to the Department of Justice for a criminal investigation along with the lawyer who represents her, Michael Avenatti, reported the ABA Journal.

Senate Judiciary Committee Chairman Charles Grassley, an Iowa Republican, made the referral in a letter on Thursday, according to a press release. The Washington Post, ABC, Politico and the Hill are among the publications with coverage.

Avenatti and his client, Julie Swetnick, submitted statements to the committee that “likely contained materially false claims,” Grassley wrote in the letter, addressed to Attorney General Jeff Sessions and FBI Director Christopher Wray.

Avenatti, who is known for his representation of adult film actress Stormy Daniels, said in a tweet that “We welcome the investigation as now we can finally get to the bottom of Judge Kavanaugh’s lies and conduct.”

“It is illegal to knowingly and willfully make materially false, fictitious or fraudulent statements to congressional investigators,” Grassley wrote. “It is illegal to obstruct committee investigations. It is illegal to conspire to do either of those things. When charlatans make false claims to the committee—claims that may earn them short-term media exposure and financial gain but which hinder the committee’s ability to do its job—there should be consequences.”

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Capital punishment in Japan has broad public support

Japan’s capital punishment system is criticized as cruel and secretive yet remains popular.

Unusual for an major industrialized power, capital punishment in Japan enjoys broad public support with few calls for its abolition, reported the South China Morning Post.

Inmates are executed not by professionals but by ordinary prison staff who may have been guarding the condemned for months or even years, and who receive extra an 20,000 yen (US$180) each.

 “It’s awful, the body bounces like a 70kg object on a nylon rope,” said Toshio Sakamoto, who witnessed noosed inmates plunge to their deaths, and described the process as “unbearable”.

Blindfolded convicts, usually serial murderers, are led to a spot with their feet bound and hands cuffed. Then, a trapdoor opens below.

The mechanism is triggered by a button in an adjacent room, pressed simultaneously by several officers, although none is told which button is the “live one” that will cause the prisoner’s fall.

The guards assigned to carry out the executions “remember the [inmates’] body temperatures, their breathing, their words … But they must do most of the work,” Sakamoto said.

And they receive no counselling. They are expected to “digest” the execution themselves, Sakamoto explained.

“There is no worse job,” he said. “The cost of a human life is 100,000 yen.”

Japan is the only major industrialized democracy other than the United States to carry out capital punishment.

The system was thrust into the international spotlight in July when the country hanged 13 doomsday cultists responsible for a deadly sarin gas attack in 1995 but the secretive methods have come under fire for being cruel for criminals, families and guards.

Under law, the death sentence should be carried out six months after confirmed by the top court.

In reality however, prisoners languish on death row for many years – Japan has a total of 110 awaiting execution.

“Prisoners are typically only given a few hours’ notice before execution, but some may be given no warning at all,” Amnesty International said recently.

“Inmates are kept in isolation suffering the anguish of never knowing when they are going to be put to death, sometimes for decades,” the group said.

Families are only informed after the execution.

Munehiro Nishiguchi, a convicted murderer whose appeal against the death sentence is being heard in the Supreme Court, said the news of the Aum cult executions came as “an indescribable shock”.

“I feel I’m such a pathetically weak person,” he wrote in a letter to Yo Nagatsuka, who filmed a documentary exploring public perceptions of capital punishment in Japan.

“I have realized the real punishment or agony from the death sentence is the fear you feel until the day comes,” he also wrote.

Former guard Sakamoto notes that a high reliance on confessions and a conviction rate of much more than 90 per cent allows room for coercion and false charges.

The government cites broad public support as a reason to maintain capital punishment but there is little public debate as the whole process is veiled in secrecy. 

The authorities have just once allowed a 30-minute media visit inside the glass-walled execution room in the Tokyo Detention House, arguably the best-kept among Japan’s seven facilities with gallows.

A 2014 government survey of about 1,800 people showed 80 per cent thought capital punishment was “unavoidable”, with only one in 10 in favor of abolishing it.

But 38 per cent thought it should be abolished if Japan introduces life imprisonment without parole – something the penal code does not currently allow.

One 62-year-old businessman in Tokyo said it would be “insane” to think of scrapping capital punishment.

And Mika Koike, 29, an IT engineer, said: “Taking the victims and their families into consideration, I think there is no other clear, absolute way to punish the offenders.”

Kotaro Yamakami, 25, a politics student, said murderers should pay in kind.

“There is a saying, ‘An eye for an eye, a tooth for a tooth.’ I think it’s unavoidable that those who committed heinous crimes are executed.”

But he acknowledged there was an increasing number opposed to the death penalty and urged authorities to consider introducing life imprisonment with no parole.

For now, there is no sign that Japan’s leaders are pondering any changes.

On July 5, the eve of executions of seven Aum cultists, a smiling Prime Minister Shinzo Abe was photographed in a drinking party with fellow politicians, giving the thumbs-up for a collective snapshot with his justice minister who had signed off on the hanging orders.

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Mangino on WFMJ-TV Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today. To watch the interview CLICK HERE

Sen. Flake no profile in courage

Arizona Sen. Jeff Flake admits he had doubts about the testimony of newly-confirmed Supreme Court Justice Brett Kavanaugh.

But he didn’t let that stop him from voting for him anyway, Flake admitted on “The View” according to Huffington Post.

The retiring Republican senator added that hearing from the Kavanaugh protesters who confronted him prior to the vote influenced his decision to ask for a delay allowing the FBI to investigate the sexual misconduct allegations against Kavanaugh.

“I felt for them,” Flake said of the two women protesters who confronted him in a Senate elevator. “You could tell that it was genuine, and I just want them to know we hear them.”

Flake ended up voting to confirm Kavanaugh even though he admitted on the show that he still isn’t sure if Christine Blasey Ford, the woman who accused the then-nominee of sexual assault, was telling the truth during her testimony.

“You know, she was very compelling; he was very persuasive,” Flake said. “I don’t know, I don’t know. I wish I had the certitude that some of my colleagues expressed, but I said on the floor before that hearing, we’re likely to leave the hearing with as much doubt as certainty, and that’s how I felt afterwards.”

“View” co-host Joy Behar asked Flake why he couldn’t support another candidate.

“On the flip side ... if the mere allegation with no corroboration is sufficient to disqualify someone, we’ve entered into a new phase that we probably don’t want to enter,” Flake responded.

At that point, co-host Sunny Hostin cut to the chase.

“So you didn’t believe her?” she asked.

“I don’t know,” Flake said. “I don’t know if I believed him either.”

To read more CLICK HERE

Florida grand jury rejects official's 'stand your ground' defense for killing shoplifter

A city official in central Florida has been charged with second-degree murder after a fatal shooting at a military surplus store he owns, reported the Washington Post.

In indicting Lakeland City Commissioner Michael Dunn on the murder charge, a grand jury effectively rejected Florida’s “stand your ground” law as a possible defense for the commissioner’s actions, though the argument that Dunn acted in self-defense will probably appear again in court, officials said.

On Oct. 3, police responded to Dunn’s business, the Vets Army and Navy Surplus store in Lakeland, where Dunn said a man had attempted to steal a small hatchet, according to a statement by the Lakeland Police Department.

That alleged shoplifter, 50-year-old Christobal Lopez, was found at the entrance of the store with gunshot wounds and pronounced dead at the scene, police said.

According to police, Dunn said Lopez had come into the store with his father, then attempted to take and hide a hatchet while the father was making a purchase.

“Dunn stopped Lopez asking him if he was going to pay for the item and a confrontation ensued,” police stated. “Dunn then fired his weapon, striking Lopez, who was still in possession of the hatchet."

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Perceived fairness of death penalty falls to new low

The percentage of Americans who believe the death penalty is applied fairly continues to decrease, falling below 50% this year for the first time, reported Gallup. Forty-nine percent now say the death penalty is applied fairly and 45% say it is applied unfairly.

The 49% who say the death penalty is applied fairly is, by one percentage point, the lowest Gallup has measured since it first asked the question in 2000 and reflects a gradual decline of this view over the past decade. Meanwhile, the percentage who say capital punishment is applied unfairly has edged higher, with this year's four-point gap marking the smallest difference between the two views in Gallup's polling.

These latest data, from Gallup's annual Crime poll, were collected Oct. 1-10 -- just before the Washington state Supreme Court on Oct. 11 struck down that state's death penalty, saying it had been unequally applied across racial groups. In its decision, the court cited evidence that "black defendants were 4 ½ times more likely to be sentenced to death than similarly situated white defendants." The decision makes Washington the 20th state to outlaw the death penalty.

The decline in Americans' belief that capital punishment is applied fairly is largely the result of a sharp drop in this view among Democrats. Thirty-one percent of Democrats this year say the death penalty is applied fairly, similar to the low of 30% in 2017 but down significantly from 2005 and 2006, when slim majorities held this view.

Meanwhile, 73% of Republicans say the death penalty is applied fairly, and the percentage holding this view has been fairly stable over time -- typically in the low 70s.

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New Castle killing may be act of serial killer

Cops in Pennsylvania say a man already behind bars for committing two homicides could be a serial killer responsible for multiple unsolved slayings that stretch back decades, Reports the Huffington Post.

Regis Brown, 59, of Fairview, pleaded guilty to brutally murdering his wife, Michelle, 53, and his 35-year-old stepdaughter Tammy Greenawalt inside their Fairview Township home earlier this year. Investigators said he killed the two women in the presence of Brown’s 14-year-old stepgranddaughter, whom he held captive for several days, police said.

Brown received a life sentence last month after pleading guilty to one count each of first- and third-degree felony murder.

The story might’ve ended there, police said, had Brown not decided to keep talking about his past, which they now suspect involves up to a half-dozen other homicides.

During a Thursday news conference, Pennsylvania State Police Detective Joseph Vascetti announced charges against Brown in the 30-year-old cold case slaying of 45-year-old Bryce Kenneth Tompkins, of New Castle.

Tompkins’ body was found partially submerged in a Lawrence County creek on Dec. 26, 1988. An autopsy determined he’d been shot twice in the back. According to Vascetti, Brown admitted to killing Tompkins because he was a witness to a burglary Brown had committed.

Up to this point, Brown has only been charged in Tompkins’ death. But officials say there’s much more to this case.

“He’s either been arrested for, or confessed to, or is a strong suspect in eight homicides right now in the northern part of the state from Lawrence County to Erie,” Vascetti said.

The detective declined to provide additional information in the five other homicides. It’s also unclear why, after so many years, Brown has allegedly decided to cooperate.

Brown faces multiple charges in connection with Thompkins’ slaying, including criminal homicide, aggravated assault and intimidation of witnesses, police said.

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GateHouse: Gun violence: A tale of four cities

Matthew T. Mangino

GateHouse Media

October 20, 2018

Last weekend — Friday, Saturday and Sunday — not a single person was reported shot in all of New York City. The Big Apple is home to 8.6 million people and not a single reported shooting in the entire city.

Compare that to the last full weekend of August in Memphis, Tennessee, a population of about 650,000. Seven people were shot and killed. All seven of the victims were men. Six of the dead were between the ages 23 and 49.

The carnage is Memphis pales in comparison to Chicago’s deadly first weekend of August. At least 72 people were shot, including 12 fatally. Chicago, with a population of 2.7 million — about a third of New York City — hasn’t seen things improve. During the third weekend of August, 61 people were shot with eight dead.

Do you think guns in Chicago are a problem? Police Superintendent Eddie Johnson told the USA Today that officers shut down 68 illegal block parties during the most recent deadly weekend seizing 83 guns, and arresting 29 people on gun charges.

Deadly weekends are not exclusive to Chicago and Memphis. At least seven people were shot and killed during the last weekend in September in Baltimore. Police told CBS WJZ two people were gunned downed Saturday evening, with three more fatal shootings overnight Saturday, and another one Sunday morning and the seventh Sunday evening. Baltimore has a population of about 618,000 people.

How has America’s largest city found the answer to gun violence?

“NYPD has the best strategy, the best training ... because this department never rests on its laurels,” New York Mayor Bill de Blasio told the New York Post. “This department always seeks to get better.”

The story is bleak in Chicago. “There is a shortage of values about what is right, what is wrong,” Mayor Rahm Emanuel told CBS News. “We as a city, in every corner, have an accountability and responsibility. If you know who did this, be a neighbor. Speak up.”

Bill Gibbons of the Memphis Shelby Crime Commission told WREG.com, “I think what we’re facing is a situation where, unfortunately, people are trying to resolve conflict through violence, and we need to address that.”

If New York City has found the solution to gun violence why isn’t it being replicated?

“We know far less about gun violence as a cause of injury and death than we do about almost every medical problem,” Dr. Elinore Kaufman, chief resident in surgery at Presbyterian/Weill Cornell Medical Center told Time.

In 1996, Congressman Jay Dickey, a self-proclaimed “point-man” for the National Rifle Association, proposed a legislative amendment that removed millions of dollars from the Center for Disease Control’s budget earmarked for firearms-related research.

Twenty-one years later, things haven’t changed. According to a 2017 study published in the Journal of the American Medical Association, gun violence research received what amounts to 5.3 percent of the federal funds dedicated to studying motor-vehicle accidents — even though guns and cars kill at about the same rate.

According to the Washington Post, there are no national studies of who owns guns, how gun owners acquired their weapons, the theft of guns, the number of households with guns, the attributes of high-quality gun training or the risk factors associated with gun violence.

As Congress hides from the NRA, states have been left to pick up the slack, and most states have been reluctant. The NRA is equally influential in state capitals across the country.

However, California has stepped up. The state recently opened the nation’s first state-funded firearms-violence research center, on the Sacramento campus of the University of California-Davis.

Garen Wintemute, the director of the center, told the Post, “California essentially said that the federal government wasn’t fulfilling its responsibility, so we’re going to step into the breach.”

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 read more CLICK HERE

Louisiana DAs support referendum calling for unanimous jury verdicts

Four of Louisiana’s highest-profile district attorneys are lending their support to a proposed constitutional amendment on the Nov. 6 ballot that would require juries in the state to return unanimous verdicts in all felony cases – something every other state besides Oregon does, reported The Advocate.

Hillar Moore III, Paul Connick, James Stewart Sr. and Keith Stutes, the district attorneys, respectively, for East Baton Rouge, Jefferson, Caddo and Lafayette parishes, each told The Advocate this week that they have decided to back the closely watched ballot measure.

They preside over four of the six busiest trial dockets among Louisiana’s 42 judicial districts, records show.

Moore said he hopes changing the law will help restore fractured confidence in the criminal justice system. Stewart, a retired judge, called the proposed amendment an “opportunity to be on the right side of history,” and noted that Louisiana already requires unanimous verdicts in capital cases and for lesser felonies tried by six-person juries.

Stutes, whose jurisdiction includes Acadia and Vermilion parishes along with Lafayette, offered a similar rationale for his endorsement.

“I simply think at this point in our history, it’s no longer good for us to be one of only two states that are different than the rest of the nation,” he said.

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FBI investigates Manhattan DA for dropping high profile investigations

FBI agents are probing the Manhattan district attorney’s office over its handling of high-profile cases that were dropped once lawyers for the well-connected subjects made donations, reported the New York Daily News.

Investigators have been quietly seeking information in recent months about decision-making by DA Cy Vance Jr. and his staff, sources with knowledge of the undertaking said.

The queries are centered on how things are handled in the office and who the major players are, the sources said. The FBI interest grew out of revelations that investigations were closed once lawyers representing the bigwig suspects made hefty donations to Vance’s campaign coffers, sources said.

The team has asked about current and former high-level staff members and their relationships to private law firms and outside agencies, sources said. Investigators are considering whether undue influence was at play.

The extent of the inquiry was not immediately known and it was not clear whether criminal charges were being considered.

Manhattan’s top prosecutor came under fire last year after questions surfaced about his office’s 2015 decision not to go after ex-Hollywood mogul Harvey Weinstein after model Ambra Battilana accused him of groping her breasts in his Tribeca office.

A lawyer hired by Weinstein at the time had given Vance $24,000 and another attorney sent him $10,000 after the decision to spare the powerful producer an arrest.

To read more CLICK HERE

Official Corruption Prosecutions Drop Under Trump

The latest available data from the Justice Department show that during the first eleven months of FY 2018 the government reported 340 new official corruption prosecutions,. If this activity continues at the same pace, the annual total of prosecutions will be 371 for this fiscal year. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is down 23.5% over the past fiscal year when the number of prosecutions totaled 485.

The comparisons of the number of defendants charged with official corruption- offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys (see Table 1).

Compared to five years ago when there were 636, the estimate of FY 2018 prosecutions of this type is down 41.7 percent. Prosecutions over the past year are lower than they were ten years ago. Overall, the data show that prosecutions of this type are down 45 percent from the level of 675 reported in 2008 and down 59.1 percent from the level of 906 reported in 1998.

To read more CLICK HERE

Opposition to Congress reducing federal criminal penalties for drug traffickers

A new survey commissioned by the Foundation for Safeguarding Justice finds opposition to proposals in Congress that would reduce federal criminal penalties for drug traffickers and allow the release of prisoners to “home confinement,” reported The Crime Report.

Three out of four people surveyed (74 percent) said that they oppose proposals that reduce penalties for criminals involved in the trafficking of heroin, fentanyl, and similar drugs. The foundation was created by the National Association of Assistant United States Attorneys (NAAUSA), who prosecute criminal cases in federal courts.

The foundation says that the FIRST STEP Act, now pending in the Senate, would permit the release of drug traffickers serving time in federal prison, with the remainder of their sentence spent under “home confinement.” Critics say that home confinement allows drug traffickers to continue illicit activities while serving their sentences. A proposal to reduce federal penalties for traffickers in heroin, fentanyl, and similar drugs is opposed by 87 percent of Republicans, 70 percent of Democrats and 73 percent of independents, the foundation says. 

Only 14 percent of survey respondents believe the federal government is too tough in its handling of drug trafficking, while three out of four (76 percent) think that the federal government is either not tough enough (51 percent) or about right (25 percent) in its current handling of drug traffickers.

To read the survey CLICK HERE

PA prisons implement new, and costly, drug eradication system

Rather than allow inmates to receive personal letters, drawings from their children, photographs, birthday cards, and other kinds of mail directly, the Pennsylvania Department of Corrections will use a new service that will cost taxpayers at least $376,000 a month, or well over $4 million a year, reported Reason Magazine.

As explained on its website, the department implemented the new policy after staff members were reportedly sickened by an unknown substance, which prompted the announcement of a statewide lockdown in August. Mail will first go through a Florida-based service called Smart Communications. The company will scan the mail and then send black and white digital copies to inmates. The original mail, including photographs, will then be held for 45 days and subsequently destroyed. The electronic mail will only be saved for seven years. Mail related to legal matters and other official documents will be forwarded to the institutions, opened in front of the inmate, copied, and the originals will be destroyed after a 15-day retention period. Inmates will not be able to keep the originals.

The department maintains that the process will help cut down on a the amount of drugs smuggled into state prisons, even documenting drug finds on various inmates. It's also a good business opportunity for private companies seeking to contract with prisons. Smart Communications already provides limited email technology and a teleconferencing system to prisons, and now touts its mail system as completely eliminating postal mail. Bloomberg quotes Corrections Accountability Project Director Bianca Tylek, who believes digitized mail services could earn private contractors "more than $180 million annually."

To read more CLICK HERE

GateHouse: Another chapter to the Laquan McDonald murder

Matthew T. Mangino

GateHouse Media

October 13, 2018

There was an extraordinary verdict in Chicago last week. A white police officer was convicted of killing a black teenager. A Chicago police officer hasn’t been convicted of killing a suspect while on duty in more than a half century.

What might be even more extraordinary is that the police officer was charged at all. Jason Van Dyke was a 13-year veteran of the force. According to The Associated Press, he was the subject of at least 20 citizen complaints — eight of which alleged excessive force.

The killing occurred in 2014. Van Dyke shot 17-year-old Laquan McDonald 16 times as McDonald carried a knife and refused to heed the orders of police. The dash cam video of the incident is shocking and has been viewed by millions of people across the country.

The video is graphic and shows Van Dyke emptying his service pistol into McDonald as he fell and lay motionless on the ground. The video was concealed from the public for 13 months. Had the video remained under wraps Van Dyke might still be patrolling the streets of Chicago.

Even before the trial, the case had an impact on law enforcement in Chicago. The city’s police superintendent was fired and the county’s top prosecutor, who waited 400 days to file charges, lost a bid for reelection. The killing also led to a Department of Justice (DOJ) investigation.

Nicole Gonzalez Van Cleve, an Associate Professor at The University of Delaware, wrote in The Atlantic that the DOJ report detailed excessive use of force, including shooting unarmed citizens who did not pose a threat. The disciplining of officers was both rare and inconsistent. The report revealed that the Chicago Police Department engaged in coordinated efforts to “coach and conceal” misconduct.

A week before jury selection, Mayor Rahm Emanuel became the latest victim of the alleged cover-up, announcing he would not seek a third term. Emanuel faced fierce criticism after he fought the release of the dash cam video until after his re-election in 2015.

Prosecutors in Chicago charged Van Dyke with first-degree murder.

To find him guilty of first-degree murder, jurors had to find that Van Dyke “intended to kill or do great bodily harm to Laquan McDonald or he knew that such acts would cause death or he knew that such acts created a strong probability of death or great bodily harm” and he “was not justified in using the force which he used.”

Prosecutors had to prove his intent beyond a reasonable doubt — the highest standard of proof in the court system. Jurors clearly crossed that threshold, reported the Chicago Sun-Times. But the judge also instructed them to consider a “mitigating” factor.

Van Dyke’s lawyers had to prove that he, “at the time he performed the acts which caused the death of Laquan McDonald, believed the circumstances to be such that they justified (the) deadly force he used, but his belief that such circumstances existed was unreasonable.”

Van Dyke was convicted of second-degree murder and 16 counts of aggravated battery for each shot fired into McDonald. Following the verdict, three jurors said they had problems deciding between first and second-degree murder.

“Second-degree was the mitigating factor that in Mr. Van Dyke’s mind he was doing the right thing, he was experiencing an extreme threat, in his mind that’s how he’s experiencing it, and he felt like he needed to protect himself,” said one of the jurors.

This case is not over. Three other Chicago police officers — David March, Joseph Walsh and Thomas Gaffney — are charged with lying about the shooting and conspiring to protect Van Dyke from possible prosecution.

The three officers pleaded “not guilty” and are scheduled for trial beginning Nov. 26.

For some in Chicago, the next trial is as important as the last. Confidence in the police has eroded as a result of the alleged cover-up and the many cover-ups that created a 50-year lull in prosecuting police officers for using deadly excessive force.

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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Washington state Supreme Court rules death penalty unconstitutional

Washington’s Supreme Court unanimously struck down the state’s death penalty as arbitrary and racially biased, making it the 20th state to do away with capital punishment, reported the Seattle Times.

Execution was already extremely rare in Washington, with five prisoners put to death in recent decades and a governor-imposed moratorium blocking its use since 2014.

But the court’s opinion eliminated it entirely, converted the sentences for the state’s eight death row inmates to life in prison without release, and furthered a trend away from capital punishment in the U.S.

 “The death penalty is becoming increasingly geographically isolated,” said Robert Dunham, executive director of the Washington, D.C.-based Death Penalty Information Center. “It’s still on the books in 30 states, but it’s not being used in 30 states. It’s becoming a creature of the Deep South and the Southwest.”

Texas continues to execute more prisoners than any other state — 108 since 2010. Florida has executed 28, Georgia 26 and Oklahoma 21 in that time frame. But nationally, death sentences are down 85 percent since the 1990s, Dunham said.

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Philly DA charges two officers for illegal stop-and-frisk

Philadelphia’s District Attorney’s Office last week quietly pressed charges against two PPD officers in a stop-and-frisk case criminal justice experts say may be first of its kind in the nation, according to Billypenn.com.

DA Larry Krasner has made steady progress on his campaign promise to hold police accountable for alleged criminal misconduct. In his first nine months in office, his office has filed charges against eight city officers for six alleged on-duty incidents.

Most of the alleged incidents were violent in nature: There was the case against two ex-SEPTA Transit officers over the 2017 beating of an intoxicated man on an El platform in Frankford, which a judge dismissed during a preliminary hearing last month for lack of evidence. Then there’s the ongoing case against a former Kensington officer who was captured on cell phone video body-slamming a handcuffed man. And highest-profile among the eight charged officers, Krasner is pursuing a murder case against former PPD officer Ryan Pownall over the 2017 shooting of David Jones.

While those cases have dominated headlines, the stop-and-frisk charges could have lasting effects on the city’s law enforcement agencies, regardless of the case’s outcome.

Two officers stand accused of making a pedestrian stop-and-frisk, detaining a citizen without cause, and then lying about it on official paperwork. While the police department itself has been sued over its rampant stop-and-frisk practices before, Philly officers have rarely, if ever, been taken to court over the department’s long-sanctioned policy, which critics say amounts to “stop first, justify later.”

“I don’t know if I’ve ever seen it before,” said David Rudovsky, one of the civil rights attorneys who has sued the department over the practice, about last week’s charges.

Such a case is unprecedented even on the national level, said Thomas Nolan, a Boston-based criminologist and a former senior policy analyst at the Department of Homeland Security.

“This will no doubt prove to be extremely unsettling to the police rank and file,” Nolan said after being briefed on the charges. “Overt acts of criminality — such as robbing a drug dealer or shooting an unarmed fleeing suspect — were always at least potentially prosecutable. But it was almost an article of faith that the police would often engage in stops and create the justification for them after the fact.”

Some experts dismiss the case as a lost cause. Some worry about it exacerbating the highly disputed “Ferguson effect” among city officers. Others call the charges necessary to ensure oversight in a police department entrenched in its own toxic culture. All agree: This is a strange, new ballgame for criminal justice.

14th District Officers Matthew Walsh and Marvin Jones stand accused of illegally detaining a man in East Mount Airy last April.

Investigating a civilian complaint filed by the detainee, the department’s Internal Affairs Bureau found video evidence that contradicted the officers’ legal justification for the stop. In official paperwork, the officers alleged that their suspect was “apparently using narcotics.”

Investigators determined that Walsh and Jones fabricated their cause for the frisk, which was that the man wouldn’t remove his hands from his pockets. “The citizen was fully compliant at the time of the stop,” police officials wrote in a press release announcing both officers’ arrest and impending dismissal.

Investigators said the officers detained the man for about 15 minutes, drove him around the block and released him. The detainee later filed a civilian complaint against the officers, triggering the Internal Affairs investigation that would result in their arrest.

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Justice Sotomayor cites Dickens to blast solitary confinement

After the Supreme Court shot down a challenge to the use of solitary confinement in prison, Justice Sonia Sotomayor voiced alarm about depriving inmates of daylight for months and years, according to Courthouse News Service.

Consolidated from two appeals at the 10th Circuit, the case at issue stems from the incarceration of Jonathan Apodaca, Joshua Vigil and Donnie Lowe at the Colorado State Penitentiary.

Sotomayor noted that while the three men were in so-called administrative segregation, doing stints that ran between 11 and 25 months, none were allowed outside except for “recreation time” in a small room with a chin-up bar.

Measuring 90 square feet, this room did have two windows, but the metal grates covering them could almost be said to be more cruel than sealed glass.

“The grates have holes approximately the size of a quarter that open to the outside,” a prior district court described it, as quoted Tuesday by Sotomayor. “The inmate can see through the holes, can sometimes feel a breeze, and can sometimes feel the warmth of the sun. This is his only exposure of any kind to fresh air.”

Sotomayor went on to explain that the court has for years recognized the perversion in capriciously depriving a prisoner of outdoor exercise for extended periods of time.

“It should be clear by now that our Constitution does not permit such a total deprivation in the absence of a particularly compelling interest,” she wrote.

The opinion also notes that petitioner Lowe died in the spring after he was released directly onto the streets after 11 years in solitary confinement. The crime that had sent him to prison was second-degree burglary and introduction of contraband.

“While we do not know what caused his death in May 2018, we do know that solitary confinement imprints on those that it clutches a wide range of psychological scars,” she wrote.

Today Colorado allows all inmates “access to outdoor recreation” for at least one hour, three times per week, subject to “security or safety considerations,” Sotomayor added.

She emphasized that such changes represent “steps toward a more humane system” but “cannot undo what petitioners, and others similarly situated, have experienced.”

Quoting a 2015 concurrence from Justice Anthony Kennedy in the case Davis v. Ayala, Sotomayor also noted that the experience of solitary confinement described in “A Tale of Two Cities” was inspired by a real-life visit Charles Dickens paid to Philadelphia’s Eastern State Penitentiary.

“Dickens did not question the penal officers’ motives,” Sotomayor wrote. “He concluded, rather, that they did ‘not know what it is that they are doing’ and that ‘very few’ were ‘capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers.’ The pain caused was invisible and inaudible, such that ‘slumbering humanity’ was ‘not roused up’ to put a stop to it.

“We are no longer so unaware. Courts and corrections officials must accordingly remain alert to the clear constitutional problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in ‘near-total isolation’ from the living world, in what comes perilously close to a penal tomb.”

The Supreme Court did include any grant of certiorari today in its batch of orders.

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Mangino joins Rossi and Bianchi for Law and Crime Network Columbus Day Broadcast

Watch my segment with Gene Rossi and Host Bob Bianchi on Law and Crime Network examining the aftermath of the Jason Van Dyke Trial.
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Why there is a death penalty and why it needs to be carried out

One condemned California San Quentin Prison death row inmate killed another, reported the Associated Press.

Jonathan Fajardo, 30, was stabbed in the chest and neck with an inmate-made weapon in a recreational yard of the cell house that holds the bulk of condemned inmates at San Quentin State Prison, said corrections department spokeswoman Terry Thornton.

Luis Rodriguez, 34, is considered the suspect, she said. Investigators were trying to determine a motive and how he obtained or was able to make the weapon, she said.

There is high security on death row, were every inmate is housed separately but most are allowed to congregate in small groups in the exercise yard where Fajardo was killed, Thornton said.

Aside from the higher security, Smith said that statistically, prisoners serving life sentences and “folks who are on ‘the row’ generally have the lowest levels of prison violence, even though it would seem that they might do anything because they have the worst penalty. In fact, they actually have very, very low incidences of violence in prison.”

Fajardo was awaiting execution on two counts of murder in Los Angeles County in what was considered a hate crime. He also received seven life sentences.

He was identified as a Latino gang member who killed a 14-year-old black girl in a racially motivated shooting. He was also condemned for the stabbing death two weeks later of a man who prosecutors said was killed because fellow gang members believed he might be cooperating with police.

Rodriguez is awaiting execution on two counts of murder, also from Los Angeles County. Local media reports identified Rodriguez as a member of another Latino gang convicted of killing two men from a rival gang. He was already suspected of another murder that resulted in a life sentence.

No one has been executed in California since 2006, though voters in 2016 passed an initiative that is attempting to speed up capital punishment. Far more condemned inmates on the nation’s largest death row have died of natural causes or suicide than have been executed since California reinstated capital punishment in 1978.

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PA DA criticizes state police investigation of officer involved shooting

The investigation by Pennsylvania State Police into an officer-involved shooting earlier this year was flawed on multiple accounts that could have led to questions about its integrity, a memorandum prepared by Chester County District Attorney Tom Hogan and included in an unprecedented lawsuit filed by state trooper union officials suggests, reported the Daily Local News.

Those errors, states the 16-page memo, begin with the failure of the state police commander at the scene of the shooting in southern Chester County to notify Hogan immediately of the incident and open the door for investigators from his office to take over an independent review of the incident — a requirement of a policy Hogan put in place in 2016 in the county after it was endorsed by the Pennsylvania District Attorneys Association.

Hogan noted that the policy has been opposed by the former state police commissioner at the time, but that he maintains that it is “a lawful order.”

“The District Attorney is the chief law enforcement officer in the county as a matter of law and the independent investigating agency, the Chester County Detectives, have primary jurisdiction over all of Chester County,” he wrote. “The disagreement of (the state police’s) former Commissioner with the … policy may have been the source of (the state police’s) failures to follow the protocol and resulting problems in the investigation.” 

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With Senate vote Judge Kavanaugh now Justice Kavanaugh

Judge Brett M. Kavanaugh was confirmed to the Supreme Court by one of the slimmest margins in American history, locking in a solid conservative majority on the court and capping a rancorous battle that began as a debate over judicial ideology and concluded with a national reckoning over sexual misconduct, reported the New York Times.

As a chorus of women in the Senate’s public galleries repeatedly interrupted the proceedings with cries of “Shame!,” somber-looking senators voted 50 to 48 — almost entirely along party lines — to elevate Judge Kavanaugh. 

He was promptly sworn in by both Chief Justice John G. Roberts Jr. and the retired Justice Anthony M. Kennedy — the court’s longtime swing vote, whom he will replace — in a private ceremony.

GateHouse: The fate of two strangely connected men plays out before the Supreme Court

Matthew T. Mangino

GateHouse Media

October 5, 2018

This past week has provided America with some stark contrasts within the justice system. The question on everyone’s mind seems to be — how long is too long?

This week the U.S. Supreme Court heard arguments about an Alabama death row inmate, Vernon Madison, who murdered a police officer 33 years ago. While on death row he has been stricken with vascular dementia and doesn’t remember his crime.

The court tasked with deciding Madison’s fate is one justice short as a result of the delayed, and beleaguered, confirmation of Judge Brett Kavanaugh — due in part to an alleged sexual assault occurring 36 years ago.

Certainly, a murder conviction and alleged sexual assault are two very different things, but sparing someone death by lethal injection and taking a lifetime seat on the Supreme Court are also very different.

The similarities relate to time and redemption.

Madison was 34 when he was charged in 1985 with shooting Mobile police Cpl. Julius Schulte to death as he responded to a domestic violence call.

At a hearing in July 1985, Madison entered a plea claiming his innocence and wrote a letter to the court saying his civil rights were being violated. “I am of poverty, but I’m not without knowledge of the law,” he wrote.

Kavanaugh is 53, he grew-up in an affluent neighborhood in the Maryland suburbs of Washington, D.C. His life of privilege included attending the elite Georgetown Preparatory School and Yale University for his undergraduate and law school degrees. He served as a clerk for Supreme Justice Anthony M. Kennedy, the man he seeks to replace.

Kavanaugh’s confirmation to the Supreme Court was delayed following compelling testimony from Dr. Christine Blasey Ford alleging that in 1982, at a friend’s house, Kavanaugh pinned her on a bed, drunkenly groped her, tried to take off her clothes and put his hand over her mouth when she tried to scream.

Judge Kavanaugh says the woman who accuses him of assaulting her and the wider circle of classmates and acquaintances who say he misrepresented a history of alcohol abuse and aggressive conduct, according to the Washington Post, are “simply misremembering the past, and that their distorted recollections cannot be substantiated by more reliable evidence.”

As with Kavanaugh, “misremembering the past” and “distorted recollections” have had an impact on Vernon Madison. The fogginess is not that of witnesses or friends it’s Madison’s own memory that has faded.

Last year, the High Court reversed a federal appeals court ruling that had struck down Madison’s death sentence. The lower court found that Madison had suffered strokes in prison and could not remember the crime — he could not make sense of his punishment.

The Supreme Court reversed, finding there is a difference between condemned inmates who cannot recall their crimes and those who cannot “rationally comprehend the concepts of crime and punishment.”

Attorneys for both Madison and Kavanaugh must surely hope that the public will stop focusing on the past and pay more attention to who their clients are today.

Neither Madison nor Kavanaugh have suggested that the crimes they have been accused of, or in Madison’s case convicted of, are insignificant. But some will have us believe that the passage of time has rendered their decades-old conduct less significant.

Is murder ever insignificant? No rational person would make that argument. Is examining the teenage exploits of a hard-drinking, jock who didn’t understand the word “no,” insignificant to the confirmation process for a seat on the United States Supreme Court? A lot of people think it is insignificant.

Madison’s days are numbered, his health is failing. His ability to harm another person has diminished to zero. The U.S. Senate will have to decide the potential harm, if any, to our legal system — and our nation — when considering what impact past conduct should have on the confirmation of Judge Kavanaugh.

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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Kavanaugh vote expected on Saturday

Republicans are moving forward with plans for a key procedural vote on Friday and a final vote on Saturday to seek confirmation of Judge Brett Kavanaugh to a lifetime job on the U.S. Supreme Court.

Republicans control the Senate by a 51-49 margin, reported the Huffington Post. No Republicans have said they will vote against Kavanaugh, although four have not committed to supporting him.

Comments by two of them - Jeff Flake and Susan Collins - indicated the FBI report, which was the latest twist in the pitched political battle over Kavanaugh, may have allayed their concerns about him. Flake, a frequent Trump critic, was instrumental in getting the president to order the FBI investigation last Friday.

Collins said the FBI investigation appeared to be thorough. Flake said he saw no additional corroborating information against Kavanaugh, although he was “still reading” it. Another undecided Republican, Senator Lisa Murkowski, did not offer her view on the FBI report.

Cory Gardner, a Republican from Colorado, wants to finish reading the report before he makes a decision, his spokesman Casey Contres told the Denver Post. Gardner’s spokesman did not respond to a request for comment from Reuters.

While the comments by Flake and Collins were positive, neither explicitly announced support for Kavanaugh.

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Mangino comments on Jason Van Dyke trial for Law and Crime Network

Watch my commentary on the Law and Crime Network regarding the trial of former police officer Jason Van Dyke charged with the murder of Laquan McDonald.

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The Vindicator: Pennsylvania must stop arbitrary suspension of driving privileges

Matthew T. Mangino

The Vindicator

September 29, 2018

Paul Bell was a preacher in Georgia in the late 1960s. The weekend before Thanksgiving 1968, Bell was driving to one of the three churches he oversaw when 5-year-old Sherry Capes crashed her bicycle into the side of Bell’s car.

Bell didn’t have insurance. At the time, Georgia law provided that the registration and license of an uninsured motorist involved in an accident would be suspended unless the motorist posted a bond to cover the cost of any claim.

Bell fought his case all the way to the U.S. Supreme Court contending he was entitled to a hearing to show he was not at fault, before his license was suspended. In 1971, the High Court ruled that the holder of a driver’s license has a property interest in that license and that the license may not be suspended or revoked without due process of law.

Due process

The requirements of due process include notice and an opportunity to be heard at a hearing. Due process may also require an opportunity to confront witnesses and the right to be represented by counsel.

In Bell’s case the court concluded that once issued, a driver’s license is essential in the pursuit of his livelihood. Bell traveled to three different churches to serve his rural congregations. For everyone else, it meant a driver’s license was more than just a piece of paper; it had value and could not be arbitrarily taken.

Nearly 50 years later, Pennsylvania is one of 12 states that still imposes mandatory driver’s license suspensions for certain drug offenses, without due process of law, regardless of whether the crime has anything to do with driving.

Between 2011 and 2016, Pennsylvania suspended the driver’s licenses of about 149,000 people for “drug convictions unrelated to traffic safety,” according to the York Daily Record. Those individuals are essentially deprived of the ability to work, attend school or care for themselves and their family.

A driver’s license is not a privilege – it is a necessity. Individuals who live in rural areas with limited access to public transportation – and there are a lot of such areas in Pennsylvania – are essentially stranded without access to even basic necessities without the help of neighbors, family and friends.

Gainful employment

A lawsuit filed in Pennsylvania by Equal Justice Under Law alleges that it is critical for people who have criminal convictions to maintain gainful employment, pursue education, keep doctor’s appointments and take care of family members. Imposing “additional and debilitating” measures against a driver whose license has been suspended “make(s) successful post-conviction rehabilitation a near impossibility.”

Even public safety is at risk when the legislature “piles on” drug offenders.

According to the lawsuit filed by Equal Justice Under Law, drivers with suspended licenses often drive out of necessity even while their licenses remain suspended, requiring law enforcement to devote time to policing noncompliance rather than focusing on legitimate threats to traffic safety.

A study of suspended and revoked driver’s licenses in Pennsylvania found “[t]here is significant and increasing frustration in the law enforcement community as a result of the increased administrative workload and time and energy required for non-driving related offenses,” suggesting that non-traffic related license suspensions burden public safety resources rather than increases public safety.

Legislation

Gov. Tom Wolf supports legislation to eliminate non-driving related driver’s license suspensions. GOP State Rep. Rick Saccone is the primary sponsor of House Bill 163, which would remove driver’s license suspensions for non-driving offenses. The House overwhelmingly passed the bill with a vote of 192-3.

The measure is now in the Senate Transportation Committee.

The measure is a common sense plan for alleviating the burden on drivers, law enforcement and the courts. A significant majority of the states, including Ohio, have taken action to acknowledge the arbitrary act of taking an individual’s driving privileges – it is not only a bad idea but unconstitutional. Pennsylvania needs to follow suit.

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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Chief Justice Roberts goes about deal making without ninth justice

This week the U.S. Supreme Court heard arguments in Madison v. Alabama a capital case in which death row inmate Vernon Madison's attorneys are suggesting that his dementia disqualifies him for execution.  The case was a glimpse into how the court might proceed with only eight members. is During arguments it quickly became clear that the justices were divided—possibly by a 4-4 vote.
So Chief Justice John Roberts Jr. went to work—as he did in the 2016 term when the court also had only eight members, as reported by The National Law Journal, Supreme Court Brief.

Roberts distilled the conflicting arguments to find common ground, and soon was laying out a possible solution so narrow, it might apply only to one death row inmate—Vernon Madison, the man whose case was before the court, and whose severe avascular dementia has left him disabled in many ways and unable to remember his crime of killing a police officer in 1985.
Roberts started crafting the deal after both Bryan Stevenson, Madison's lawyer, and Alabama Deputy Attorney General Thomas Govan Jr. seemed to give ground. They probably knew that the current eight-member court is not in the mood for big decisions.

In a colloquy with Govan, Roberts said Stevenson had conceded that "simply not remembering the crime is not enough" to let Madison avoid the death penalty, while Govan argued that "if it's vascular dementia that affects you up to the point of Ford and Panetti, that is enough" to make Madison ineligible for execution.
"So are all we arguing about is whether Mr. Madison himself meets the Ford and Panetti standard?" Roberts asked, referring to the two relevant Supreme Court precedents that bar the execution of persons who are incompetent or have no comprehension of why they face execution.
He seemed to be telegraphing that because of Madison's severe form of dementia, it’s not necessary to craft a sweeping Eighth Amendment decision that would expand the ban to include the growing number of aging inmates with less severe dementia or memory loss.
"That's exactly right," Gavan told Roberts, and the deal seemed sealed. The outcome is still uncertain, but Roberts may have found a way out of a 4-4 tie—a tactic he may have to deploy again soon.

To read the argument CLICK HERE

U.S. Supreme Court slated to hear several criminal law cases this term

Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law, provided this summary for the ABA Journal of upcoming criminal cases slated for the U.S. Supreme Court.

SEPARATE SOVEREIGN DOCTRINE

In Gamble v. United States, the court will consider whether to overrule the “separate sovereigns doctrine,” which provides that the federal government and state governments are separate sovereigns, and double jeopardy does not bar prosecutions against the same person for the same crime in both federal and state courts. This was the holding in Abbate v. United States (1959) and Bartkus v. Illinois (1959), though the doctrine can be traced to Supreme Court decisions going back to the middle of the 19th century.

DEATH PENALTY

There are two important cases about the administration of the death penalty. In Madison v. Alabama, the court will consider whether it is cruel and unusual punishment for a state to execute a person who has developed severe dementia and is unable to remember his offense. The court previously ruled that it violates the Eighth Amendment for a state to execute the mentally insane—Ford v. Wainwright (1986); Panetti v. Quarterman (2007)—or the mentally disabled— Atkins v. Virginia (2002). The question is how this applies to a prisoner who has developed dementia, something courts will increasingly face with an aging population on death row across the country.

In Bucklew v. Precythe, the court will consider whether it is cruel and unusual punishment to use a method of execution, lethal injection, that risks great pain and suffering because of a rare medical condition. In Baze v. Rees (2008) and Glossip v. Gross (2015), the court rejected facial challenges to laws that provided for execution by lethal injection. Bucklew v. Precythe is an as applied challenge based on Bucklew’s rare and severe medical condition.

DELEGATION OF POWER

Many have noted that the conservative justices on the court have indicated a desire for more judicial oversight of administrative agencies. In Gundy v. United States, the court will consider whether the Sex Offender Registration and Notification Act is an unconstitutional excessive delegation of legislative power to the attorney general. SORNA makes it a federal crime for a sex offender to travel across state lines if he or she has not registered as a sex offender as required by a state’s law. Congress left many matters to the attorney general, including deciding how this should apply to offenders who were convicted before SORNA was enacted.

The Supreme Court last declared a federal law unconstitutional as an excessive delegation of powers in 1935. If the court were to invalidate SORNA on this basis, it would open the door to challenges to countless federal laws with broad delegations of power to executive officials and agencies.

FORFEITURES

In Timbs v. Indiana, the court will consider whether the Eighth Amendment’s prohibition of excessive fines applies to state and local governments. Tyson Timbs was convicted of selling 4 grams of heroin. Although the maximum fine for this under Indiana law was $10,000, the state sought forfeiture of his $42,000 Land Rover because it had been used to transport the drugs. The Indiana Supreme Court rejected the argument that this disproportionate penalty violated the excessive fines clause, concluding that the U.S. Supreme Court never had found the excessive fines clause to be incorporated into the due process clause and to apply to state and local governments. That issue is now squarely before the Supreme Court.
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