All is far from well in the nation's civil and criminal justice systems

Daryl K. Brown wrote in the Penn Regulatory Review wrote about Professor Benjamin H. Barton and Judge Stephanos Bibas new book, Rebooting Justice, "all is far from well in the nation’s civil and criminal justice systems."

Barton and Bibas make the case that the dramatic transformations of American justice have been insufficient and, in some respects, ill-conceived—sometimes due to unintended consequences. In this brief response to their work, I will focus on their criticisms of and proposals for the criminal justice system, which the authors condemn as even less innovative than the nation’s system of civil justice.

One problem, Barton and Bibas argue, is that the U.S. Supreme Court’s landmark decision in Gideon v. Wainwright has not lived up to its promise of assuring every criminal defendant effective representation from a skilled lawyer—which is a failing of the political system. Gideon depends on legislatures adequately funding defense lawyers, and it is now clear that many will not.

A familiar, unhelpful response of critics is simply that they ought to. But Barton and Bibas accept the political reality that funding from legislatures is unlikely; instead, they look for realistic—if perhaps second-best—solutions. Two of their key ideas are controversial but meritorious.

First, they would “bow to reality” and cut back Gideon’s scope, so that defendants would no longer have a right to counsel if charged only with an offense punishable by less than six months in jail, the same line that defines the right to a jury trial. That proposal is potentially a big deal: There are many times more petty offenses than serious felonies in U.S. courts.

Second, they target the definition of “unauthorized practice of law,” which gives lawyers a monopoly over providing legal services. And this monopoly is why legal services provision looks so different from the provision of medical services. Regulation of medical practice permits not only doctors, but a range of other skilled, licensed professionals—nurses, nurse-practitioners, physicians’ assistants, and the like—who provide important services at lower cost. But the legal services market has no equivalents.

Certifying skilled nonlawyers to provide certain services ought to bring down prices, putting them within reach of people unable to afford lawyers. On the civil side, for example, paralegals could draft wills, or special advocates could handle bankruptcy or debt collection cases. Criminal courts could introduce new kinds of certifications for “criminal defense advocates,” trained in three semesters’ worth of law school instead of six and at much less cost, who could represent people charged with certain kinds of offenses—perhaps only misdemeanors, perhaps more serious charges as well.

The United Kingdom and Ireland already have taken a step in this direction: Unrepresented parties can have a nonlawyer “McKenzie Friend” assist them in court. Charities have arisen to provide people with experienced McKenzie Friends, and one can even hire a McKenzie Friend for a fee. Scotland allows “lay representatives” to speak in court on behalf of parties and conduct litigation.

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More than 4.1 million students endured lockdowns in 2017-2018

School shootings remain rare, even after 2018, a year of historic carnage on K-12 campuses, reported the Washington Post. What’s not rare are lockdowns, which have become a hallmark of American education and a byproduct of this country’s inability to curb its gun violence epidemic. Lockdowns save lives during real attacks, but even when there is no gunman stalking the hallways, the procedures can inflict immense psychological damage on children convinced that they’re in danger. And the number of kids who have experienced these ordeals is extraordinary.

More than 4.1 million students endured at least one lockdown in the 2017-2018 school year alone, according to a first-of-its-kind analysis by The Washington Post that included a review of 20,000 news stories and data from school districts in 31 of the country’s largest cities.

The number of students affected eclipsed the populations of Maine, Rhode Island, Delaware and Vermont combined. But the total figure is likely much higher because many school districts — including in Detroit and Chicago — do not track them and hundreds never make the news, particularly when they happen at urban schools attended primarily by children of color.

Still, on a typical day last school year, at least 16 campuses locked down, with nine related to gun violence or the threat of it. The Post’s final tally of lockdowns exceeded 6,200.

The sudden order to hunker down can overwhelm students, who have wept and soiled themselves, written farewell messages to family members and wills explaining what should be done with their bicycles and PlayStations. The terror can feel especially acute right after school shootings like the one in Parkland, Fla., when kids are inundated with details from massacres that have taken the lives of students just like them.

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GateHouse: The undeniable impact of the death penalty

Matthew T. Mangino

GateHouse Media

December 28, 2018

More than half of all Americans support the death penalty, according to a Gallup poll conducted last fall. As 2018 comes to a close, the statistics don’t live up to the polling, but they also do not tell the whole story.

This year, there were 25 men executed in the United States. That is two more executions than last year and 73 less than the 1999 high-water mark of the modern era of the death penalty.

This year’s executions were carried out in only eight states, primarily in the south. Texas again led the nation with 13 executions, next was Tennessee with three. No other state had more than two executions.

According to the Death Penalty Information Center, a non-profit advocacy group, “the prolonged decline in new death sentences in the United States reached new historic lows in 2018.”

The 42 new death sentences imposed this year mark the fourth straight year with fewer than 50 new death sentences.

In 2018, Washington became the 20th state to abolish the death penalty and even Pope Francis jumped into the fray. The pope revised the position of the Catholic Church, formally declaring the death penalty “an attack on the inviolability and dignity of the person.”

Regardless of the future of the death penalty in America, the ultimate punishment has left its mark on the entire criminal justice system. During the 1990s when violent crime was on the rise and states were churning out executions - juvenile offenders were incurring the wrath of lawmakers across the country.

State after state made it easier to try juveniles as adults, made it easier to throw juveniles in adult prison and made it common place to hand out longer and more draconian sentences. For instance, in 1995 Pennsylvania’s newly-elected governor, Tom Ridge, called a special legislative session on crime. The result was a change in charging juveniles as adults - resulting, in part, in Pennsylvania having more than 500 juveniles serving life without parole, more than any other state in the union.

Then in 2005, the U.S. Supreme Court outlawed the execution of all persons under the age of 18. The Court found that executing juveniles violated the Eighth Amendment ban on cruel and unusual punishment. The High Court did not stop there. Justice Anthony Kennedy suggested that the juvenile brain is not fully developed at age 16 or 17 and, in fact, may not be fully developed until the early 20′s. “The qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” wrote Kennedy.

Since then, the Court has also ruled that a juvenile can’t be sentenced to life without parole for a non-homicide offense, or to mandatory life without parole. However, the Supreme Court has never extended those protections beyond the age of 18.

No other decision of the U.S. Supreme Court has had more impact on modern juvenile jurisprudence than the High Court’s decision banning the execution of juvenile offenders. The reasoning behind that decision has started to creep beyond the acts of juveniles and into the realm of adult criminal justice.

Last year, a Kentucky court found that it was unconstitutional to sentence to death those who were younger than 21 at the time of their offense. Earlier this year, a federal court in Connecticut found that a man, who had been sentenced to life in prison without the possibility of parole for murders committed at age 18, should be resentenced. The court ruled that “the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.”

The impact of the death penalty is undeniable - regardless of one’s opinion about its propriety.
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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ABA Journal's 25 greatest legal movies

Ten years ago, the ABA Journal published a cover story called “The 25 Greatest Legal Movies,” a roster of top-notch legal-themed films drawn from a panel that included lawyers, law professors and, yes, an actual judge.

We wanted to update the list this year and decided to broaden the scope to consider films that tell stories outside the typical courtroom drama—films that examine how the legal system intersects with our lives in different ways.

To review the expanded top 25 CLICK HERE

Pennsylvania's 'Clean Slate' legislation provides for sealing of criminal records

Governor Tom Wolf has signed a bill this summer to wipe clean criminal records for certain low-level offenders if they go a decade without any other convictions, reported WESA-FM.

The so-called “Clean Slate” measure has garnered bipartisan support. Under the new law, people who serve a year or more in prison can petition courts to have their records sealed after 10 years, as long as they’ve made all their court-mandated payments.

Second or third-degree misdemeanors that require less than a two-year prison sentence are also eligible for automatic records-sealing.

Philadelphia Representative Jordan Harris said if people with sealed records are asked about prior convictions, it will be like the crime never happened.

“If this person is applying for a job, their answer is no,” he said. “And our hope is that folks who have ten years free from crime won’t commit any. Quite honestly, the statistics show that.”

Pennsylvania is the first state to pass such legislation.

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The Vindicator: ‘Stand your ground’ gets new life

Matthew T. Mangino

The Vindicator

December 23, 2018

In November, the Ohio House of Representatives approved legislation that would include a provision for “stand your ground” self-defense. The vote in favor of the legislation was a whopping 2-to-1.

The bill is in the Senate and in spite of the overwhelming support in the House this legislation is far from a done deal.

A similar bill was thwarted in 2013, and Ohio’s outgoing governor, John Kasich, said he would veto the legislation. However, that may change with Gov.-elect Mike DeWine.

In 2013, the Fraternal Order of Police and the Ohio Prosecuting Attorneys Association opposed stand your ground. Both organizations have taken the same position this time around. “That’s obviously an officer safety issue that we’re concerned with,” Michael Weinman, spokesman for the FOP, told the Cincinnati Enquirer.

Florida law

In 2005, Florida passed the first stand your ground law expanding on what was known as the Castle Doctrine. The Castle Doctrine permitted the use of deadly force within one’s home without first attempting to retreat.

Florida’s stand your ground law stated “a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

According to the National Conference of State Legislatures, laws in at least 25 states provide that there is no duty to retreat from an attacker in any place in which one is lawfully present. At least 10 of those states, including Pennsylvania, have language stating one may stand his or her ground.

Pennsylvania’s law, amended in 2011, distinguishes the use of deadly force outside one’s home or vehicle. It provides that in such locations one cannot use deadly force unless there is a reasonable belief of imminent death or injury, and either the ability to retreat safely is not present or the attacker displays or uses a lethal weapon.

Research published recently in the Journal of the American Medical Association suggests that stand your ground increased homicide rates.

Soon after the law took effect in Florida, there was a sudden and sustained 24 percent jump in the monthly homicide rate – the rate of homicides caused by firearms increased by 32 percent.

An investigation by the Tampa Bay Times, a Florida newspaper, found that the rate of homicides declared justifiable tripled in the five years after the passage of stand your ground.

In Ohio, the proposed law would also shift the burden of proof for self-defense from the individual who used deadly force to the prosecutor. The prosecutor would have to prove beyond a reasonable doubt the individual didn’t act in self- defense.

More than 11 million Americans now have concealed carry permits. Stand your ground and the proliferation of gun ownership has increased the potential for unnecessary violent confrontations.

‘Fear and Quarrels’

Lawmakers recognized this concern centuries ago. According to a New York Times op-ed by Robert J. Spitzer, a professor at the State University of New York-Cortland, in 1686, New Jersey enacted a law against wearing weapons because they induced “great Fear and Quarrels.”

Massachusetts, North Carolina and Virginia passed similar laws in the 18th century. By the 19th century, 37 states joined the list prohibiting concealed weapons.

Now, on the eve of 2019, state lawmakers are promoting the concept that toting a gun and shooting first – asking questions later – will promote peace and harmony in neighborhoods across Ohio.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino.
NOTE: Governor Kasich vetoed the Bill before Christmas.

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Pope Francis calls on people to live a simpler and less materialistic life

Pope Francis condemned the huge divide between the world's rich and poor, saying Jesus's birth in poverty in a stable should make everyone reflect on the meaning of life.

He spoke out while leading a service in St Peter's Basilica in the Vatican for the traditional Christmas Eve Mass.

It is the 82-year-old's sixth Christmas as head of the Roman Catholic Church.

In his homily, Pope Francis said the birth of Christ pointed to a new way to live "not by devouring and hoarding, but by sharing and giving".

According to the BBC, Pope Francis continued: "Let us ask ourselves: Do I really need all these material objects and complicated recipes for living? Can I manage without all these unnecessary extras and live a life of greater simplicity?

"For many people, life's meaning is found in possessing, in having an excess of material objects. An insatiable greed marks all human history, even today, when, paradoxically, a few dine luxuriantly while all too many go without the daily bread needed to survive."

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Kasich vetos stand your ground legislation

Ohio Governor John Kasich vetoed a bill that would have shifted the burden of proof from the defendant to the prosecutor in self-defense cases, reported the Jurist.

Ohio is the only state that requires defendants to prove that their use of force was justified in self-defense. The proposed bill would shift this burden to the prosecution:

A person is allowed to act in self-defense, defense of another, or defense of that person’s residence. If, at the trial of a person who is accused of an offense that involved the person’s use of force against another , there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person’s residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person’s residence, as the case may be.

The bill also included several provisions that would expand the rights of concealed carry permit holders and restrict the ability of local governments to institute gun-control measures. The bill included one gun-control measure that Kasich had previously championed: a “straw man” provision that would make purchasing  a firearm or ammunition under false identification or for another person a third-degree felony.

When the bill passed the House in November, it contained a controversial “stand-your-ground” provision that would have abrogated the “duty to retreat” before using force in self-defense. Kasich had warned that he would not sign the bill with this provision and it was removed from the bill approved by the Senate. Kasich had previously advocated for gun reforms, but he ultimately vetoed the bill, explaining that rather than preventing gun violence, the bill “creat[ed] more opportunities for gun violence to occur.”

The Ohio legislature has scheduled several last-minute sessions before the new year to review this legislation; they would need a three-fifths majority to override Kasich’s veto.

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Schools: More and more guns means more and more victims

Randi Weingarten, the president of the American Federation of Teachers, made an extensive and persuasive argument against arming teachers in an interview with radio host Michael Smerconish, arguing that teachers are not and should not be trained as “sharpshooters,” and that having teachers open fire in such a situation would likely add to the chaos and bloodshed. Weingarten continued that this would create “an arms race in schools,” with the result that “more and more guns” will “create more and more victims.”

“Inside a school building, a school has to be a sanctuary. It has to be a place of learning,” Weingarten said. “What else are we going to do? Are we now going to start wearing bulletproof vests for everybody?”

Greg Sargent of the Washington Post wrote, others have pointed out other problems with the idea, such as the possibility that teachers might leave their guns in unlocked desk drawers, and that schools would have the extra burden of ensuring that teachers are safe to carry guns. Then there’s the possibility that police might show up and find an even more confused, chaotic scene. Education groups strongly oppose the idea, and according to Politico, even some school boards in places where it has been legalized have opposed it.

Republicans such as Sen. Marco Rubio (Fla.) also oppose it. “The notion that my kids are going to school with teachers that are armed with a weapon is not something that, quite frankly, I’m comfortable with,” he said at this week’s CNN town hall on gun violence.

None of this is going to happen. But what’s also troubling about the idea is that it appears deliberately intended to both play on people’s disillusionment with our failure to slow the violence and to further entrench that disillusionment. It’s no accident, as James Hohmann points out, that NRA leader Wayne La Pierre and Trump both used the same language after the shooting — both employed some variation of the idea that we must “harden” our schools.

This is all about manipulating people’s fear for their children’s safety — something that stirs deep terror in all of us. The idea is to basically get us to capitulate: Politicians haven’t protected our children, so forget about pressuring them to get serious about thinking about how to meaningfully regulate guns in the public interest — and instead embrace more guns as the solution. Embrace the arms race. Unfortunately, on large swaths of Americans, it may be working.

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GateHouse: U.S. Senate finally votes to outlaw lynching

Matthew T. Mangino

GateHouse Media

December 21, 2018

This week Congress passed a criminal justice reform bill. The bill has been touted as the most significant change to the federal criminal justice system in decades. The bill, known as the First Step Act, sits on President Donald Trump’s desk awaiting his signature.

Lost in all the hoopla was a little noted piece of legislation that unanimously passed in the Senate this week - making lynching a federal civil rights crime.

The bill was sponsored by Senator Kamala Harris of California. “This is a meaningful moment for this body,” said New Jersey Senator Corey Booker.

The first anti-lynching bill was introduced in Congress 100 years ago. The bill passed the House but was opposed by southern senators and failed repeatedly. According to the Washington Times, the Senate failed to pass an anti-lynching bill nearly 200 times before this week.

Ironically, the presiding officer for the bill’s floor debate was Senator Cindy Hyde-Smith of Mississippi who was maligned last month for making a joke about a public hanging during her reelection campaign. “If he invited me to a public hanging, I’d be on the front row,” Hyde-Smith was heard saying during a campaign event. Hyde-Smith did not immediately apologize for her remarks. That may have been a tactical campaign decision in a state that had the highest number of lynchings in the country from 1882 to 1968.

Lynchings were a tool used to oppress freed slaves after the Civil War. They were often committed by mobs who murdered victims with impunity, often joined by law enforcement, sometimes on the steps of the courthouse.

Lynch mobs, particularly in response to alleged black-on-white crime, were rampant in the south during the late 19th and early-20th centuries. Black men were drug from their homes or jail cells and hung by the neck from the nearest tree or lamppost.

The last lynching in this country occurred in Mobile, Alabama, in 1981. Members of the Ku Klux Klan beat and killed Michael Donald, a young African-American man, and hung his body from a tree. Donald was randomly targeted after the trial of a black man accused of killing a white man in Mobile ended in a mistrial.

One of Donald’s killers, Henry Hayes, was sentenced to death and executed in 1997. The execution of Hayes was the first in Alabama since 1913 for a white-on-black crime. It would be the only execution of a Klan member during the 20th century for the murder of an African-American man.

Senate Majority Leader Mitch McConnell of Kentucky, the state that conducted the last public execution in 1936 attended by an estimate 20,000 people, said when asked about the anti-lynching legislation, “I thought we did that years ago.”

A lynching is an extrajudicial act - an execution carried out by mob rule. The color of an accused and victim’s skin also plays a role in state-sanctioned executions. The death penalty in America has some racial inequities.

People of color have accounted for a disproportionate 43 percent of total executions since 1976 and 55 percent of those currently sitting on death row, according to the Death Penalty Information Center, a non-profit advocacy group. While white victims accounted for approximately one-half of all murder victims, 80 percent of all capital cases involve white victims.

In 2005, the U.S. Senate approved a resolution apologizing for its failure to enact federal anti-lynching legislation. Now 13 years after its apology and nearly 40 years after the last known lynching, Congress has begun to take formal action to end this shameful inaction.

As capital punishment continues to decline in this country will it take the Congress or U.S. Supreme Court another 40 years to acknowledge the arbitrary nature and fallibility of the death penalty?

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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Law and Crime Network: Matthew Mangino on Prosecutor's Responsibility to "Connect the Dots" for the Jury

Watch me on the Law and Crime Network with Judge Ashley Willcott. 
To watch the interview CLICK HERE

Senator wants federal government to collect data on officer involved fatal shootings

Local law enforcement agencies are not required to record and report to the federal government about cases where police officers fatally shoot civilians, reported McClatchy Papers.

Sen. Tim Scott wants to change that. But the South Carolina Republican has struggled to find momentum for legislation that would require such data collection, even after a string of high-profile police shootings over the past several years.

Scott first introduced the “Walter Scott Notification Act” in 2015, inspired by and named for the unarmed black man in North Charleston, South Carolina, who was shot and killed that year by a police officer who later pleaded guilty to federal charges and was sentenced to 20 years in jail. Walter Scott was of no relation to the lawmaker, the only black Republican in the Senate.

The measure would require any state that receives federal law enforcement grants to submit annual reports to the attorney general about instances involving police shootings that resulted in death.

The reports would have to include a long set of data points: The ages and races of the individuals involved, a description of the event, an account of what disciplinary or legal actions followed and whether the victim was armed or had mental health issues. Failure to submit this information could result in a withholding of 10 percent of federal law enforcement grant funding.

Scott was lobbying Tuesday to get a vote on his bill by trying to attach it to a larger overhaul of the criminal justice system that passed that evening. He was ultimately unsuccessful, running up against resistance and limited time in which to change people’s minds.

James Pasco, executive director of the Fraternal Order of Police — the largest police union in the country — said his organization doesn’t support legislation that would, like Scott’s bill, threaten federal funding as an enforcement mechanism.

Pasco said Scott’s bill should also mandate reports of attacks on police officers by civilians alongside reports of attacks by police officers on civilians.

“We are not lobbying for mandatory reporting at this time,” Pasco added, “but if legislation is going to be enacted, we believe it should be mandatory and it should be incumbent upon the cities to report not only allegations of attacks by police officers on citizens, but attacks by citizens on police officers.”

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Comparing Watergate scandal to current investigation 'actually an insult to Nixon'

President Richard M. Nixon’s Watergate scandal has been often mention in the wake of the many investigations of President Donald Trump, wrote Suzanne Garment at NBC.com. She contends the  comparisons are actually an insult to Nixon.

For all the comparisons made between the scandals, much separates them. Nixon’s fall was a classic tragedy. He was a man of substance, with immense political experience and a record of presidential achievement in both domestic politics and foreign policy. His own resentments and paranoia about his perceived enemies propelled him into Watergate.

There’s no such substance with Trump. His presidency has been one piece of tawdriness after another. To see the Trump tragedy, look to the Americans who are so estranged from the country’s institutions that they seem willing to risk blowing them up in order to be heard.

True, Nixon’s enemies would protest violently at the idea of Nixon as a tragic figure, a man of virtue marred by a fatal flaw. They should reconsider.

Prior to its ignominious end, Nixon’s presidency was one of consequential domestic and foreign policy. The former included initiatives — like peaceful school desegregation across the South, broadening civil rights protections to include gender discrimination, lowering the voting age from 21 to 18, creating the Occupational Safety and Health Administration, exponentially expanding the National Endowment for the Arts — that would later lead The New York Times’ Tom Wicker, once targeted on Nixon’s “enemies list,” to call him the “last liberal president.” The foreign policy achievements included not just the historic opening of China but nuclear arms limitations treaties with the Soviet Union and major action in the Middle East.

As with Watergate, the Trump investigation is now approaching the immediate neighborhood of the president. But with Trump, unlike Nixon, there will be little to place in the balance against the investigation’s verdict.

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Flynn sentence delayed, Judge talks treason

Judge Emmet Sullivan has asked for a status hearing in 90 days, after delaying Michael Flynn’s sentencing hearing.

In an extraordinary hearing at the US district court for the District of Columbia, Sullivan expressed “disgust” at Flynn’s behavior, and suggested he was considering sending Flynn to prison.

Sullivan suggested Flynn reconsider his request to be sentenced today and instead continue his cooperation with the special counsel – potentially earning a lesser punishment.

But Sullivan gave a warning to Flynn when he said he did not agree with the sentence given to General David Petraeus. Petraeus, a former head of the CIA, pleaded guilty to mishandling classified information in 2015. He was not sentenced to prison time.

Major driver behind decline of death sentences in Pennsylvania is Philadelphia

In Pennsylvania, where Gov. Tom Wolf is blocking new executions, defendants are still being sent to death row, though the pace of those being condemned to death has slowed.

Since Wolf put a moratorium on the death penalty in 2015, six convicted killers have been sentenced to death, mostly in rural places like York and Pike counties.

A new report from a group that tracks the death penalty in America finds that executions have reached the lowest point since 1991, reported WHYY-FM in Philadelphia.

For the forth year in a row, there have been fewer than 30 executions in the U.S., coming just as public opinion polls show that support for the death penalty is waning.

Texas put more people to death — 13 — than any other state. That was more than half of the nation’s 2018 executions.

Robert Dunham, the executive director of the Death Penalty Information Center, the group that prepared the report, said Wolf’s moratorium had less of an impact on the number of people sitting on death row than another factor: convicted killers in Philadelphia are being sentenced to death far less often than in years past.

In the 1990s, around 10 defendants a year received death warrants after murder convictions. In recent years, the number has been, on average, less than one a year.

It’s a movement not expected to change soon. Philadelphia District Attorney Larry Krasner has vowed never to pursue the death penalty, likening the practice to “lighting money on fire.”

Dunham said the trend toward fewer capital cases in Philadelphia resulting in death sentences reflects patterns nationwide.

“I don’t think the moratorium has had a significant impact in the reduction in the number of capital prosecutions and the number of death sentences. It has had some impact,” Dunham said. “But the major driver of the decline of death sentences in Pennsylvania is Philadelphia.”

This summer, state officials in Harrisburg released a report finding capital punishment in Pennsylvania deeply flawed. It concluded that many of those sitting on death row have intellectual disabilities, even though mental illness is supposed to legally shield a defendant from the death penalty.

The last person to be executed in Pennsylvania was Gary Heidnik, in 1999. The convicted killer tortured, raped, and kidnapped women. His gruesome acts inspired the horror film the Silence of the Lambs.

Records from the Pennsylvania Department of Corrections show that there are 144 convicted murderers on death row. Data from prison officials show that 73 of the death row inmates are black and 55 are white. Two people on death row are Asian and 14 are Hispanic.

In Philadelphia, among the last 46 defendants sentenced to death, 44 have been people of color, according to Dunham.

“Even as the death penalty has been imposed less and less,” he said. “It’s been imposed even more disproportionally among people of color.”

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Death penalty on the decline nationwide

For the fourth year in a row, U.S. courts imposed fewer than 50 new death sentences and states performed fewer than 30 executions in 2018, according to a year-end report from the Death Penalty Information Center.

In fact, the center’s report said support for the death penalty is eroding, reported the ABA Journal. The death-row population is at a 25-year low, according to the report. In 2018, Washington became the 20th state to abolish the penalty. And in October, a Gallup poll found that only 49 percent of Americans think capital punishment is “applied fairly,” the lowest level in the 18 years that Gallup has asked that question.

“Death row in the U.S. has decreased in size every year since 2001, even as the number of executions remains near a generational low,” the report said. “The combination of court decisions reversing convictions or death sentences, deaths from nonexecution causes, and exonerations now consistently outpaces the number of new death sentences imposed.”

Since 1973—the year after the U.S. Supreme Court struck down capital punishment laws in Furman v. Georgia—American courts consistently handed down more than 100 death sentences per year, often more than 200. Use of the sentence peaked in 1996 with 315 sentences but began a sharp decline around 2000 and has been under 50 new sentences since 2015. In 2018, the report said, the number of new death sentences is expected to total 42, once a three-judge panel in Ohio makes its ruling Dec. 28.

The reduction in sentences and executions may stem from a reduction in popular support for the death penalty. In addition to the Gallup poll, the report cites election results in Colorado—where governor-elect Jared Polis had promised to abolish the death penalty—and in three states where efforts to reinstate the death penalty were defeated. Pope Francis, the leader of the Catholic Church, formally condemned executions, calling them “an attack on the inviolability and dignity of the person.”

Also slowing the rate of executions was the controversy over lethal injections. As pharmaceutical companies have started declining to sell drugs to states wanting to use them for executions, states have turned to compounding pharmacies with safety problems—an issue in Missouri and Texas, the report said—or lied to suppliers about the purpose of the drugs. Both Nevada and Nebraska were sued by drug companies that said the states misrepresented their purchases.

And courts have weighed in, too. Most prominently, the Washington Supreme Court abolished the death penalty in the state, in October, saying it was “imposed in an arbitrary and racially biased manner.” In addition, the U.S. Supreme Court stayed the execution of a man who is unable to remember his crimes because of dementia and a series of strokes. The high court heard oral arguments on whether executing such a person violates the Eighth Amendment.

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Mangino on WFMJ-TV21 Weekend Today

Watch my interview with Steve Vesey on WFMJ-TV21 Weekend Today on Sunday, December 16, 2018.  
To watch the interview CLICK HERE

Mangino analyzes Denise Williams trial for Law and Crime Network

Watch my segment on the Denise Williams murder trial on Law and Crime Network.  To watch the interview CLICK HERE

House Democrats push for funding research on gun injuries and deaths

Energized by their midterm victories and a focus on gunshot victims highlighted by a growing chorus of medical professionals, House Democrats say they will push for legislation to fund research on gun injuries and deaths, reported The Hill.

Making gun violence a public health issue is seen as unlikely to cause divisions between liberal and centrist Democrats, some of whom are wary about moving too far to the left ahead of their 2020 reelection bids.

But with a divided Congress starting in January, Democratic leaders will have to tamp down expectations for achieving gun-related legislative goals of any kind since their bills will be landing in a GOP-led Senate.

Most legislation around gun violence was off the table for eight years of Republican rule in the House as GOP leaders sided with the powerful gun lobby against any new firearm restrictions, including federal funding for research.

Now, Democrats are united around making gun violence about public health, with some looking toward background checks as well. 

At a recent press conference, Rep. Eric Swalwell (D-Calif.) said the incoming Democratic majority offers new possibilities. 

“We have an opportunity to pass background checks for every firearm purchase,” said Swalwell, a progressive who is openly considering a 2020 presidential bid. “We have an opportunity to finally study gun violence in America to see what we can do.”

The U.S. has seen a long string of high-profile mass shootings at various venues and locations in recent years: an elementary school in Newtown, Conn.; a nightclub in Orlando, Fla.; a church in Charleston, S.C.; country music festival in Las Vegas; a high school in Parkland, Fla.; and a synagogue in Pittsburgh.

An analysis of government data this week found that gun-related deaths in the U.S. last year reached their highest level in almost four decades, with nearly 40,000 people killed.

As mass shootings have become more common, public opinion has evolved. Many of the newly elected Democrats from conservative districts embraced new restrictions on gun purchases while on the campaign trail without facing the previously feared backlash on Election Day.

Rep. Conor Lamb (D-Pa.) ran on support for universal background checks, and Rep. Charlie Crist (D-Fla.), a member of the moderate Blue Dog Coalition, was a co-sponsor of universal background check legislation this year.

With measures like those failing to make their way through Congress, Democrats are looking to start with appropriating government funds to study gun violence.

Rep. Frank Pallone Jr. (D-N.J.), the likely chairman of the House Energy and Commerce Committee next year, said appropriating funds fort he Centers for Disease Control and Prevention (CDC) to study gun violence will be a priority in the new Congress.

“We have tried repeatedly over the last few years” to get authority and funding for research on gun violence, “and every time we try to do it we were turned down by Republicans,” Pallone said.

Long-standing restrictions have effectively prevented the CDC from conducting any kind of gun violence protection research. The so-called Dickey amendment, inserted into a 1996 government funding bill by the late Rep. Jay Dickey (R-Ark.), has been renewed in subsequent years.

The provision states: "None of the funds made available in this title may be used, in whole or in part, to advocate or promote gun control.”

Although the provision doesn’t explicitly ban research into gun violence, public health advocates and Democrats say there’s been a chilling effect in place for more than 20 years that’s proven difficult to overcome.

When the Dickey Amendment first found its way into law, CDC researchers stopped working on gun-related projects. Congress moved the $2.6 million earmarked for gun violence and prevention studies into a fund to study traumatic brain injuries.

The agency has gone without dedicated funding for firearms research ever since.

Republicans say the CDC has always had the authority to conduct research into gun violence and that the agency has essentially engaged in self-censorship.

In addition to CDC funding, Pallone said the committee might take up legislation sponsored by Rep. Robin Kelly (D-Ill.) that would mandate the U.S. surgeon general submit an annual report to Congress on the effects of gun violence on public health.

“We’re going to authorize the legislation we have not been able to move because of Republicans,” Pallone said at recent a press conference on gun violence. “That will make sure that kind of funding is available through the CDC.”

Rep. Rosa DeLauro (D-Conn.), who is expected to be chairwoman of the Appropriations subcommittee with jurisdiction over the Department of Health and Human Services, said she hopes gun research can be bipartisan.

“If the claim by Republicans and the agency is that they have the authority to do it … then let’s provide them with the resources,” DeLauro told The Hill. “My hope is you can get bipartisan support on some very very basic issues.”

Democrats' larger plans for gun reform legislation are less clear.

Rep. Mark Pocan (D-Wis.) said lawmakers are still “just laying out various bills at this point.” On top of research funding, he said he expects to see legislation regulating bump stocks and other types of policies that have strong public support.

Bump stocks, which modify certain semi-automatic weapons to fire much more rapidly, were used in the October 2017 Las Vegas shooting that left 59 people dead and more than 500 wounded.

House Minority Leader Nancy Pelosi (D-Calif.) said the House will vote on gun violence legislation and has indicated universal background checks will be part of it.

“We will pass common sense gun violence prevention legislation soon, and it will be bipartisan,” Pelosi said at a press conference last week.

Rep. Mike Thompson (D-Calif.), head of the party’s task force to prevent gun violence, said the results of the November midterms speak to a need to act on gun reforms.

Thompson sponsored a background check bill this year and in 2016, and he will likely take the lead on it next year.

“There’s a new majority in the House of Representatives, and we will pass gun violence prevention legislation that will make our communities safer, that will respect the 2nd Amendment and that every American can be proud of,” Thompson said recently.

While gun bills are likely to pass the House, leaders will have to compromise on their priorities with the GOP-controlled Senate.

The midterm elections added to the GOP's Senate majority, and the incoming Republicans are all gun-rights promoters supported heavily by the firearms lobby, posing challenges for Democrats on the research-funding front.

Sen. Roy Blunt (R-Mo.), a member of the Senate Appropriations Committee, said he doesn’t think the Senate would take up a House bill with gun research provisions.

“I can’t imagine that that would be something we’d add specifically to the bill,” Blunt said. “They have the authority to do gun violence research … if they want to.”

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GateHouse: A Florida murder trial, life imitating art

Matthew T. Mangino

GateHouse Media

December 14, 2018

There is a trial going on in Tallahassee, Florida, that has all the twists and turns of a Hollywood movie. Denise Williams is standing trial for plotting to kill her husband Mike Williams.

Brian Winchester murdered Mike Williams - this much is known from dramatic testimony offered by Winchester during the ongoing Williams trial.

This past week, I was able to watch the testimony of Bran Winchester live while doing a segment on Law and Crime Network, a network that covers trials and crime 24/7.

Mike Williams went on a duck hunting trip the evening of Dec. 16, 2000, his wedding anniversary with his high school sweetheart, the Defendant Denise Williams. He told his wife he would return from the hunting trip at a nearby lake in time to leave for their planned anniversary getaway. Williams never came back. His friends and family, including Winchester, and his father, headed to the lake to find him.

Winchester and Mike were best friends. Winchester even sold Mike some of his life insurance, totaling $1.75 million. Winchester said that he and Mike Williams spoke nearly every day.

According to Winchester, the two had something else in common, they both were in love with the same woman - Denise Williams.

Eighteen years after Williams’ disappearance, Winchester, under the protection of immunity, confessed on the witness stand to fatally shooting Williams in the head after pushing him into the water during the hunting trip, then leaving Williams’ boat in the water to mislead investigators.

Winchester didn’t stop there - he testified that Denise was involved in every aspect of planning the killing over a period of 18 months. He even said at one point that Denise was “morally” opposed to divorce - but apparently not murder.

As Winchester calmly testified in detail about the events leading up to Mike Williams’ death, I thought this story - although diabolical - is made for the big screen. Then it struck me - this movie has already been made.

Seventy-five years ago, Paramount Pictures released a film noir classic, “Double Indemnity.” The star-studded cast included Edward G. Robinson, Barbara Stanwyck and Fred MacMurray.

Had Denise Williams and Brian Winchester watched “Double Indemnity” they might have thought twice about their ill-fated plan.

Fred MacMurray played the role of an insurance agent who sold a life insurance policy to Barbara Stanwyck’s husband - sound familiar. Stanwyck and MacMurray’s characters become involved in a romantic relationship.

The two hatched a plan to throw Stanwyck’s husband from a train while on a business trip. They pulled off the murder and tried to cash in on the insurance. However, MacMurray’s boss, Edward G. Robinson, smelled a rat and began to investigate the insurance claim.

The scheme begins to unravel and MacMurray, having been shot in a confrontation with Stanwyck, returns at night to his office mortally wounded and begins to dictate his confession - not unlike Winchester’s testimony in court - into a recorder for Robinson’s character to receive.

Unlike the movie, Winchester and Denise Williams married after Mike’s murder. The marriage fell apart and Winchester kidnapped her in hope of winning her back. He is now serving 20 years in prison for that decision.

Denise Williams’ attorney suggested in his opening statement that Denise had nothing to do with Winchester’s plot to kill her husband. The only person to accuse her of conspiring to kill Mike was Winchester - a confessed killer and convicted kidnapper.

Playwright Oscar Wilde wrote in “The Decay of Lying,” “Life imitates art far more than art imitates life.”

This is real life. A Florida jury will decide if this was a plan between two people to kill another human being for lust and money, or a fiction created by a desperate man to avoid responsibility for killing his friend.

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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Florida carried out the 25th and final execution of 2018

The 25th Execution of 2018

Jose Antonio Jimenez was the 1,490th person executed in the United States since 1976, the 97th person executed in Florida, and the 1,313th person executed by lethal injection.

Florida executed Jimenez by lethal injection on December 13, 2018, 26 years after he viciously stabbed a woman to death during a burglary, reported the Miami Herald.

Jimenez was pronounced dead at 9:48 p.m. The execution, originally set for 6 p.m., was delayed by a last-minute request to the U.S. Supreme Court to stay the execution. The court declined.

The 55-year-old condemned killer declined to make any last statements. The nephew of victim Phyliss Minas watched from the front row of a viewing area, separated from Jimenez by a large, thick glass window.

“Mr. Jimenez has shown no remorse or repentance for his crime,” nephew Alan Partee said in a written statement released by the Florida Department of Corrections after the execution. “His execution will allow closure to a painful memory of the vicious murder ... My family hopes he has made peace with himself and to whatever power he may or may not believe in. We pray for his soul and feel justice has been rightfully served.”

Jimenez was convicted of the 1992 murder of 63-year-old Minas, a clerk at the Miami-Dade criminal courthouse who was home alone when he broke in. He stabbed her eight times, including two fatal thrusts to the heart.

At his 1994 trial, a neighbor testified he saw Jimenez, who lived in the building, climbing down from Minas’ apartment. His fingerprint was also found on the interior of her front door.

His defense attorneys have long insisted that Jimenez was not the killer, and the circumstantial case did not prove he was to blame. A jury, nevertheless, voted 12-0 to sentence him to death.

Jimenez was the fifth killer executed since Florida changed how it administers lethal injections, a process that critics say may be cruel and unusual punishment. In 2017, the state added a drug called etomidate — intended to induce unconsciousness — to the lethal cocktail administered to inmates during execution.

In arguing against the drug, Jimenez’s lawyers cited the last execution of a Florida inmate: Eric Branch, who was put to death in February for the 1993 murder of a college student. According to defense lawyers, Branch screamed and his head, body and legs shook as the drug was administered.

The Florida Supreme Court, however, rejected the claim, saying it had already “fully considered and approved” the current method of execution.

Gov. Rick Scott originally scheduled Jimenez’s execution for July 18, but the Florida Supreme Court issued a stay as his defense lawyers claimed that North Miami hadn’t turned over key police records. The high court rejected the appeal in October, paving the way for Thursday’s execution.

Jimenez, a former house painter with a history of crack-cocaine addiction, was also convicted of the 1990 murder of a woman on Miami Beach. He was sentenced to 17 years in prison for that killing.

Jimenez woke up Thursday about 7:30 a.m., and later met with a Catholic spiritual adviser. “His mood was calm. His mood was in good spirits,” Florida corrections spokeswoman Michelle Glady said at an afternoon press briefing.

His last meal: a Cuban sandwich, bacon, five over-easy eggs, french fries, vanilla-chocolate ice cream and chocolate syrup.

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Texas carries out 24th execution this year nationwide, surpassing last year's total

The 24th Execution of 2018

On December 11, 2018, Alvin Braziel Jr., 43, received lethal injection at the state penitentiary in Huntsville, Texas for the 1993 slaying of 27-year-old Douglas White, who was attacked as he and his wife walked on a jogging trail, reported The New York Post.

Asked by the warden if he had a final statement, Braziel thanks supporters and apologized to the victim’s wife, Lora White.

“I would like to apologize … for her husband dying at my hands,” Braziel said from the death chamber gurney. He also said he loved the White family and a person he named but who was not present, then told the warden he was finished.

As the sedative pentobarbital began taking effect, he took a couple of breaths, gasped, then snored loudly three times. The fourth snore was noticeably less pronounced, and then all movement stopped.

Braziel was pronounced dead 7:19 p.m., nine minutes after the drug began.

Braziel became the 24th inmate put to death this year in the U.S. and the 13th executed in Texas, the nation’s busiest capital punishment state. He will be the last Texas inmate executed this year.

The execution was delayed about an hour after the six-hour window defined by the warrant began at 6 p.m. The Texas Court of Criminal Appeals rejected a last-minute appeal from Braziel’s attorneys.

A brother of Douglas White and two friends attended the execution but declined to speak afterward. Braziel selected no one to witness his death.

In 1993, as Douglas and Lora White walked along a community college jogging trail in the Dallas suburb of Mesquite, Braziel jumped out from behind some bushes with a pistol in his hand and demanded money.

The Whites, who had only been married 10 days, didn’t have any money on them but told Braziel they could get him some and they started walking back to their truck. But Braziel became angry with the couple and ordered them to the ground.

“Doug … was praying, asked God to forgive him and Lora their sins because they both knew that this was it,” said Michael Bradshaw, the lead detective on the case for Mesquite police. “The last thing Doug said before Braziel fired the first round, he said, ‘Please God, don’t let him hurt Lora.'”

Braziel shot White once in the head and once in his heart.

Bradshaw said he believes Braziel would have also shot then-24-year-old Lora White but his gun malfunctioned. Braziel instead took her to bushy area near the trail and sexually assaulted her.

Douglas White’s murder was featured on the television show “America’s Most Wanted” and a $20,000 reward was raised by the chiropractic college he had worked for as an electrician. Bradshaw said more than 40 potential suspects were interrogated and had their blood drawn for testing.

But White’s murder remained unsolved for over seven years.

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The President's "fixer" gets 36 months in prison

Michael Cohen, President Donald Trump’s former personal lawyer, was sentenced to three years in prison and millions in forfeitures, restitution and fines by U.S. District Judge William Pauley III of the Southern District of New York, reported the National Law Journal.

The sentence was handed down after Cohen made a series of guilty pleas. Special Counsel Robert Mueller’s office prosecuted Cohen for lying to Congress, and the Southern District of New York U.S. Attorney’s Office prosecuted him for campaign finance violations, tax fraud and other charges.

Pauley handed down the sentence after Cohen’s emotional personal plea for leniency. As members of Cohen’s family openly wept, Pauley said that while Cohen’s willingness to plead guilty to a host of crimes in Manhattan, as well as to lying to Congress as part of Mueller’s investigation, and his contrition before the court were notable, they “did not wipe the slate clean.”

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McConnell: Senate will vote on FIRST STEP Act.

Senate Majority Leader Mitch McConnell announced that the Senate will vote on the FIRST STEP Act, an expansive criminal justice reform bill, within the month, reported Jurist. The bill passed the House in May of this year and has awaited a Senate vote ever since.

McConnell previously said that the Senate would not vote on the bill this year. The legislation has drawn criticism from some Republicans for being soft on crime, but President Trump endorsed the FIRST STEP Act last month, which increased pressure on McConnell to move ahead with a vote in the Senate. The proposed criminal justice reforms would moderate some of the tough on crime laws of the 1980s and 1990s and enjoy support among Democrats and many Republicans.

The FIRST STEP Act sets out a series of prison and sentencing reforms designed to reduce harsh sentencing, facilitate rehabilitation and combat recidivism. The bill would expand judicial discretion in sentencing, reduce the length of mandatory minimum sentences, make the Fair Sentencing Act of 2010 apply retroactively, expand incentive programs that reward good behavior and early release programs for non-violent, low-risk offenders in the federal prison system. The bill exempts violent offenders, including those convicted of human trafficking and terrorism, from early release programs.

The FIRST STEP Act is one of several bills the Senate will take up in the final weeks of the year before the 116th Congress is sworn in on January 3rd.

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The President aka 'Individual 1' faces felony campaign finance violations

The New York prosecutors' Michael Cohen sentence memo contains the following line, “On approximately June 16, 2015, Individual-1, for whom Cohen worked at the time, began an ultimately successful campaign for President of the United States.”

According to the USA Today, the memo goes on to charge “Individual-1” with conspiracy to commit the same felony campaign finance violations that Cohen pleaded guilty to. There appears to be no question whatsoever that if Justice Department guidelines allowed it, Mueller would have already indicted Trump.

Apparently, though, Mueller was just too cryptic for the president who, after Cohen’s sentencing memo was released, tweeted out, “Totally clears the President. Thank you!”
Now, the tragedy, at least if you are a member of Donald Trump’s inner circle: The net is closing in. The most interesting thing in the sentencing memo was Mueller revealing that the conspiracy to violate campaign finance laws was not just limited to “Individual-1” and Cohen. “Executives” of The Trump Organization (called “the company” in the memo) concocted a scheme to reimburse Cohen for his illegal campaign contributions without revealing that they were campaign-related.

It isn’t clear from the memo who the “executives” are, but there is a very small pool of candidates and most of them are members of the Trump family. One or more of them is almost certain to be indicted.

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Disciplinary Board recommends 1 year suspension for former DA

Former Centre County District Attorney Stacy Parks Miller should be suspended for one year and one day, the Pennsylvania Disciplinary Board has recommended, reported The Legal Intelligencer. The conduct at issue included having ex parte communications with judges and using a fake Facebook account to “snoop” on suspects.

The board’s recommendation, which was filed Thursday, is an increase over the three-month suspension that the hearing committee recommended in the case. The state Supreme Court must make the ultimate decision regarding Parks Miller’s disciplinary case, but if the high court imposes the lengthier suspension, it will add more than a few months, since attorneys suspended for longer than one year need to petition for reinstatement before they can begin practicing again.

Parks Miller faces charges stemming from ex parte communications she had in seven matters, most of which involved retired Centre County Judge Bradley Lunsford, as well as charges stemming from the creation of a fictitious Facebook account, which made friend requests to defendants and friended the pages of several establishments suspected of selling bath salts.

According to the disciplinary board’s 45-page recommendation, the Facebook issue raised a novel question in Pennsylvania of whether a prosecutor violates disciplinary rules by “engaging in a covert activity through the use of social media.”

Although the hearing committee had determined that the conduct was not a violation but only showed “lack of care” by Parks Miller, the disciplinary board said the conduct rose to the level of a violation.

“[Parks Miller] knowingly created a fake social media persona, provided access to a fake Facebook page to her staff, and indicated that the page should be used to ‘masquerade’ and ‘snoop’ around on Facebook,” the filing said. “The Facebook page created by [Parks Miller] and disseminated to her staff was fake, and constituted fraudulent and deceptive conduct.

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President looks to bring back George H.W. Bush era attorney general

President Trump will nominate William Barr, the George H.W. Bush-era leader of the Justice Department who was known for his hardline approach to drug crime, as his next attorney general, reported The Crime Report. Speaking with reporters as he prepared to leave Washington for a conference in Missouri, he said Barr was his “first choice from day one,” though he acknowledged he didn’t know him until recently, reports Fox News.

“I think he will serve with great distinction,” Trump said.

If he’s confirmed, Barr would replace Matthew Whitaker, the former Jeff Sessions chief of staff who took over as acting attorney general last month.

Barr, 68, is a well-respected Republican lawyer who served as attorney general from 1991 to 1993 under President George H.W. Bush. Although he is regarded as a bipartisan figure, given the political fights enveloping the Justice Department, any attorney general nominee is likely to face tough questions at a Senate confirmation hearing, the Washington Post reports.

The president has repeatedly accused the department of launching a biased investigation into his campaign and claimed that special counsel Robert Mueller is conducting a “witch hunt” targeting him and his aides.

Democrats want assurances the department’s next leader will resist political pressure from the White House; Republicans want assurances the department will operate investigations in an evenhanded fashion toward members of both parties. Barr’s past statements about the Russia probe, in which he has questioned the political tilt of Mueller’s team, could give some Democrats fodder to attack Barr’s nomination.

Republican operatives who support Barr noted he once worked alongside Mueller in the Justice Department and said his track record should ease any Democratic concerns that the department would see its independence eroded. One source said Barr has a bluntness that is likely to resonate with the president.

“The president is very, very focused on [a candidate] looking the part and having credentials consistent with the part,” the person said.

Barr’s daughter, Mary Daly, is a senior Justice Department official overseeing the agency’s efforts against opioid abuse and addiction. During Barr’s earlier stint as AG, DOJ issued a “Case for More Incarceration.”

In fact, in some quarters he is considered the “architect” of mass incarceration, Vox reports.

Civil rights advocates, for instance,  note that as deputy attorney general from 1990 to 1991, and as attorney general (1991-1993), he pushed for and helped implement punitive criminal justice policies, including a 1990 crime law that among other things escalated the war on drugs.

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GateHouse: SCOTUS to decide Double Jeopardy issue in shadow of pardon debate

Matthew T. Mangino

GateHouse Media

December 7, 2018

Gamble was 19-years-old in 2008 when he was convicted of robbery in Alabama. Robbery is a felony in Alabama and according to state law, and federal law, a felon is not permitted to possess a firearm.

Fast-forward seven years and Gamble is pulled over for a traffic violation. Police in Alabama find a handgun and charge him as a “felon-in-possession” at the same time federal prosecutors charge Gamble under a similar federal law.

Gamble pleaded guilty in state court in Alabama and was sentenced to one year in prison. Subsequently, a federal court sentenced him to 46 months in prison for the same crime. Gamble made a constitutional challenge to the federal charge arguing it violated the Double Jeopardy Clause.

The Fifth Amendment to the U.S. Constitution states that no person can “be subject for the same offense to be twice put in jeopardy of life or limb,” prohibiting multiple trials for the same offense.

Gamble’s claim was dismissed by a district court, and his conviction affirmed by the 11th U.S. Circuit Court of Appeals.

In its decision, the 11th Circuit found that the “Supreme Court has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns.”

The “separate sovereigns” doctrine allows both federal and state prosecutors to charge an individual under the theory that the state and federal governments are separate government entities and being charged separately with state and federal crimes is not Double Jeopardy.

Gamble took his case to the U.S. Supreme Court, which agreed to hear his case. Supreme Court justices do not hear every case that is brought to them. A petitioner must get at least four justices to vote to bring the case before the High Court.

The question is can he get five votes to overturn the so called separate sovereigns doctrine? Gamble’s attorneys got a chance on Thursday to make their case, in front of nine Supreme Court justices.

Gamble’s lawyers argued that “Permitting consecutive prosecutions for the same offense simply because different sovereigns initiate them ‘hardly serves’ the deeply rooted principles of finality and fairness the Clause was designed to protect.”

Attorneys for Gamble argued that the founder’s intentions for the Double Jeopardy Clause and the Supreme Court’s interpretation are incompatible. Essentially, the founding fathers did not intend to permit a person to be tried twice for the same offense in any court and the Supreme Court, through the years, failed to fully appreciate the founders’ intent.

Some justices made it clear that those decisions by prior courts are the very reasons not to overturn the separate sovereigns doctrine. Justice Elena Kagan raised the issue, noting that the separate sovereign’s doctrine is 170 years old and 30 justices over the years have supported it. She suggested that stare decisis, the adherence to prior rulings, is at bottom a doctrine of “humility;” we don’t want to overrule an earlier decision or rule “just because we think we can do it better.”

The case has garnered a lot of interest as a result of Special Counsel Robert Mueller’s investigation of Russian meddling in the 2016 presidential election. Although Mueller’s name was never mentioned during the argument the implication is that the Court’s decision could have an impact on how much protection a presidential pardon provides.

Although the president’s power to pardon is enormous under Article II, Section 2 of the U.S. Constitution, he can only provide a pardon for federal indictments or convictions.

For instance, the president could pardon Paul Manafort with regard to his federal conviction, but a state court, which would be out of the reach of a presidential pardon, could pursue the very same charges for which Manafort, or others, were already tried, convicted and pardoned in federal court.

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

Tennessee sends second inmate to the electric chair in about a month

The 23rd Execution in 2018

A Tennessee inmate became the second person to die in the state's electric chair in just over a month on December 6, 2018, nearly two decades after Tennessee adopted lethal injection as its preferred method of execution, reported The Associated Press.

David Earl Miller, 61, was pronounced dead at 7:25 p.m. at a Nashville maximum-security prison.

Miller was convicted of killing 23-year-old Lee Standifer in 1981 in Knoxville and had been on death row for 36 years, the longest of any inmate in Tennessee.

At 7:12 p.m. and after Miller had been strapped into the chair, Tennessee Department of Correction officials raised a blind that had covered the windows to a witness room. Miller looked straight ahead, his eyes seemingly unfocused and his face expressionless.

Warden Tony Mays asked Miller if he had any last words. He spoke but his words were unintelligible. Mays asked him to repeat himself, and his words were still difficult to understand, but his attorney, Stephen Kissinger, said he understood them to be, "Beats being on death row."

Officers then placed a large damp sponge on Miller's shaved head to help conduct the current before strapping a cap to his head. Water ran down Miller's face and was toweled off by an officer. Miller looked down and did not look back up before officers placed a shroud over his face.

After someone connected an electrical cable to the chair, Miller's body stiffened as the first jolt of current hit him. His body then relaxed before a second jolt came less than a minute later. Again, Miller's body stiffened and then relaxed. The blinds were pulled down and an announcement of the time of death came over an intercom.

No witnesses from either Miller's family or Standifer's were present for the execution, but Department of Correction spokeswoman Neysa Taylor read a brief statement from a woman from Ohio who did not want her name given.

Taylor read, "After a long line of victims he has left, it is time to be done. It is time for him to pay for what he has done to Lee."

Miller had been on a date with Standifer, who had mental disabilities, and the two were seen together around town the evening of May 20, 1981. The young woman's body was found beaten and stabbed the next day in the yard of the home where Miller had been living.

Gov. Bill Haslam refused Miller's request to commute his sentence to life in prison. Miller's petition for clemency said Miller had been physically abused as a child by his stepfather and had been physically and sexually abused by his mother. The petition argued that evidence of the trauma and mental illness it caused should have been presented to a jury.

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President could bring clemency process in house (White House that is)

President Donald Trump could create a clemency commission in the White House, suggests the Washington Examiner.

The commission would supplement or replace the Justice Department’s opaque Office of the Pardon Attorney, which critics say is inherently biased in favor of prosecutors.

A new clemency commission can be created without Congress. The idea has support from both left-wing and conservative advocates, who note Trump’s repeated musing about the unfairness of the criminal justice system, including a remark in October that “a lot of people” are in prison for “no reason” and that he was “actively looking” to address that.

Trump has nearly unchecked power to pardon or release federal inmates — an authority he’s already used in unconventional ways, breaking with stingy recent predecessors to give nine early-term pardons or commutations, including the first pardons to currently incarcerated inmates since the 1800s.

“The reason you haven’t seen anything done yet is that there are only 24 hours in the day, and this requires some thought,” said Heritage Foundation scholar Paul Larkin, who advocates a clemency review process headed by the vice president.

Larkin attended a September meeting at the White House hosted by Jared Kushner and Ivanka Trump. Kim Kardashian West joined a dozen reformers around a Roosevelt Room table, where guests discussed commission ideas.

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