Cuccinelli claims Jewish hate crime by American citizen the result of illegal immigration

Acting deputy secretary of the Department of Homeland Security and former attorney general of Virginia Ken Cuccinelli claimed that a U.S. citizen accused of stabbing five Hasidic Jews at a Hanukkah celebration in New York lacked “American values” because the man’s father was an undocumented immigrant who gained legal status more than three decades ago, reported the Huffington Post. 

“The attacker is the US Citizen son of an illegal alien who got amnesty under the 1986 amnesty law for illegal immigrants,” Cuccinelli, acting deputy secretary at DHS, said Monday morning in a now-deleted tweet. “Apparently, American values did not take hold among this entire family, at least this one violent, and apparently bigoted, son.”

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Suspect in Pittsburgh synagogue shooting challenges death penalty

Lawyers for the suspect in the synagogue shooting that killed 11 people in Pittsburgh have challenged his potential death sentence as unconstitutional, reported The Associated Press.

Lawyers for Robert Bowers argued in court papers filed this week that capital punishment violates the Fifth Amendment’s due process clause and the Eighth Amendment’s ban on cruel and unusual punishment.

They also said the practice of carrying out federal executions in state prisons violates a Tenth Amendment protection that says states can’t be made to enforce federal laws, the Pittsburgh Tribune-Review reported Friday.

Defense lawyer Judy Clarke has made similar arguments in other high-profile capital cases. Her clients have included Boston Marathon bomber Dzhokhar Tasarnaev, who is appealing his 2015 death sentence, and “Unabomber” Ted Kaczynski, who entered a plea agreement that spared him the death penalty.

In court filings, Clarke said that she has tried to negotiate a life sentence for Bowers but that prosecutors have rebuffed her.

Bowers is charged with killing 11 congregants during a Shabbat service at the Tree of Life synagogue on Oct. 27, 2018, and injuring six others, including four police officers.

He has pleaded not guilty to 63 federal counts, 22 of which carry the death penalty. His defense team also includes public defenders Michael Novara and Elisa Long.

No trial date has been set.

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GateHouse: Bulging local jails impact criminal justice system

Matthew T. Mangino

GateHouse Media

December 27, 2019

Every year, about 11 million people funnel through local municipal and county jails. According to the Prison Policy Initiative, between 1970 and 2017, the number of people incarcerated in the nation’s 3,000-plus local jails ballooned - from 150,000 to about 720,000 per day.

Most people in jail have not been convicted of the charges they are facing, and many are being detained in civil matters, such as people incarcerated pretrial for immigration cases or those incarcerated due to unpaid child support or fines and costs.

The millions of people who go to jail each year are there generally for brief periods of time. Most released in days or hours after their arrest, while others are held for months or even years - often because they can’t afford to make bail, are unable to get a speedy trial or can’t gain timely access to a public defender. Only about a third of the 720,000 people in jails on a given day have been convicted and are serving short sentences, probation violations or minor misdemeanor convictions.

A recent Vera Institute report found that the rise of pretrial detention rates have been particularly drastic in rural counties, up 436% since 1970. That means for every 100,000 residents there are 200 people stuck in rural jails at some stage of criminal prosecution.

A report released this past summer by the Sentencing Project found that the number of women incarcerated in America’s jails and prisons increased by more than 700% from 26,378 in 1980 to 213,722 in 2016. Nearly half of those women are in local jails.

Prisons differ from jails in one fundamental way, jails are locally controlled - prisons are run by state governments and the federal government.

State prisons have actually cut their prison populations by directing state inmates to local jails. For example, in Pennsylvania, where, at one time, parole violators were returned to prison and stayed there until they were re-paroled, lawmakers amended the law to permit a state parole violator to be taken off the street and placed in a county jail and released automatically after six months. At the time, this was perceived as a “win-win,” the number of people in state prison declined and local jails were paid-for housing state inmates.

There are other important distinctions between jails and prison - resources and the duration of an offender’s incarceration.

State and federal prisons often provide meaningful treatment programs. The resources for staff and services to treat drug and alcohol addiction, mental health treatment and cognitive programming can help offenders transition to a crime-free lifestyle. Local jails typically don’t have the resources or the time to implement long term programming. People are in an out of local jails all the time and as a result comprehensive programming is often not an option.

While “tough on crime” attitudes have resulted in increasing numbers of people convicted of minor crimes, what can’t be overlooked are innovative tactics such as aggressive policing used to combat pockets of violent crime. The training has ultimately led to more police traffic stops, more pedestrians “stopped and frisked” and more people charged with minor offenses.

Local jails warehouse inmates. Prisons try to rehabilitate inmates. There is the disconnect - as jail population rises, prison population declines. In turn, help for inmates disappears and people who walk in and out of revolving jail doors are no different when they leave as they were when they entered.

Local jails impact the entire criminal justice system and millions of people each year. To control soaring jail population, jail policy should focus on people who are detained pretrial - legally innocent, until proven guilty. Law enforcement policy should zero-in on how the criminal justice system responds to low-level offenses; and local policymakers should rethink using local jails as revenue producers.

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 at @MatthewTMangino.

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Illinois is 11th state to legalize recreational use of marijuana

Illinois Governor J.B. Pritzker signed The Cannabis Regulation and Tax Act on Tuesday, making Illinois the 11th state to legalize the recreational use of marijuana, reported Jurist. As of January 1, 2020, any adult over 21 years of age will be able to legally purchase cannabis for personal use from the licensed dispensaries across Illinois.

The law places limits on its possession and uses, including the max possession of 30 grams of the cannabis flower and no more than 5 grams of cannabis concentrate.

The Bill was introduced early in 2019 by Illinois state Rep. Michelle Mussman and ended up having 31 sponsors by the time the 101st General Assembly passed the bill. The bill passed the house nearly six months after it was introduced, officially becoming a public act on June 25, 2019.

Illinois is the first state to pass tax-and-regulate marijuana legislation through a legislative act rather than a voter-based ballot initiative. It also provides for expungements of prior cannabis possession convictions of 30 grams or less.

The most unique component of this bill is the ‘social equity’ component. A percentage of the tax revenue will go towards funding for minority neighborhoods hit hardest by the prosecution of marijuana possession.  The funding is meant to defray some of the start-up costs associated with entering the legal marijuana industry.

Illinois expects the new legal marijuana market will generate $50 to $500 million in the first year in additional tax revenues.

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A thought for Christmas day

On this Christmas day let us remember the words of Robert F. Kennedy as he spoke in Indianapolis on the evening of Martin Luther King’s assassination. "What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence or lawlessness; but love and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or they be black.”

Merry Christmas!

DUI prevention tool causes distracted driving

While ignition interlock devices have prevented thousands of drunken-driving crashes, they have also caused them by distracting drivers, The New York Times reports. Randomly timed checks, known as rolling retests, can cause even sober drivers to crash, a distracted-driving threat that has drawn little scrutiny. A review of accident reports and lawsuits turned up dozens of examples of collisions in which the devices played a role.

According to The Crime Report, nearly 350,000 people in the United States have interlocks, according to the latest estimate in an annual industry report, up from 133,000 a decade earlier. Thirty-four states — including, this month, New Jersey — require people with drunken-driving convictions to install the devices. Other states are considering similar laws and two United States senators are pushing legislation that would require all new cars to include a version of the technology by 2024. The National Highway Traffic Safety Administration said it had not studied the issue of distracted driving and interlocks. States that mandate them have not, either.

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'Civility' in American politics is code for capitulation

Dahlia Lithwick wrote in Slate, “We used to talk about how to talk to each other. Now, when someone invokes “civility,” they really just want you to shut up.”

Civility, like free speech generally, is now something we increasingly demand for ourselves and refuse to afford others. Civility means that we get to wish others a merry Christmas whether or not others celebrate it. Civility means that you can refuse service to an LGBT patron of your business, and that she should be politely accepting of that choice. Civility isn’t about bridging the divide so much as it is about being treated civilly regardless of our words or actions.

As Adam Serwer summarized it in this month’s Atlantic: “There are two definitions of civility. The first is not being an asshole. The second is ‘I can do what I want and you can shut up.’ The latter definition currently dominates American political discourse.”

In that vein, Joe Biden caused a stir in June when he thought back fondly to a more civil era in politics: Recalling his debates with avowed segregationists like Mississippi’s James Eastland, Biden lamented, “At least there was some civility. We got things done. We didn’t agree on much of anything. We got things done. We got it finished. But today you look at the other side and you’re the enemy. Not the opposition, the enemy. We don’t talk to each other anymore.”

The problem of course is that “getting things done” by meeting unabashed racists halfway no longer feels like a win-win, so much as capitulation. Serwer made this point eloquently: “The true threat to America is not an excess of vitriol, but that elites will come together in a consensus that cripples democracy and acquiesces to the dictatorship of a shrinking number of Americans who treat this nation as their exclusive birthright because of their race and religion. This is the false peace of dominance, not the true peace of justice, (emphasis added). Until Americans’ current dispute over the nature of our republic is settled in favor of the latter, the dispute must continue.” Lithwick writes, "In other words, there will be no civility if it means powerful men colluding to harm the powerless—nor should there be."

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Do you have a smart phone, you're being followed

The New York Times data review didn’t come from a telecom or giant tech company, nor did it come from a governmental surveillance operation. It originated from a location data company, one of dozens quietly collecting precise movements using software slipped onto mobile phone apps. You’ve probably never heard of most of the companies — and yet to anyone who has access to this data, your life is an open book. They can see the places you go every moment of the day, whom you meet with or spend the night with, where you pray, whether you visit a methadone clinic, a psychiatrist’s office or a massage parlor.

The Times and other news organizations have reported on smartphone tracking in the past. But never with a data set so large. Even still, this file represents just a small slice of what’s collected and sold every day by the location tracking industry — surveillance so omnipresent in our digital lives that it now seems impossible for anyone to avoid.

It doesn’t take much imagination to conjure the powers such always-on surveillance can provide an authoritarian regime like China’s. Within America’s own representative democracy, citizens would surely rise up in outrage if the government attempted to mandate that every person above the age of 12 carry a tracking device that revealed their location 24 hours a day. Yet, in the decade since Apple’s App Store was created, Americans have, app by app, consented to just such a system run by private companies. Now, as the decade ends, tens of millions of Americans, including many children, find themselves carrying spies in their pockets during the day and leaving them beside their beds at night — even though the corporations that control their data are far less accountable than the government would be.

 “The seduction of these consumer products is so powerful that it blinds us to the possibility that there is another way to get the benefits of the technology without the invasion of privacy. But there is,” said William Staples, founding director of the Surveillance Studies Research Center at the University of Kansas. “All the companies collecting this location information act as what I have called Tiny Brothers, using a variety of data sponges to engage in everyday surveillance.”

In this and subsequent articles we’ll reveal what we’ve found and why it has so shaken us. We’ll ask you to consider the national security risks the existence of this kind of data creates and the specter of what such precise, always-on human tracking might mean in the hands of corporations and the government. We’ll also look at legal and ethical justifications that companies rely on to collect our precise locations and the deceptive techniques they use to lull us into sharing it.

Today, it’s perfectly legal to collect and sell all this information. In the United States, as in most of the world, no federal law limits what has become a vast and lucrative trade in human tracking. Only internal company policies and the decency of individual employees prevent those with access to the data from, say, stalking an estranged spouse or selling the evening commute of an intelligence officer to a hostile foreign power.

Companies say the data is shared only with vetted partners. As a society, we’re choosing simply to take their word for that, displaying a blithe faith in corporate beneficence that we don’t extend to far less intrusive yet more heavily regulated industries. Even if these companies are acting with the soundest moral code imaginable, there’s ultimately no foolproof way they can secure the data from falling into the hands of a foreign security service. Closer to home, on a smaller yet no less troubling scale, there are often few protections to stop an individual analyst with access to such data from tracking an ex-lover or a victim of abuse.

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GateHouse: A year-end review of the death penalty

Matthew T. Mangino

GateHouse Media

December 20, 2019

As the year comes to a close, it is abundantly clear that the death penalty has fallen out of favor in America’s criminal justice system. This year will end with the second fewest executions since 1991.

With approximately 2,700 men and women on death row, the execution rate for 2019 was about .008 - less than one percent.

There are fewer prosecutors seeking the death penalty, fewer juries imposing the death penalty and fewer states carrying out the death penalty. In fact, of the 22 executions this year, nine were in Texas and only six other states were responsible for the rest.

The death penalty has been spiraling to unprecedented lows, as states conducted fewer than 30 executions and imposed fewer than 50 new death sentences for the fifth year in a row. There were only 34 new death sentences in 2019.

In 2005, the U.S. Supreme Court banned the execution of juveniles. In making the decision, the Court cited “evolving standards of decency.” In the analysis of evolving standards of decency the court considers the action of state lawmakers to establish a national consensus. When the case was argued, 30 states had banned the execution of juveniles.

This year, New Hampshire became the 21st state to abolish the death penalty and California joined Pennsylvania, Oregon and Colorado in imposing moratoriums on executions. In addition, more than a dozen Ohio inmates received reprieves as a result of lethal injection concerns.

As a result, according to the Death Penalty Information Center, half of all U.S. states have abolished the death penalty or currently prohibit executions. In fact, 32 states have either abolished the death penalty or have not carried out an execution in more than a decade.

Is the death penalty inching toward a national consensus opposing executions?

Here is some perspective on the efficiency of today’s death penalty. Since capital punishment was reinstated in California in 1978, 13 condemned inmates have been executed. During those 41 years, 82 death row inmates died from natural causes, 27 have committed suicide and 14 died from other causes.

Just this past week, 79-year-old condemned serial killer Lawrence Bittaker died of natural causes awaiting execution on death row at San Quentin. He had been waiting 40 years. He was convicted in California of kidnapping, raping, torturing and killing five teenage girls in 1979.

According to The Mercury-News, Bittaker outlived half the jurors in his case, the judge, the lead detective, an assistant prosecutor and 126 fellow death row inmates.

The absurdity of the death penalty doesn’t end there. In Pennsylvania, where the governor declared a “moratorium” on the death penalty, only three men have been executed in over 40 years. There are 154 men and women on Pennsylvania’s death row with little or no chance of being executed.

This year, U.S. Attorney General William Barr decided that he would schedule five federal prisoners for execution. The Federal government has executed only three men in the modern era of the death penalty and has not executed an inmate since 2003. Needless to say, the rush to resume executions was halted by the courts.

Some might say the death penalty is broken and should be abolished. In 2012, I wrote “The Executioner’s Toll, 2010” a book examining the history of the death penalty through the 46 executions carried out in 2010. One of condemned inmates I wrote about was John David Duty of Oklahoma. He was the last man executed in 2010.

Duty was serving a life-sentence for robbery, rape and kidnapping. He wanted the state to put him to death, so he murdered his cellmate and then sat down and wrote a letter to his cellmate’s mother taunting her about the killing. He then wrote the county prosecutor and made this ominous threat, “execute me or I’ll kill again.”

The current state of the death penalty may be absurd, but what do we do with the John David Dutys of the world?
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Do 'revenge porn' laws violate the First Amendment?

A defendant  charged under Illinois' “revenge porn” law argued that the law was an unconstitutional restriction on her freedom of speech, reported the ABA Journal. The trial court agreed, holding that the law doesn’t serve a compelling government interest because the harms of revenge porn are speculative.

As a result, the state of Illinois went before its state supreme court last May, defending the statute at oral argument. Around the same time, Jordan Bartlett Jones, was making a similar First Amendment argument in the Texas Court of Criminal Appeals. Appeals courts in Wisconsin and Vermont rejected First Amendment challenges to revenge porn statutes in 2018—but in Texas and Illinois, the lower courts have given the First Amendment claims a foothold.

Decisions striking down those laws could threaten revenge porn laws in all 46 states (plus Washington, D.C., and Guam) that have them. But Mary Anne Franks, president, legislative and tech policy director of the anti-revenge-porn group, the Cyber Civil Rights Initiative, says that could be for the best.

“Sometimes these challenges are legitimate, in the sense that it may be good for the legislature to take a pretty hard look at whether or not they’ve crafted the best law possible,” says Franks, who teaches criminal and First Amendment law at the University of Miami.

Laws like the ones being challenged, started springing up in early 2010, when it started becoming common to see intimate images shared without the subject’s consent. Some images become public via hacking or extortion, but often someone puts them online after a breakup in order to hurt the person depicted. In those cases, the poster may send the images directly to the victim’s employer, family and friends or to a for-profit revenge porn website.

However, it got harder to do that with impunity starting around 2013, when states began passing laws outlawing revenge porn. Four states: Wyoming, Mississippi, South Carolina and Massachusetts still don’t have specific laws outlawing revenge porn. New York and Nebraska are the most recent states to pass bills outlawing the offense.

There’s little cohesion among state revenge porn laws. In 2016, U.S. Rep. Jackie Speier, D-Calif., introduced a bill that would make revenge porn a federal crime, but it didn’t pass. In 2017, Sen. Kamala Harris, D-Calif., and two other senators introduced a bill that would criminalize the distribution of revenge porn. Speier and U.S. Rep. John Katko, R-N.Y., introduced a third bill in May, the SHIELD Act, which is pending with the judiciary committee.

The resignation of former freshman U.S. Rep. Katie Hill, D-Calif., in October, after revealing pictures of her and a campaign staffer were made public online, sparked renewed public interest in revenge porn. Generally, recent pushes to regulate revenge porn coincide with growing awareness around sexual harassment and abuse as well as discussions around the government’s role in regulating social media.

It’s tough to say how many people have been prosecuted, but Franks says only a few have brought the sort of First Amendment challenge at issue in the four appellate cases. A fifth First Amendment challenge, filed by the ACLU of Arizona (Antigone Books et al v. Horne), led a federal district court to strike down that state’s first revenge porn law in 2015.

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Gov. Wolf signs criminal justice reform package

After three years of bipartisan compromise, Pennsylvania Gov. Tom Wolf signed into law a pair of bills that aim to cut incarceration costs and reinvest savings in county probation offices, reported the Pennsylvania Capital-Star.

The bills, known collectively as Justice Reinvestment Initiative 2, are expected to reduce state prison populations by 600 inmates over the next five years, saving taxpayers an estimated $48 million in corrections costs. 

“These important pieces of legislation will cut red tape, reduce bureaucracy and result in savings of time and money,” Wolf said at a ceremony Wednesday, where he was joined by a bipartisan cadre of lawmakers from the House and Senate. “We will reinvest those savings into criminal justice programs that reduce recidivism, increase public safety, and better serve victims of crime.”

One bill sponsored by Sen. Tom Killion, R-Delaware, amends state sentencing guidelines to make it easier for people with addiction to enter State Intermediate Punishment. The diversionary sentencing program lets people convicted of non-violent crimes that were motivated by drug or alcohol addiction serve the majority of their sentences in treatment centers and in their home communities.

Diana Woodside, policy director for the Department of Corrections, told the committee that the program is “extremely underused” but has “extraordinary outcomes.”

Between 2005 and 2006, more than 25,000 inmates in Pennsylvania “appeared eligible” for state intermediate punishment, according to a Corrections department report. But only about a quarter of all them were referred for a program evaluation.

As a result, fewer than 5,600 inmates enrolled in the program from 2005 to 2016. Each participant saved Pennsylvania more than $33,000 in corrections costs. And its graduates had lower re-arrest rates than comparable offenders in the general prison population.

Offenders sentenced to intermediate punishment serve a maximum of 24 months, seven of which are spent in prison. They must also spend time in out-patient treatment and community therapeutic centers before being released into the community, where they’re monitored by Department of Corrections staff.

Under current policy, an inmate can only enter the program if they’re referred by a judge prior to sentencing and pass a Corrections evaluation. Once that evaluation in complete, they’re referred back to a judge for sentencing.

Killion’s proposal would streamline that process. It would require sentencing judges to evaluate all offenders to see if they meet the statutory requirements for the state intermediate punishment program.

Judges would have to note the offender’s eligibility status on their sentencing orders, and all who appear eligible will undergo an enrollment evaluation once they’re in a Corrections facility. Offenders who pass the evaluation will be admitted to the intermediate punishment program as they begin to serve out their sentence.

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Mississippi man tried 6 times for same murders released on bail

Curtis Flowers was was tried six times for the 1996 murders of four people in the Tardy Furniture store in Winona, Mississippi. He was released  on bail this week after 23 years of incarceration. Flowers was the recent subject of a Supreme Court case regarding racial bias in jury selection.

While the Supreme Court overturned his latest conviction and death sentence, grand jury indictments for four charges of capital murder remain in place, reported Brianne Bell of Jurist. An anonymous donor posted 10 percent of $250,000 bail required. Flowers will be electronically home monitored and remain in his home, with an exception for medical treatment.

In the motion to set reasonable bail, Flowers said that he has endured two hung juries and the Mississippi Constitution requires bail. Flowers has filed a motion to dismiss his case and a request for the removal of Doug Evans, the recently re-elected District Attorney.

The NAACP has filed a lawsuit against Evans to enjoin him and his office from using peremptory strikes against prospective black jurors based on their race.

Flowers’ plight was brought to national attention as the subject of season two of the In the Dark podcast.

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750 historians sign statement supporting impeachment of President Trump

Sean Wilentz, a professor of American history at Princeton, working with Brenda Wineapple,

the author of a recent book on President Andrew Johnson’s impeachment, drafted a statement regarding the impeachment of President Trump and sent it to a long list of historian.

The resulting text — which they shared for the first time with this newsletter tonight — now has over 750 signatures from historians across the nation, including some of the field’s most well-known figures: Robert Caro, Ken Burns and Ron Chernow, reported the New York Times, Impeachment Briefing.

“President Trump’s numerous and flagrant abuses of power are precisely what the Framers had in mind as grounds for impeaching and removing a president,” the statement says. “The President’s offenses, including his dereliction in protecting the integrity of the 2020 election from Russian disinformation and renewed interference, arouse once again the Framers’ most profound fears that powerful members of government would become, in Hamilton’s words, ‘the mercenary instruments of foreign corruption.’”

The statement “is a form that historians and others have used over the decades to express collective opinions. It’s a kind of petition to the public,” Mr. Wilentz said. “We have a civic role, as keepers in some ways of the nation’s heritage, as people who have devoted our lives to studying this country.”

Ms. Wineapple said the text is also a reminder of how much a scholar can influence how others think about current events.

“If a historian is an educator, that person walks into a classroom and faces questions from young people. If a historian is a writer, one is talking not just to other like-minded historians, but to the public,” she said.

The idea has company: Over 850 legal scholars signed a letter earlier this month arguing that the president had engaged in “impeachable conduct.” But Mr. Wilentz said that a historian has a role at this stage of impeachment that no other figure in American life does.

“American culture is not a terribly historical culture,” he said. “We’re much more forward-looking than backward-looking."

The attention to a meaningful record, Mr. Wilentz said, “becomes deeply important when you come to this kind of crisis. That’s something that only historians can provide.” To read more CLICK HERE

PA AG Josh Shapiro on list of 15 potential Democrat vice-presidents in 2020

The Washington Post published a list of 15 potential vice-presidential nominees which include Pennsylvania's first-term Attorney General Josh Shapiro. He took office in 2017, and among other initiatives chose to move forward with the investigation of sexual abuse among Catholic priests.
In August 2018, he released the results of an extensive grand jury report. The report alleged the sexual abuse of more than 1,000 children at the hands of over 300 priests. His report prompted similar investigations in other states, an inquiry by the federal government, and proposed legislation to change the statute of limitations in Pennsylvania.
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PLW: Password Ruling and Technology: Court Looks to Protect the Innocent

Matthew T. Mangino

The Legal Intelligencer

December 12, 2019

Last month, the Pennsylvania Supreme Court ruled that it is a violation of the Fifth Amendment’s protection against self-incrimination to compel a defendant to disclose a password to allow police access to a “lawfully seized, but encrypted, computer.”

In 2015, the attorney general’s office was conducting an investigation into the use and distribution of child pornography. The attorney general sought a search warrant for Joseph J. Davis’ home after his IP address was linked to child pornography videos and a file-sharing network. Davis admitted to watching child pornography, and law enforcement officials lawfully seized his computer. However, he refused to provide the 64-character password to his computer.

According to the court record, the entire hard drive of the computer was encrypted and “there was no data that could be read without opening the TrueCrypt volume.”

Agents could only confirm that there was “Windows on the computer and the TrueCrypt,” and no knowledge of any specific files other than the operating system files.

Davis was charged with two counts of disseminating child pornography in violation of 18 Pa.C.S. Section 6312(c), and two counts of criminal use of a communication facility in violation of 18 Pa.C.S. Section 7512(a).

The commonwealth sought a court order to compel Davis to reveal his password. Davis invoked his Fifth Amendment right against self-incrimination. The Fifth Amendment to the U.S. Constitution guarantees a defendant the right not to incriminate himself. That means individuals cannot be forced to make statements, or testify, against their self-interest. 

Luzerne County Court of Common Pleas Judge Tina Gartley focused on whether turning over the password would be testimonial.

The Fifth Amendment protects communication by defendants that is “testimonial.” The trial court opined that “the touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind to explicitly or implicitly communicate some statement of fact.’”

The trial court then turned to the “foregone conclusion” exception to the Fifth Amendment. In Fisher v. United States, 425 U.S. 391 (1976), the U.S. Supreme Court established the rationale underlying the foregone conclusion doctrine. The court ruled that an act of production does not involve testimonial communication if the facts conveyed are already known to the government, such that the individual “adds little or nothing to the sum total of the government’s information.” Since Davis admitted to watching child pornography videos and that he is the sole owner of the computer, the trial court held that the exception applied. The Superior Court affirmed.

The case made its way to the Pennsylvania Supreme Court in May. Prosecutors argued that, “The commonwealth does not seek the password to establish or prove a connection between Davis, his computer and its contents because it already has that information. It merely seeks surrender of the password in order to open the lock that Davis has placed on the computer to avoid a lawful search.”

The Supreme Court acknowledged that “at times, constitutional privileges are an impediment to the commonwealth—requiring the commonwealth to do the heavy lifting, indeed, to shoulder the entire load, in building and bringing a criminal case without a defendant’s assistance may be inconvenient and even difficult.”

That difficult burden is no reason to circumvent the rights and privileges afforded an accused by the U.S. Constitution.

The Supreme Court concluded that compelling the disclosure of a password to a computer, that is, the act of production, is testimonial. Revealing a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature. There is no physical manifestation of a password, unlike a hand writing sample, blood draw or a voice exemplar. As a password is necessarily memorized, one cannot reveal a password without revealing the contents of one’s mind.

In 1990, Justice John Paul Stevens wrote in a dissent in Doe v. United States, 487 U.S. 201 (1990), “A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens or other items of physical evidence may be extracted from a defendant against his will.” Stevens continued, “but can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed.”

In 2000, the Supreme Court decided United States v. Hubbell, 530 U.S.23 (2000) involving an issue of Fifth Amendment privilege for a defendant who became intertwined in the “Whitewater” witch hunt targeting Bill and Hillary Clinton. The court explained why a grand jury subpoena requiring a man to assemble self-incriminating documents was improper:

It was unquestionably necessary for the respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena. … The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.

The Pennsylvania Supreme Court borrowed the metaphor raised in Doe and Hubbell to emphasize its holding. A footnote to the opinion contained the following passage, “Indeed, a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose―keeping information contained therein confidential and insulated from discovery. Here, under U.S. Supreme Court precedent, we find that the commonwealth is seeking the electronic equivalent to a combination to a wall safe—the passcode to unlock the appellant’s computer. The commonwealth is seeking the password, not as an end, but as a pathway to the files being withheld.”

In the 27-page majority opinion, Commonwealth of Pennsylvania v. Davis, 56 MAP 2018, Nov. 20, 2019, written by Justice Deborah Todd, the high court acknowledged “the significant and ever-increasing difficulties faced by law enforcement in light of rapidly changing technology, including encryption.”

However she wrote, “This constitutional right is firmly grounded in the realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘protection to the innocent.’”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. Contact him at www.mattmangino.com, matthewmangino@aol.com and follow him on Twitter @MatthewTMangino).

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GateHouse: Life without parole under scrutiny

Matthew T. Mangino

GateHouse Media

December 13, 2019

Life without the possibility of parole (LWOP) is a growing concern in this country. According to the Sentencing Project, the number of LWOP sentences has quadrupled from about 12,500 in 1992 to more than 53,000 as of 2016.

The expansion of LWOP was the result of the confluence of two very different groups. The right-wing - tough-on-crime - hardliners who, beginning in the mid-1980s, declared war on drugs and violent crime and adopted harsher, mandatory sentences, including LWOP.

The second group includes the death penalty abolitionists, left leaning progressives, who adopted LWOP sentences as a logical alternative to the death penalty. As the death penalty wanes - only 22 executions expected in 2019, the fewest since 1991 - those opposed to the death penalty have now set their sights on LWOP.

The cost and morality of locking-up - forever - a wide swath of offenders has come into question.

A number of states are reviewing offenses that are subject to LWOP. In Pennsylvania, for instance, an individual convicted of driving the get-away car in a robbery, that ended in murder could be sentenced to mandatory LWOP. The driver could have had absolutely no intention of killing anyone, in fact the shop keeper could have killed his unarmed accomplice, and the driver could end up in prison for life.

According to the Baton Rouge Advocate, about 15% of Louisiana’s prison population consists of people serving life without parole, which is the highest percentage among all states. Those numbers are the result of sentencing laws enacted decades ago - including abolishing parole for all life sentences.

State lawmakers in Pennsylvania have moved toward changing their laws in recent months, but the latest proposal stalled in committee and did not come before the legislature for a vote. According to The Advocate, the proposal would allow lifers a chance at parole after serving 35 years on a first-degree murder conviction and 25 years on second-degree murder, which under Pennsylvania law refers exclusively to an unintentional killing during the commission of a felony.

In Massachusetts, there are more than a thousand men and women serving life without the possibility of parole. There is pending legislation that would require the possibility of parole and would allow all inmates currently serving life sentences to have the opportunity for a parole hearing after serving 25 years. Release would not be automatic but the parole board would take at least one look at the possibility of parole.

Former California Governor Jerry Brown signed into law a bill that bans sentencing juveniles to life without parole.

The U.S. Supreme Court has chipped away at LWOP parole for juveniles. First, the high court struck down mandatory life without parole for juveniles and later eliminated life without parole for juveniles who committed non-homicide offenses.

The United States is the only country that allows the sentence of life without parole for juveniles. California is one of 20 states and the District of Columbia who have outlawed life without the possibility of parole for juvenile offenders. There are another five states that do sentence juveniles to life without parole.

In 2012, there were only five states that banned life without parole for juveniles - the addition of California quadruples that number and shows momentum toward an emerging “national consensus” against sentencing juveniles to die in prison. This theory of a national consensus and “evolving standards of decency” are the same theories that resulted in the Supreme Court striking down the death penalty for juveniles.

Quinn Cozzens, staff attorney for the Abolitionist Law Center told The Advocate, “Mandatory life without parole reflects a judgement that somebody is irredeemable, essentially social refuse - something to be kept out of sight and out of mind.”

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 at @MatthewTMangino.

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Kentucky governor restores voting rights for 140,000 former offenders

Kentucky’s newly elected Democratic governor, Andy Beshear, signed an executive order on restoring the vote and the right to hold public office to more than 140,000 residents who have completed sentences for nonviolent felonies, reported the New York Times.

With that move, Kentucky joined a fast-growing movement to return voting rights to former felons, leaving Iowa as the only state that strips all former felons of the right to cast a ballot.

Since 1997, 24 states have approved some type of measure to ease voting bans, according to the Sentencing Project, a Washington group that advocates criminal justice policy changes. Kentucky joins Virginia, Florida, Nevada and other states that have extended voting rights in the last few years.

Mr. Beshear said the order would apply to more than half of the estimated 240,000 Kentuckians with felonies in their past, as well as those who complete their sentences in the future.

While he believes in justice, he said, “I also believe in second chances.”

“We’re talking about moms and dads, neighbors and friends, people who have met and taken on one of the greatest challenges anyone can face: overcoming the past,” the governor said. “It is an injustice that their ability to rejoin society by casting a vote on Election Day is automatically denied.”

Voting-rights advocates called Kentucky’s decision a significant advance in a campaign to return the vote to felons that began decades ago and has won widespread attention and support only recently.

But while the most recent changes have returned voting rights to well over 1.5 million people nationwide, it remains unclear how they will affect the political process. A handful of academic studies suggest that former prisoners register and vote at rates well below national averages.

The governor said his order did not extend to those who committed violent felonies because some offenses, such as rape and murder, were too heinous to forgive. The order also excludes those who were convicted under federal law or the laws of other states, although they would be able to apply individually for restoration of their rights.

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Texas carried out state's 9th and final execution of the year

The 22nd Execution of 2019

On December 11, 2019, as Texas inmate Travis Runnels, 46, was executed by lethal injection, reported the Washington Post. Runnels first landed in an Amarillo, Tex., prison over two decades ago, after receiving a 70-year sentence for an aggravated robbery in Dallas.

While he was behind bars, court documents say, he grew angry and dissatisfied about his job as the janitor at an in-house boot factory, which made shoes for Texas prisoners. He had requested a work transfer to the prison’s barber shop but hadn’t received it.

On Jan. 29, 2003, before starting his shift, Runnels expressed his dissatisfaction to three other inmates, making violent threats about the plant manager, Stanley Wiley.

Once he arrived at the factory, Runnels went up to Wiley, tilted the man’s head back and slit his throat with a knife. The wound, spanning about nine inches, was so deep it had cut Wiley’s spine — and would later kill him.

Runnels wiped the knife clean with a white rag and walked away.

“It was cowardly,” prosecutor Randall Sims told jurors at Runnels’s trial, according to the Associated Press.

It was hardly a question whether Runnels, the ninth and final Texas inmate executed on death row this year, had committed a murder. Over a decade ago, the Dallas native pleaded guilty in the 2003 killing of his former prison supervisor, reported the Washington Post.

But things got far more complicated when it came to one of the witnesses in Runnels’s trial. The man’s attorneys charged that a state investigator, A.P. Merillat, had given false testimony. Prosecutors never denied that claim, and even Merillat recently suggested he may have erred.

Yet the question of whether his testimony made a difference in the verdict — and thus, between Runnels’s life and a life sentence — became central to a legal battle that rose all the way to the U.S. Supreme Court this week.

“You shouldn’t be allowed to get a death sentence based on false testimony,” his attorney, Mark Pickett, recently told the Texas Tribune. “This is testimony that … no one is disputing is false.”

Prosecutors, however, argued that even if Merillat had misled jurors, it wouldn’t have made a difference in the verdict. They say that Runnels, who had a record of other assaults against prison guards, was too dangerous and would have been sentenced to death anyway.

Though he knew the state wanted to sentence him to death, Runnels pleaded guilty. So the question at his trial was not one of innocence. It was whether he could coexist with others during a life in prison or whether he posed such a “future danger” — to guards, inmates, and the public — that he should head to death row instead.

To answer that question, prosecutors called on A.P. Merillat. Then a state official who investigated prison crimes, Merillat had often been called on to testify about the harm caused by dangerous inmates.

At the 2005 trial, he appeared to do just that. He told jurors that inmates like Runnels could not be held securely, even if they were sentenced to life in prison without parole. He said that if those convicted of capital murder — like Runnels — were not sentenced to death, they would automatically be placed in dorms or cells alongside other inmates, without much supervision or consideration of their full records. But that perspective went against changes made months earlier to the Texas Department of Criminal Justice’s classification plan, which stated that capital murder convicts sentenced to life in prison would be placed at a stricter level of security.

Runnels’s attorneys said his testimony was “plainly and patently false.” One former prison official would later tell Texas Monthly that it was “bulls---.” And in interviews with Texas news outlets, even Merillat acknowledged he might have been wrong in Amarillo.

The jury voted to put Runnels on death row. The ruling triggered more than a decade of legal disputes about the trial, much of it centered on Merillat’s testimony: Had that falsehood contributed to the punishment beyond a reasonable doubt?

His attorneys argued it had. The purpose of Merillat’s testimony, they said, was to establish that security for prisoners not on death row was “so lax” that Runnels would be a danger to others there, they wrote in a petition.

The sentences of two death row inmates, in 2010 and 2012, had been overturned after the Texas Court of Criminal Appeals ruled that Merillat gave jurors false information, they said, and Runnels had also received shoddy representation.

“Travis, just like anybody in this country, deserves a trial where people aren’t lying,” Pickett told the Houston Chronicle. “No matter what you did, what the jury should be hearing is the truth.”

Yet prosecutors said that Runnels’s crime — and his subsequent behavior in prison — was enough to make him a future threat in prison and merit a death sentence, with or without Merillat’s testimony. After killing Wiley, they said, Runnels threw feces and a lightbulb at other prison guards.

“The jury would undoubtedly have found Runnels to be a future danger,” Jefferson Clendenin, Texas assistant attorney general, wrote in a brief to the U.S. Supreme Court on Monday.

The case made its way through Texas courts, which repeatedly rejected his appeals. Runnels’s supporters argued that he had changed, following years on death row, but the prisoner’s options grew few and far between. Amid a rising wave of scrutiny, Merillat chimed in too.

“If the jury gave him the death penalty because of his particular crime and the heinousness of it and the actions he committed after his crime … then the jury’s verdict should stand,” he told the Tribune. “If they gave him the death penalty because of what I said and I was wrong, I don’t want him to have the death penalty.”

Late on Wednesday afternoon, though, U.S. Supreme Court justices refused to block Runnels’s execution.

Less than an hour later, he was injected with a lethal dose of a sedative, while strapped into a death chamber gurney in Huntsville, Tex.

Outside the prison, about 70 miles north of Houston, several hundred Texas corrections officers stood in formation, KTVT reported, hugging or shaking the hand of Wiley’s sister and brother-in-law.

Inside, Runnels declined his chance to say any final words. Instead, he smiled and mouthed a kiss toward his friends and attorneys.

By 7:26 p.m., after four quick breaths, he was dead.

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Read the Articles of Impeachment

Read the two Articles of Impeachment filed against President Donald Trump by Representative Jerrold Nadler, Chairman of the House Judiciary Committee.
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PA Supreme Court to hear yet another challenge to the remnants of Megan's Law

The landmark Pennsylvania law that for nearly a quarter of a century has required a public registry of sex offenders and community notification about their whereabouts is facing a life-or-death challenge before the state’s highest court, reported the Philadelphia Inquirer.

Enacted nearly 25 years ago, Megan’s Law was hailed as a pivotal step toward making communities safer by empowering the public with information about where sex offenders live. Now, five separate cases before the state Supreme Court are attacking it as outdated, discriminatory, and unnecessarily cruel, depriving thousands of people of their fundamental rights.

The cases challenge nearly every aspect of the law, which has undergone several incarnations since being signed in 1995, one year after the death of 7-year-old Megan Kanka. The New Jersey girl was raped and killed by a neighbor who, unbeknownst to her family, was a twice-convicted pedophile. Similar laws were adopted across the United States and at the federal level.

Prosecutors believe the pending cases could gut Pennsylvania’s law, allowing sexually violent predators to evade detection and endangering public safety. They also warn that the law’s best-known aspect — the website that lists the thousands of offenders in the state — could be watered down or dismantled. In the last year alone, the website received 411 million page views, state records show.

"Awareness and knowledge are power, and they are precisely why this offender registry exists and what is at stake in the Pennsylvania Supreme Court,” said Attorney General Josh Shapiro, whose office is leading the defense of the law in some of the cases before the high court.

Defense lawyers, joined by a growing chorus of experts in the criminal justice reform movement, dismiss that. They argue the cases expose deep constitutional problems and should at a minimum push the legislature to rethink its approach to managing people who commit sexual violence.

“The way the system works currently cannot continue to function,” said Aaron Marcus, an assistant defender with the Defender Association of Philadelphia and one of the lawyers involved in challenging the law.

At the heart of the majority of cases is the latest iteration of the Sexual Offender Registration and Notification Act, or SORNA, which evolved out of the original Megan’s Law. When SORNA took effect at the end of 2012, it greatly expanded the law, increasing the list of offenses subject to registration and notification — including a handful that are not sexual in nature — and imposing more stringent registration and notification rules.

The state’s Megan’s Law registry more than doubled, growing from about 10,000 people to just over 20,000, according to the Pennsylvania State Police, which oversees the registry.

Marcus said that after “decades of trial, mountains of empirical evidence and close to one million people around the country being denied their rights to liberty and their reputation," no hard evidence exists that the public is any safer or that assaults have been prevented.

One of the most closely-watched cases before the high court deals with requirements under the current law for people classified as “sexually-violent predators," those who have committed the most serious offenses and who are considered to have a high likelihood to reoffend. They are subject to lifetime registration, as well as lifetime counseling and community notification.

The case centers on whether those rigorous registration, notification and counseling requirements constitute unlawful punishment.

Brought by a Butler County man who pleaded guilty to statutory sexual assault and corruption of minors, the case targets the state’s little-known process for assessing sexual offenders. A board of psychiatrists, psychologists and criminal justice professionals in Pennsylvania make recommendations to the court about whether someone should be classified as a sexually violent predator.

Since 2000, the board has completed 20,260 assessments, according to state officials. In 6,027 of those cases, it has recommended that the offender be classified as a sexually violent predator, although the courts have not always agreed.

“This is the case that will dictate how we operate going forward,” said Meghan Dade, the board’s executive director. “This is a pivotal moment in Pennsylvania.”

Another case before the court arose from the convoluted registration system for offenders. Because of a separate legal challenge, the law now imposes two different sets of rules: one for people who committed crimes prior to Dec. 20, 2012 — when the current law went into effect in Pennsylvania — and another for people who committed crimes after that date.

Lawyers for a Chester County man — a biochemical engineer with no prior record who was convicted in 2017 of aggravated indecent assault and subject to lifetime registration — are arguing the law violates a fundamental right to reputation under the state constitution. It presumes that people convicted of certain sexual offenses cannot change and therefore are prone to reoffending, they contend.

In court papers, the lawyers, led by Marcus, cite experts and studies that show the public holds a false perception that people convicted of sexual offenses will go on to reoffend, and that their risk for doing so lasts for years. They said only a small number of offenders fit that bill, while the rest get lumped into that group, suffering a lifetime of harm.

Their arguments go to the heart of the criminal justice reform movement blossoming across the country that aims to reduce harsh penalties for smaller offenses, and reform policies for offenders who, after serving prison time, suffer myriad social and financial hardships.

“It is difficult to overstate the impact that sex offender registration has on a person’s life,” Marcus said.

Lawyers are paying close attention to the case because it takes aim at the state’s sex-offender website, which some view as aiding in destroying reputations because it is so widely accessible.

“The long-term viability of the Megan’s Law website could be implicated,” said Carson Morris, a deputy attorney general in the state Attorney General’s Office who is defending Megan’s Law in one of the five cases before the high court.

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SCAN a dubious police investigation 'tool' in use around the country

A dubious police investigation “tool” well known to many police departments but little known to the public is called Scientific Content Analysis, or SCAN for short.

SCAN, a product sold by a company called the Laboratory for Scientific Interrogation (LSI), has, in the words of four scholars in a 2016 study, “no empirical support” — meaning, there’s no dependable research showing that it works, reported ProPublica and the South Bend Tribune.

Scientific Content Analysis is akin to other investigative tools scrutinized by ProPublica, including bloodstain-pattern analysis and photo analysis. These analytical techniques promise a degree of certainty — about how blood came to spray across a wall, or whether a particular plaid shirt was worn by a robber — that can guide an investigator or shore up a case. The trial evidence presented against Joyner included yet another example: a prosecution expert testified that two plastic garbage bags — one found in Joyner’s apartment, the other around Hernandez’s head — had “definitely” once been connected. (A statistician said in an interview that this testimony was laced with “a lot of unproven assertions.”) Law enforcement officials hold these tools out as science, even though they have little or no scientific backing.

SCAN’s creator has written, “I am pleased to say SCAN has helped solve thousands of cases over the years.”

While police in Elkhart and elsewhere have used the tool to make critical decisions that can establish an investigation’s direction, SCAN has escaped the scrutiny that comes with being offered in court as proof. Appellate opinions often refer to key pieces of evidence used at trial, but a search of legal databases with opinions from around the country turns up precious few mentions of SCAN.

The detective who used SCAN in the Joyner case was Steve Rezutko. He resigned from the Elkhart police in 2001 after an internal investigation found he had engaged in sexual misconduct with an informant. He died, in an apparent suicide, this year.

In 1994, two years after Hernandez’s death, Rezutko was asked in a deposition to describe his training in SCAN.

“Not great,” Rezutko said. “Been to two schools. At the time, I hadn’t done an awful lot, maybe 40 or 50 interpretations, but I had been to a weeklong school in Indianapolis under the guy who … developed the procedure.”

Joyner’s lawyer asked whether a person’s ability to read and comprehend the English language could affect the results of the questionnaire.

“Well ... you struggle with the same questions I struggled with when I went through the school, went through the sessions,” Rezutko said. “I guess it’s kind of like two and two is four. Why is it four? It’s two and two is four all over the world. Why it is I have no idea.”

Rezutko, like officers across the country, took it on faith that SCAN works, without really understanding how or why.

Local, state and federal agencies from the Louisville Metro Police Department to the Michigan State Police to the U.S. State Department have paid for SCAN training. The LSI website lists 417 agencies nationwide, from small-town police departments to the military, that have been trained in SCAN — and that list isn’t comprehensive, because additional ones show up in procurement databases and in public records obtained by ProPublica. Other training recipients include law enforcement agencies in Australia, Belgium, Canada, Israel, Mexico, the Netherlands, Singapore, South Africa and the United Kingdom, among others.

The tool’s lack of scientific grounding aside, criminal investigators have been quick to seize upon sales pitches for training, exemplified by a company commander with the famed Texas Rangers, who, in an email to his fellow majors, wrote that SCAN’s creator is “a true master at detecting deception.”

For Avinoam Sapir, the creator of SCAN, sifting truth from deception is as simple as one, two, three.

1. Give the subject a pen and paper.

2. Ask the subject to write down his/her version of what happened.

3. Analyze the statement and solve the case.

Those steps appear on the website for Sapir’s company, based in Phoenix. “SCAN Unlocks the Mystery!” the homepage says, alongside a logo of a question mark stamped on someone’s brain. The site includes dozens of testimonials with no names attached. “Since January when I first attended your course, everybody I meet just walks up to me and confesses!” one says. Acronyms abound (VIEW: Verbal Inquiry - the Effective Witness; REASON: REport Automated SOlution Notes), as do products for sale. “Coming Soon! SCAN Analysis of the Mueller Report,” the website teased this year. LSI offers guidebooks, software, kits, discount packages, cassette tapes of seminars and, for computer wallpaper, a picture of a KGB interrogation room.

SCAN saves time, the site says. It saves money. Police can fax a questionnaire to a hundred people at once, the site says. Those hundred people can fax it back “and then, in less than an hour, the investigator will be able to review the questionnaires and solve the case.” “Past students … have reported a dramatic increase in the amount of information obtained from people,” the site says. “Thus, costly and time-consuming outside investigation was reduced to a minimum.”

SCAN works, the site says. “Analysis of statements has been found to be highly accurate and supported by a validation survey conducted in a U.S. governmental agency. In that survey, when SCAN was compared to other methods, the validity of SCAN reached above 95%,” the site says, without identifying the agency or citing or linking to any survey.

Sapir has outlined his background on LinkedIn and in books he’s written, including one in which he uses SCAN to analyze the biblical book of Genesis. He was born in 1949 in Israel. He got a bachelor’s degree in psychology and criminology at Bar-Ilan University and a master’s in criminology at Tel Aviv University. His master’s thesis was on “Interrogation in Jewish Law.” He served in Israeli military intelligence Unit 8200 (a high-tech spy agency akin to America’s NSA). He became a polygraph examiner with the Israel police. In the mid-1980s, he moved to the United States, where he began teaching SCAN to investigators “on six continents.”

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DOJ Inspector General: FBI and DOJ investigation of Russia/Trump justified

The FBI mishandled parts of its application to monitor a Trump campaign aide as it was probing possible Russian interference in the 2016 election, but the overall investigation was justified, according to a long-awaited report by the Justice Department's watchdog that rebuts the president's depiction of a politically biased plot against him, reported NBC News.

The report by Justice Department Inspector General Michael Horowitz concluded that the FBI and the Justice Department launched their investigation into the 2016 campaign not for political reasons, but because of evidence the Russian government was using cutouts to reach out to the Trump campaign as part of its efforts to influence the election.

Horowitz found that political bias did not taint the actions of former FBI leaders who have frequently been the subject of presidential attacks on Twitter, including former Director James Comey, former Deputy Director Andrew McCabe and former Deputy Assistant Director Peter Strzok.

"We did not find documentary or testimonial evidence that political bias or improper motivation influenced the decisions" to open investigations into four Trump campaign aides, the report says.

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SCOTUS halts federal executions

The Supreme Court will not allow the Trump administration to resume executions in federal death penalty cases after a 16-year hiatus, reported The New York Times. The move, which left in place a preliminary injunction from a federal judge in Washington, effectively stayed the executions of four men scheduled to be put to death in the coming weeks. The court’s brief, unsigned order said it expected an appeals court to decide the inmates’ challenges “with appropriate dispatch.”

In a separate statement, Justice Samuel A. Alito Jr., joined by Justices Neil M. Gorsuch and Brett M. Kavanaugh, said that the inmates “were convicted in federal court more than 15 years ago for exceptionally heinous murders” and that “the government has shown that it is very likely to prevail” when the case moves forward.

“Nevertheless,” Justice Alito wrote, “in light of what is at stake, it would be preferable for the district court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.”

He wrote that he would have set a deadline for the appeals court to act.

“The court has expressed the hope that the court of appeals will proceed with ‘appropriate dispatch,’ and I see no reason why the court of appeals should not be able to decide this case, one way or the other, within the next 60 days,” Justice Alito wrote. “The question, though important, is straightforward and has already been very ably briefed in considerable detail by both the solicitor general and by the prisoners’ 17-attorney legal team.”

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Some DA's still aggressively pursuing the death penalty

The number of people on death row in the U.S. is at a 27-year low, but Franklin County District Attorney Ron O’Brien sought the death penalty in 10 cases from 2014 through 2018, according to an analysis of court records by The Appeal. But O’Brien, who has served as the DA since 1997, secured a death verdict in just one of the 10 cases. Eight resulted in a sentence of life without the possibility of parole.

In August, a jury returned a death verdict in the case of Kristofer Garrett, convicted for murdering his girlfriend and their 4-year-old daughter in January 2018. Garrett was the first person since 2003 to be sentenced to death in Franklin County, the most populous county in the state with more than 1.3 million residents.

One death penalty case brought by O’Brien is currently awaiting trial.

O’Brien’s relentless pursuit of the death penalty makes Franklin County an outlier in the U.S., according to Robert Dunham, executive director of the Death Penalty Information Center.

Under O’Brien, Franklin County joins other outlier counties like Cuyahoga County, Ohio, which Dunham said currently is the most prolific county in seeking the death penalty, and Caddo Parish, Louisiana, where the death-seeking rate between 2006 and 2015 was eight times greater than the rest of the state. Despite accounting for only 5 percent of the state population, nearly 40 percent of people sentenced to death in Louisiana during that time came from Caddo Parish. In 2015, James Stewart was elected Caddo district attorney. Since then, Stewart has continued to seek the death penalty but in a more limited capacity than the previous administration. But Stewart has sought the death penalty in cases originating prior to his tenure and continues to support death sentences imposed before he took office.  

Dunham said fewer than 2 percent of counties in the U.S. account for approximately 60 percent of all people currently sentenced to death row. More than 80 percent of counties have not sentenced anyone to death in more than 40 years and roughly 85 percent of counties have not carried out an execution.

According to a recent ACLU report, only three counties—Los Angeles, Riverside (California) and Maricopa (Arizona)—had more than 10 death sentences from 2014 to 2018.

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GateHouse: Turley: Jumping in bed with Ukraine not impeachable offense

Matthew T. Mangino

GateHouse Media

December 6, 2019

George Washington University Law Professor Jonathan Turley testified this week before the Judiciary Committee of the U.S. House of Representatives, relative to the impeachment of President Donald Trump.

There were four legal scholars called to testify. Three selected by the Democrats and Turley by the GOP. Turly tweeted the day after the hearing, “My call for greater civility and dialogue may have been the least successful argument I made to the committee. Before I finished my testimony, my home and office were inundated with threatening messages and demands that I be fired from GW.”

Why would Turley’s phones blow-up after his testimony? Some will say that the partisan divide is so wide that common ground is a thing of the past. In the politics of the 21st century, “You are either with me or against me.”

However, could the animus toward Turley have some merit? You would expect that a legal scholar may disagree with his or her colleague’s interpretation of the Constitution, but their position should be consistent.

A review of Turley’s position regarding impeachment seems to be inconsistent. In Turley’s opening statement before the House Judiciary Committee regarding the Trump impeachment he said:

 “I’m concerned about lowering impeachment standard to fit a paucity of evidence and an abundance of anger. I believe this impeachment not only fails to satisfy the standard of past impeachments, but would create a dangerous precedent for future impeachments. This would be the first impeachment in history where there would be considerable debate, and in my view, not compelling evidence, of the commission of a crime.”

In 1998, Turley testified in front of the same committee during the impeachment hearings of President Bill Clinton. Turley said, as reported by The Nation, “No matter how you feel about President Clinton, no matter how you feel about the independent counsel, by his own conduct, he has deprived himself of the perceived legitimacy to govern. You need both political and legal legitimacy to govern this nation, because the president must be able to demand an absolute sacrifice from the public at a moment’s notice.”

In 1998, according to Turley, Clinton lost his legal legitimacy to govern, because he lied about a sexual liaison with a young female staffer.

Twenty-one years later, Turley is concerned that a president who withheld military aid for a foreign government, in exchange for the foreign government conducting a dubious investigation of the president’s political opponent, does not rise to an impeachable offense.

It is easy to understand why people are calling for him to step down from his position at George Washington University.

In the hyper-partisan world of American politics, we expect elected officials to ignore facts, or the law, to advance their political agenda - be they Democrats or Republicans.

Should we accept, with a shrug of the shoulders, a member of academia who adjusts his interpretation of the Constitution to advance the position of a public official or political party?

Turley said in his opening remarks to the committee, “I have spent decades writing about impeachment and presidential powers as an academic and as a legal commentator. My academic work reflects the bias of a Madisonian scholar.”

Turley was referring to James Madison, America’s fourth president, and author of the Federalist Papers, along with Alexander Hamilton and John Jay.

John Avlon, a CNN senior political analyst, recently wrote, that Madison argued in his “Notes of Debates in the Federal Convention,” “for the necessity of impeachment because elections may not be enough to constrain a chief executive. And the influence of foreign powers in our domestic affairs - as well as corruption and loss of capacity might be ‘fatal to the Republic.’”

What is most troubling is that Turley appears to invoke Madison when it suits his political interests.
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 at @MatthewTMangino.

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