Thursday, January 31, 2019

Texas carries out first execution of 2019

The 1st Execution of 2019
Robert Jennings was executed on January 30, 2019 for July 1988 fatal shooting of Officer Elston Howard during a robbery at an adult bookstore that authorities said was part of a crime spree, according to the Washington Post.
As witnesses filed into the death chamber, Jennings asked a chaplain standing next to him if he knew the name of the slain officer. The chaplain didn’t respond, and a prison official then told the warden to proceed with the punishment.
“To my friends and family, it was a nice journey,” Jennings said in his final statement. “To the family of the police officer, I hope y’all find peace. Be well and be safe and try to enjoy life’s moments, because we never get those back.”
Outside the prison, more than 100 officers stood vigil. And a motorcycle club that supports police revved their engines, with the roar from the bikes audible in the chamber.
Jennings was pronounced dead at 6:33 p.m., 18 minutes after the drug started. He became the first inmate put to death this year both in the U.S. and in Texas, the nation’s busiest capital punishment state.
His attorneys had asked the U.S. Supreme Court to delay his execution, arguing Jennings’ trial attorneys failed to ask jurors to fully consider evidence — including details of his remorse for the officer’s shooting and possible brain damage — that might have spared him a death sentence.
A twice convicted robber, Jennings had been on parole for about two months when prosecutors say he entered Mr. Peeper’s Bookstore with the intention of robbing the business. Since being paroled, Jennings had gone on a crime spree, committing about 10 robberies, including having already robbed the same adult bookstore 12 days before Howard’s slaying.
Officer Howard, 24, was in the middle of arresting the store clerk for operating a pornographic video arcade without a permit when Jennings shot the officer twice in the head.
Howard, who had been wearing a jacket with the words “Houston Police” on it, staggered for a few feet before falling to the ground, where he was shot twice more by Jennings. The clerk later testified the shooting was so quick, Howard never had a chance to unholster his gun.
Jennings was arrested hours later when he went to a Houston hospital after being shot in the hand by his accomplice, who got angry at Jennings for shooting the officer.
To read more CLICK HERE

Wednesday, January 30, 2019

Ohio doctor behind 28 overdose deaths

Troy Allison received a 1,000 microgram dose of fentanyl, which is used in hospitals to treat severe pain, although typically in much smaller amounts, reported NBC News.
Troy Allison's death and at least 33 others involving Mount Carmel patients from 2015 to 2018 remain part of a wider internal investigation into Dr. William Husel, who treated them, and why the intensive care doctor allegedly ordered "significantly excessive and potentially fatal" doses of pain medication in 28 of the cases, according to the hospital.
Husel's medical license was suspended Friday by the State Medical Board of Ohio, which said the allegations against him were so serious that he was not afforded a hearing prior to the board's vote and can no longer practice medicine in the state.
Yet, key questions remain unanswered: Why such high doses, and were they the result of repeated mistakes — or intentionally meant to be deadly?
Doctors, pharmacists and lawyers who spoke with NBC News say hospitals such as Mount Carmel, one of the largest health systems in Ohio, have multiple safeguards in place that should prevent patients from being overmedicated to death. There are checks and balances allowing those in the chain of command to trigger an alarm, the medical experts added, so that an error can be avoided or reviewed after the fact, including during emergency situations in which dangerous drugs such as fentanyl are used.Related
"We know that the risk for error goes up in chaotic situations, but hospitals have worked hard to limit these risks and do a very good job protecting safety in fast-paced environments like the emergency room or intensive care unit," said Dr. Daniel Tobin, an associate professor of medicine at Yale University and a leading expert on opioid safety.
At least six wrongful death lawsuits have been filed on behalf of deceased patients, including Troy Allison, alleging Husel ordered the doses either negligently or purposefully in order to hasten the end of their lives.
All Christine Allison knows is that her husband of 11 years, her best friend and a father of two, was taken from her — and she wants Husel to explain why.
"He actually seemed very kind and very compassionate. I trusted him," she said of the doctor. "Now I think he needs to be in prison. The system failed."
To read more CLICK HERE


Tuesday, January 29, 2019

Fear of crime: 'All the devils are here'

Nestor Ramos writing about fear for the Boston Globe:
It is easy, days like these, to look out the window or peer through the prism of our glowing screens and see a world that is full of monsters.
Maybe people have always harbored these feelings: moral panics, witch hunts, folk devils. “Hell is empty,” William Shakespeare wrote in “The Tempest” about, oh, 400 years ago. “And all the devils are here.”
But while fear of the people who populate the world around us is no new phenomenon, it feels today like something approaching an epidemic.
And who wouldn’t be fearful, if you follow the news at all? Like so many people accused of heinous crimes all over the country, [a criminal's] face was plastered on every television set, homepage, and front page this week, his bizarre social media presence offering no shortage of disturbing comments and strange selfies. 
So it is not just easy but tempting to think that there are terrifying figures lurking, waiting, unhinged and everywhere, like devils among us.
But there aren’t.
And it is in the moments when that temptation — when that fear — begins to feel particularly acute that we would do well to remember that. Whatever tiny kernel of reality there may be in the notion that the people we don’t recognize are inherently out to get us, the fiction we build around the grain of truth is a lot more dangerous. It breeds a fear that leads us inexorably toward our worst impulses.
Let that fear fester, and we begin to forget one of the foundational tenets of both Judeo-Christian religion and secular ethics: love for our neighbors. We stockpile weapons, imagining all the nightmare scenarios in which we might use them, though the reality is that they dramatically increase our own risk of injury or death. We call authorities on anyone who looks out of place — “better safe than sorry,” we tell ourselves, without stopping to consider whose safety we might be risking.
Focus on that fear long enough in our hearts, and we’ll begin to build walls in there. Eventually, those walls become literal, built on the persuasive power of horror stories about attacks or abductions, however rare, that ended far worse than this one did.
The idea of an America awash in evildoers has a certain twisted appeal. We will always grasp for explanations when terrible, inexplicable things happen.
Our current national preoccupation — $5.7 billion worth of steel slats or whatever — is being sold to the public not on the basis of facts, but fear. No serious analysis suggests it will do anything meaningful to keep America safe. And so proponents point to the kind of grisly cases that stoke fear: American carnage, as someone put it at the capitol a couple years ago now.
There is a simple and quite famous phrase that encapsulates all this. The words are indelible on our national consciousness; you already know them by heart. But somehow, in the nearly 86 years since Franklin Delano Roosevelt delivered his first inaugural address, his famous words’ meaning has been forgotten:
 “The only thing we have to fear is fear itself.”
To read more CLICK HERE


Monday, January 28, 2019

NRA not pro-gun enough for some


The NRA, the nation’s leading Second Amendment group with 5.5 million members, is no longer pro-gun enough for some gun-rights supporters,The Wall Street Journal reports. Smaller organizations, often with Second Amendment positions more strident than the NRA’s, are seeking to capitalize on complaints that the NRA didn’t do enough to stop the ban on bump stocks, the devices that allow a semi-automatic rifle to fire rapidly enough to simulate fully automatic fire.
Since they were used in 2017’s Las Vegas massacre, the nation’s most deadly mass shooting on record, the Trump administration reversed past interpretations of existing law to find that it could ban the devices, and it did so in December. Gun Owners of America and Firearms Policy Coalition are fighting that decision in court. Other groups are using the controversy to recruit members and solicit donations. The NRA asked Congress to allow the Bureau of Alcohol, Tobacco, Firearms and Explosives to review the device as an alternative to stricter legislative actions. Trent Steidley, an assistant professor at University of Denver who has studied the gun-rights movement, said the smaller groups don’t have NRA’s clout in Washington. They exercise their power largely by putting pressure on the NRA, he said. The NRA is “more worried about being outflanked on the right than on the left,” Steidley told the Journal.

Sunday, January 27, 2019

Mangino talks Hoerig verdict on WFMJ-TV

Watch my interview on WFMJ-TV21 Weekend Today discussing the Claudia Hoerig verdict in Trumbull County, Ohio.
To watch the interview CLICK HERE

Saturday, January 26, 2019

GateHouse: Showdown at the High Court

Matthew T. Mangino
GateHouse Media
January 25, 2019
The U.S. Supreme Court has not heard a gun rights case in more than nine years. That will change this fall. The Supreme Court said it will review New York City’s prohibition on carrying a licensed, locked and unloaded handgun outside the city limits.
The court’s decision to hear the appeal filed by a New York affiliate of the National Rifle Association could signal a more conservative Court’s interest in reviewing the often controversial world of gun ownership and gun rights. More directly, the court may be more willing to take on a gun rights case now that Justice Anthony Kennedy has retired and been replaced by Justice Brett Kavanaugh - who joins President Donald Trump’s first appointee Justice Neil Gorsuch.
According to Amy Howe of the SCOTUSBlog, opponents of the New York City ordinance suggest that the city’s ban on transferring even licensed, unloaded guns anywhere outside the city limits is draconian.
The so-called “premises license” allows New York City residents to take their guns to one of seven shooting ranges within city limits. The city ordinance forbids them to take their guns anywhere else, including second homes and shooting ranges outside the city, even when they are unloaded and locked in a container separate from ammunition.
The Second Amendment provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Much of the debate about the Second Amendment has related to whether the amendment protects armed militias or armed individuals.
In 2008, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in Washington D.C. According to the Constitution Center, a 5-4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.
Two years later, the Court struck down a similar handgun ban in Chicago.
The Court at the time listed a series of “presumptively lawful” regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places” such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.”
Long time conservative member of the court, Justice Clarence Thomas made no secret of his frustration with the Court’s reluctance to review gun cases. In 2014, Thomas criticized the Court for not taking up more gun cases, calling it a “disfavored” right.
“The right to keep and bear arms is apparently this Court’s constitutional orphan,” wrote Thomas.
The New York City case, at first blush, does not appear to be the vehicle to resolve any of the presumptively lawful regulations cited by the justices the last time a gun rights case was heard by the Court. Some of those presumptively lawful regulations have the support of gun advocates, but ardent supporters of the Second Amendment consistently view with suspicion any effort to control or restrict gun ownership.
Adam Winkler, the author of “Gunfight: The Battle Over the Right to Bear Arms in America,” told the New York Times he was surprised the Supreme Court agreed to hear such a minor Second Amendment case. “It’s a city ordinance, not a state law ... (t)his particular rule is unusual. It may be the only one of its kind in the country.”
“The justices,” said Winkler, “may see this as a way to start addressing gun rights outside the home in a quirky and incremental manner.”
New York City Mayor Bill de Blasio told reporters at a recent news conference that the city would vigorously defend its unique premises license.
Battle plans are being drawn - the showdown at the High Court may impact the way Americans own, possess and transport guns.
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.comand follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, January 25, 2019

Government shutdown violates the accused's Sixth Amendment rights

The government shutdown is hurting attorney-client relationships, and is a violation of individuals’ right to counsel guaranteed by the Sixth Amendment, reported The Appeal.
Individuals in New York detention centers are just a fraction of the growing number of defendants across the country who are being adversely affected by President Trump’s insistence that a funding bill include $5.7 billion for a U.S.-Mexico border wall. While courts have managed to extend funding for federal defender agencies a week at a time, the funding is not expected to last past Feb. 1. Public defenders and investigators who are members of Criminal Justice Act (CJA) panels—groups of court-approved attorneys who are appointed on a rotating basis to represent people in criminal cases—are working without pay. So are lawyers with Washington, D.C.’s Public Defender Service.
“Members of the CJA panel and my office are essential to the proper functioning of the Sixth Amendment,” Jason Hawkins, the federal public defender for the Northern District of Texas, told The Appeal in an email. “We will continue to investigate our cases, appear in court, and defend our client [sic] against the awesome power of the federal government. Yet we will not be paid.”
Hawkins and other federal public defenders say they are concerned that many of their clients will be held in custody for longer than necessary.
“The Sixth Amendment doesn’t shut down when the government does,” he said.
To read more CLICK HERE


Thursday, January 24, 2019

Ohio Parole Board dysfunctional, secretive and toxic

Cleveland Democrat Shirley Smith resigned her post on the Ohio Parole Board, saying the agency is dysfunctional, secretive and toxic, according to the Dayton Daily News.
Smith, a former lawmaker who pushed through sentencing reforms, spent three years on the 12-member board but gave up the $90,000-a-year job on Dec. 31.
When she was appointed to the Parole Board in February 2015 by the Kasich administration, Smith said she quickly learned “it would be a long, bumpy ride while navigating a complex system of make-up-as-you-go policies and procedures that were not neither principled nor consistent. In my opinion and experience, the Ohio Parole Board chooses to operate as a secret society based on college roommate friendships, tenure and positions held within the Ohio Department of Rehabilitation and Correction, and members’ desire to maintain absolute power.”
In a four-page opinion column distributed to Ohio media, Smith blamed DRC Court and Community director Cynthia Mausser for driving members off the board with “her scheming machinations.”
Mausser, who served on the board from 2001 to 2015 and now oversees the board, was not made available for response to Smith’s allegations.
Instead, Ohio DRC issued a written statement that said parole board rules and policies are public and the department encourages employee suggestions. Additionally, state law and the constitution give crime victims certain rights in the parole process. Parole board members who meet statutory requirements are selected.
 “Director nominee Chambers-Smith will be looking to add members who will create an inclusive and diverse board. In addition, she intends to conduct a comprehensive review of board policies and procedures and welcomes input from any and all stakeholders,” the statement said.
The Parole Board has discretion over the release or retention of prisoners sentenced before a major state law change in 1996 and over roughly 3,200 inmates sentenced to life terms after 1996 for murder and sex crimes against children. It also reviews clemency requests and makes recommendations to the governor.
Board members, who are appointed by the Ohio DRC director, interview parole eligible inmates via video conference. Hearings and deliberations are closed but decisions are public records. In 2017, members were paid between $90,300 and $115,600 in salaries.
Gov. Mike DeWine’s press secretary Dan Tierney said the governor “has full faith in the director to address issues that arise at DRC. Obviously, this is a new administration and we’re just getting started.”
DeWine’s nominee for prisons director Annette Chambers-Smith has yet to be confirmed by the Ohio Senate.
Bret Vinocur of BlockParole.com, which seeks to prevent release of the “worst of the worst,” said he agrees with much of Smith’s criticism.
“We have no idea how to determine what criteria they’re using to make parole decisions,” said Vinocur, of Columbus, a citizen advocate for the past 17 years. “It’s a crap shoot. You just don’t know.”
Prisoners who go before the board say its decisions are irrational, often based on subjective and unknown criteria and sometimes based on inaccurate information.
Pickaway Correctional Inmate Bernard Keith, representing himself, took a case to the Ohio Supreme Court. In 2014, he successfully argued that the parole board acted on inaccurate information. The 6-1 decision, which reversed the 10th District Court of Appeals, held that the parole board is obligated to be sure the records used to make decisions are reasonably accurate and pertinent.
A review of Ohio Parole Board annual reports shows on average over the past eight years, parole is granted in about 10 percent of the hearings.
Vinocur explains the low rate this way: “They have paroled all the low hanging fruit. The guys in there now are horrific. Go look at the cases, they’re horrible.”
Smith, who resigned Dec. 31, recommended the following reforms:
Establish a task force to independently review the board practices and policies and recommend changes that will bring more accountability and transparency;
Add members with more diverse backgrounds, rather than loading the board with people with criminal justice resumes and hire a more racially diverse staff;
Separate the board from the prison department;
Prohibit members from voting on parole decisions if they didn’t participate in the hearings; and set clear policies for clemency considerations.
To read more CLICK HERE


Wednesday, January 23, 2019

SCOTUS will take up first gun rights case in 9 years

The Supreme Court said it will take up its first gun rights case in nine years, a challenge to New York City’s prohibition on carrying a licensed, locked and unloaded handgun outside the city limits, reported The Associated Press.
The court’s decision to hear the appeal filed by three New York residents and New York’s National Rifle Association affiliate could signal a revived interest in gun rights by a more conservative court. The case won’t be argued until October.
The challengers are represented by prominent lawyer Paul Clement, who has been urging the justices to elaborate on the extent of constitutional gun rights the Supreme Court declared in decisions in 2008 and 2010. The court had previously rejected several appeals.
The court may be more willing to take on a gun rights case now that Justice Anthony Kennedy has retired and been replaced by Justice Brett Kavanaugh, who was President Donald Trump’s second high-court nominee to be confirmed.
Clement says the case “is a perfect vehicle to reaffirm that those decisions and the constitutional text have consequences.”
Joining in support of gun rights, 17 states said the court should break its years-long silence and use the case to define the scope of gun rights under the Constitution and the level of scrutiny, or skepticism, judges should apply to gun laws.
New York’s ordinance allows people licensed to have handguns to carry them outside the home to gun ranges in the city. The guns must be locked and unloaded.
The city residents who filed suit want to practice shooting at target ranges outside the city or take their guns to second homes elsewhere in New York state.
Lower courts had rejected the challenge.
The city’s top lawyer, Zachary Carter, urged the court to reject the case, arguing that the restrictions allowed New York police to reduce the number of guns carried in public.
There are seven shooting ranges in the city and at least one in each of the city’s five boroughs, Carter said.
To read more CLICK HERE


Monday, January 21, 2019

Will: 'He is an almost inexpressibly sad specimen'

Conservative columnist George Will on President Donald Trump:
Dislike of him should be tempered by this consideration: He is an almost inexpressibly sad specimen. It must be misery to awaken to another day of being Donald Trump. He seems to have as many friends as his pluperfect self-centeredness allows, and as he has earned in an entirely transactional life. His historical ignorance deprives him of the satisfaction of working in a house where much magnificent history has been made. His childlike ignorance — preserved by a lifetime of single-minded self-promotion — concerning governance and economics guarantees that whenever he must interact with experienced and accomplished people, he is as bewildered as a kindergartener at a seminar on string theory.
Which is why this fountain of self-refuting boasts (“I have a very good brain”) lies so much. He does so less to deceive anyone than to reassure himself. And as balm for his base, which remains oblivious to his likely contempt for them as sheep who can be effortlessly gulled by preposterous fictions. The tungsten strength of his supporters’ loyalty is as impressive as his indifference to expanding their numbers.
Either the electorate, bored with a menu of faintly variant servings of boorishness, or the 22nd Amendment will end this, our shabbiest but not our first shabby presidency. As Mark Twain and fellow novelist William Dean Howells stepped outside together one morning, a downpour began and Howells asked, “Do you think it will stop?” Twain replied, “It always has.”
To read more CLICK HERE

Sunday, January 20, 2019

Forensic pattern matching under scrutiny

Before the discovery of DNA identification methods in the 1980s, most of the FBI's lab worked in pattern matching, which involves comparing features from items of evidence to the suspect’s body and belongings, reported ProPublica.
Examiners had long testified in court that they could determine what fingertip left a print, what gun fired a bullet, which scalp grew a hair “to the exclusion of all others.” Research and exonerations by DNA analysis have repeatedly disproved these claims, and the U.S. Department of Justice no longer allows technicians and scientists from the FBI and other agencies to make such unequivocal statements, according to new testimony guidelines released last year.
Though image examiners rely on similarly flawed methods, they have continued to testify to and defend their exactitude, according to a review of court records and examiners’ written reports and published articles.
ProPublica asked leading statisticians and forensic science experts to review methods image examiners have detailed in court transcripts, published articles and presentations. The experts identified numerous instances of examiners overstating the techniques’ scientific precision and said some of their assertions defy logic.
The FBI declined repeated requests for interviews with members of the image group, which is formally known as the Forensic Audio, Video and Image Analysis Unit.
ProPublica provided the bureau written questions in September and followed up in November with a summary of our reporting on the bureau’s photo comparison practices. The FBI provided a brief prepared response last month that said the image unit’s techniques differ from those discredited in recent studies. It said image examiners have never relied on those methods “because they have been demonstrated to be unreliable.”
But the unit’s articles and presentations on photo comparison show its practices mirror those used in the studies.
The bureau did not address examiners’ inaccurate testimony and other questionable practices.
Judge Jed Rakoff of the United States District Court in Manhattan, a former member of the National Commission on Forensic Science, said the weakest pattern analysis fields rely more on examiner intuition than science. Their conclusions are, basically, “my hunch is that X is a match for Y,” he said. “Only they don’t say hunch.”
Rakoff said that image analysis hadn’t come before him in court and wasn’t taken up by the commission but said that investigators, prosecutors and judges should make sure evidence is reliable before using it.
Scandals involving other areas of forensic science have shown the danger of waiting for injustices to become public to compel reform, Rakoff said.
“How many cases of innocent people being wrongly convicted have to occur before people realize that there’s a very broad spectrum of forensic science?” Rakoff asked. “Some of it is very good, like DNA. Some of it is pretty good, like fingerprinting. And some of it is not good at all.”
Details on FBI caseloads and testimony are not readily available to the public. As such, there is no way to determine exactly how often image examiners testify and when their photo comparisons serve as central evidence in prosecutions. In court, examiners have said they analyze photos in hundreds of cases a year, according to trial transcripts.
To try to identify some of those cases, ProPublica searched court databases and found more than two dozen criminal cases since 2000 in which documents mentioned the FBI’s image examiners, nearly all cases that were appealed and thus had a substantial written record. Few criminal convictions, though, make it to an appeal.
None of the appealed cases led to judges reversing convictions, nor has evidence emerged to show that the defendants were innocent. Still, flaws in forensic science techniques often emerge decades after they’ve been allowed by judges and been used to secure convictions.
The problems with the FBI’s photo comparison work plague other subjective types of forensic science, such as fingerprint analysis, microscopic hair fiber examination and handwriting analysis, said Itiel Dror, a neuroscientist who trains U.S. law enforcement on cognitive bias in crime laboratories. Dror is a researcher at University College London, frequently teaching at agencies like the FBI and New York Police Department on ways to minimize personal beliefs from influencing casework.
Even DNA analysis can be swayed by bias, Dror said. But pattern-matching fields like image analysis are especially vulnerable. Image examiners’ lab work is, generally, only seeing if evidence from a suspect “matches” that from a crime scene.
“Many of them are more concerned by what the court accepts as science rather than being motivated by science itself,” Dror said.
To read more CLICK HERE

Saturday, January 19, 2019

GateHouse: Barr’s confirmation hearing ‘almost’ perfect

Matthew T. Mangino
GateHouse Media
January 19, 2019
Attorney General nominee William Barr has been on the hot seat before. He successfully navigated the confirmation process when his name was put forth by President George H.W. Bush in 1991. He served about two years as attorney general.
This time is different. He has been nominated for a second stint as attorney general by a president who is embroiled in an investigation that strikes at the heart of his presidency. A special counsel is looking into whether the Russian government meddled in the 2016 election with the aid and assistance of the Trump campaign.
Robert Mueller is the special counsel and President Trump has maligned him at every turn. He has tweeted endlessly that Mueller’s investigation is a “witch hunt” and that the alleged collusion with the Russians is a hoax.
He fired Jeff Sessions as attorney general essentially for letting the investigation continue by recusing himself from overseeing the Mueller investigation. The Deputy AG who has been overseeing the investigation is leaving office. William Barr, the nominee, has been highly critical of the special counsel’s investigation.
The showdown this week in a senate hearing room was supposed to be spectacular. It was not. In fact, if you were a senator and you were worried that the new attorney general would sack the special counsel and deep six the investigation - your fears were allayed.
Barr was perfect under the bright lights of a controversial senate confirmation - maybe too perfect.
Barr said everything right. He would refuse an order by President Trump to fire Mueller without good cause. Barr told the members of the Senate Judiciary Committee that he would remain independent of political pressure if confirmed. “I am not going to do anything that I think is wrong, and I will not be bullied into doing anything I think is wrong,” Barr said.
He acknowledged a warm relationship with Mueller, and he said he didn’t think the Mueller investigation was a “witch hunt.”
At the conclusion of the investigation, with the full support of the presumptive attorney general, Mueller is going to present a report to the attorney general.
During his testimony, Barr said he thought he would not be allowed to release a summary report prepared by Mueller with regard to the special counsel’s decision to prosecute or not prosecute. The Justice Department’s regulations on special counsels dictate that Mueller can give his report only to the attorney general, who decides what will become public.
Listen closely senators, Barr said he interprets that as giving him the power to write his own version for public consumption. According to Bloomberg, Barr said he may write the version of Mueller’s final report that would go to Congress and be made public.
“There are two different reports,” he said. “Under the current regulations, the special counsel report is confidential. The report that goes public would be a report by the attorney general.”
“I will commit to providing as much information as I can consistent with the regulations,” Barr said.
William Barr may support the investigation being conducted by his friend and former colleague Robert Mueller. He has vowed not to interfere without just cause and he is clear that he does not believe that Mueller would be involved in a “witch hunt” - but the American public may never get the full story.
Trump’s first attorney general fell from grace principally because he recused himself from overseeing - and presumably throttling - Mueller’s investigation. In his place the president wants a guy who says “Mueller is an honorable man and I won’t interfere.” A rigorous investigation - unabated by the powers that be - is of little consequence if the full contents are never revealed to the public.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, January 18, 2019

Mangino discusses McStay family murder trial on Law and Crime Network

Watch my segment with Jesse Weber discussing the McStay family murder trial on Law and Crime Network.
To watch the segment CLICK HERE

Judge wrong to dismiss a gun indictment after two hung juries

A Pittsburgh federal judge was wrong to dismiss an illegal gun indictment against a Hill District man after two juries couldn't reach a verdict, an appellate court has ruled in a case of first impression, reported the Pittsburgh Post-Gazette.
The 3rd U.S. Circuit Court of Appeals reversed the March 2017 decision by U.S. District Judge Cathy Bissoon, clearing the way for a possible third trial for Raymont Wright.
Wright, a convicted felon in his mid-40s, had been under indictment since December 2014 on a charge of carrying an illegal gun following a chase and crash near the former Civic Arena in July of that year.
Police said he had a gun after the crash but he suggested they planted it.
He went to trial twice within 10 months and both times juries couldn't come up with a verdict.
After the second mistrial, the U.S. attorney's office wanted to try again but the judge said no, invoking her powers of "inherent authority" as a federal judge.
She dismissed the indictment with prejudice, meaning it can't be filed again, and said she found that Wright's "interest in finality outweighs the government's interest in continuing its prosecution."
She also noted in her opinion, however, that the 3rd Circuit was sure to look at her decision carefully.
It's the first time the issue of a judge's authority to dismiss charges after multiple mistrials has come up in the 3rd Circuit.
Two of three circuit judges, Theodore McKee and Patty Shwartz, said Judge Bissoon abused her inherent authority because there is no evidence of government misconduct.
A third judge, Richard Nygaard, disagreed and said the dismissal was "well within the boundaries" of Judge Bissoon's powers as a judge.
 To read more CLICK HERE

Thursday, January 17, 2019

CA Judge: Police can't use biometrics to unlock mobile phone

A California judge has ruled that the police can’t force people to unlock a mobile phone with their face or finger, wrote Thomas Brewster of Forbes. The ruling goes further to protect people’s private lives from government searches than any before and is being hailed as a potentially landmark decision.
Previously, U.S. judges had ruled that police were allowed to force unlock devices like Apple’s iPhone with biometrics, such as fingerprints, faces or irises. That was despite the fact feds weren’t permitted to force a suspect to divulge a passcode. But according to a ruling uncovered byForbes, all logins are equal.
The order came from the U.S. District Court for the Northern District of California in the denial of a search warrant for an unspecified property in Oakland. The warrant was filed as part of an investigation into a Facebook extortion crime, in which a victim was asked to pay up or have an “embarassing” video of them publicly released. The cops had some suspects in mind and wanted to raid their property. In doing so, the feds also wanted to open up any phone on the premises via facial recognition, a fingerprint or an iris.
While the judge agreed that investigators had shown probable cause to search the property, they didn’t have the right to open all devices inside by forcing unlocks with biometric features.
On the one hand, magistrate judge Kandis Westmore ruled the request was “overbroad” as it was “neither limited to a particular person nor a particular device.”
But in a more significant part of the ruling, Judge Westmore declared that the government did not have the right, even with a warrant, to force suspects to incriminate themselves by unlocking their devices with their biological features. Previously, courts had decided biometric features, unlike passcodes, were not “testimonial.” That was because a suspect would have to willingly and verbally give up a passcode, which is not the case with biometrics. A password was therefore deemed testimony, but body parts were not, and so not granted Fifth Amendment protections against self-incrimination.
That created a paradox: How could a passcode be treated differently to a finger or face, when any of the three could be used to unlock a device and expose a user’s private life?
And that’s just what Westmore focused on in her ruling. Declaring that “technology is outpacing the law,” the judge wrote that fingerprints and face scans were not the same as “physical evidence” when considered in a context where those body features would be used to unlock a phone.
“If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,” the judge wrote.
“The undersigned finds that a biometric feature is analogous to the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.”
There were other ways the government could get access to relevant data in the Facebook extortion case “that do not trample on the Fifth Amendment,” Westmore added. They could, for instance, ask Facebook to provide Messenger communications, she suggested. 
To re more CLICK HERE





Wednesday, January 16, 2019

AG nominee Barr supports special counsel Robert Mueller

"I don't believe Mr. Mueller to be involved in a witch hunt," former attorney general William Barr told the Senate Judiciary Committee during his confirmation hearing as President Trump’s nominee for a second stint as attorney general, reported CNN
Relating what he told Trump about Special Counsel Robert Mueller when the latter was appointed as special counsel, Barr recounted he told the President that the former FBI director is "is a straight shooter and should be treated as such." 
Asked by Delaware Sen. Chris Coons (D) whether he would reject an order from Trump to fire Mueller without what he considered good cause, Barr said he would do so -- and resign his post. (He also said it was "unimaginable" to him that Mueller would do something that would trigger his legal removal.) He made clear he would not allow any editing by the President of the final report put forward by the special counsel.
Barr repeatedly referred to Mueller as "Bob" -- a sign of their long friendship. Barr said he told Trump in June 2017 that "I knew Bob Mueller and how the Barrs and Muellers were good friends and would be good friends when this is all over, and so forth."
To read more CLICK HERE

Tuesday, January 15, 2019

Pennsylvania prison population saw historic drop in 2018

Pennsylvania’s state prison population saw its biggest drop ever in 2018, the fifth consecutive year the number of people behind bars in the state prison system has declined, reported the New Castle News.
The number of people incarcerated in state prison dropped to 47,370 inmates at the end of 2018 – a 1,068 decline from the prior year when there were 48,438 people behind bars in the state Department of Corrections.
The state’s inmate population is down from 51,512 five years ago, corrections data show.
The number of people behind bars has dropped each year Gov. Tom Wolf has been in office.
“We need to focus on the work to make our criminal justice system fairer, more equitable and more focused on rehabilitation,” Wolf said in a statement calling for action on criminal justice reform earlier this month. “I am committed to continuing this important work in my second term,” he said.
Wolf has made criminal justice reform a signature issue. Wolf joined legal groups in rolling out a new program intended to help people with old convictions to get their records sealed to make it easier to get to jobs or rent property.
He said it’s just one step and called on the General Assembly to act on additional reforms.
That includes recommendations from the state’s Justice Reinvestment Initiative aimed at addressing the high cost of incarceration, strengthening county probation programs and fixing sentencing guidelines.
He also called for reforming the post-trial criminal justice system to focus on rehabilitation and preparing inmates to reenter society to reduce the risk of recidivism.
The conservative think tank, the Commonwealth Foundation, on Thursday said that the drop began two years before Wolf took office in 2014.
The state’s first version of the Justice Reinvestment Initiative was signed into law in 2012 by Republican Gov. Tom Corbett.
The drop last year was the biggest yet, according to the Commonwealth Foundation.
“This historic reduction in our prison population should be celebrated,” said Nathan Benefield, vice president and COO for the Commonwealth Foundation. “Seven years ago, Pennsylvania enacted a bipartisan corrections reform package that has proven to be an unquestionable success,” said Nathan Benefield, vice president and COO for the Commonwealth Foundation. “We are locking up fewer people while crime rates continue to decline. t’s time for lawmakers to build on this momentum and advance reforms that improve sentencing and parole.”
Like Wolf, Benefield called on the General Assembly to act on the new Justice Reinvestment Initiative reforms.
The state Senate last April unanimously approved the second round of Justice Reinvestment Initiative reforms. The bills didn’t move in the state House but state Rep. Jim Cox, R-Berks County, has already announced plans to introduce legislation including those reforms in the new legislative session.
To read more CLICK HERE


Monday, January 14, 2019

PLW: Term 'Perpetrator' Weighs Heavily in Drug-Using Mom-To-Be Abuse Decision

Matthew T. Mangino
The Legal Intelligencer
January 10, 2019
The Pennsylvania Supreme Court ruled that a mother who used opioids and marijuana during her pregnancy cannot commit child abuse under the Child Protective Service Act (CPSL), 23 Pa.C.S.A. 6301.
A divided Pennsylvania Supreme Court issued its opinion interpreting the CPSL on Dec. 28.
The case involved a newborn girl who spent 19 days in the hospital, being treated for drug dependence that caused severe withdrawal symptoms. Two weeks before the girl was born the mother, known as A.A.R., tested positive for opiates, marijuana and benzodiazepines.
The decision comes in the shadow of an opioid crisis in this country. The latest statistics show Pennsylvania leading the nation in fatal overdoses, with about 5,400 in 2017.
In fact, the opinion in In the Interest of L.J.B., No. J-57-2018 authored by Justice Christine Donohue acknowledged in a footnote that Gov. Tom Wolf took the unprecedented step of proclaiming the heroin and opioid epidemic a statewide disaster emergency.
According to Reuters, opioid abuse among pregnant women affected 6.5 out of every 1,000 delivery hospitalizations in 2014, up from 1.5 per 1,000 in 1999, as tracked by the U.S. Centers for Disease Control and Prevention.
In this case, A.A.R. was in jail. She was released and relapsed into drug use, before she learned she was pregnant. She sought treatment for her addiction but relapsed again.
L.J.B. was born on Jan. 27, 2017. According to Donohue’s opinion, the child immediately displayed signs of neonatal abstinence syndrome. Clinton County Children and Youth Social Services took L.J.B. into emergency protective custody after her birth, and accused A.A.R. of child abuse.
The Juvenile Court ruled that L.B.J. was a dependent pursuant to the CPSL but conducted a separate hearing to determine if A.A.R.’s drug use while pregnant was child abuse.
The Juvenile Court held that Children and Youth Services “cannot establish child abuse in this matter on the actions committed by mother while child was in fetus.”
The Superior Court reversed agreeing that the CPSL does not include abuse of a fetus or unborn child, but concluded that the “Mother’s drug use is a recent act or failure to act under 6303 (b.1) and (5) of the CPSL.”
The Supreme Court took the case as a matter of first impression.
This is not a criminal matter. Pennsylvania law already makes clear that mothers cannot be prosecuted for harming their fetuses.
Crimes against the Unborn Child Act, 18 Pa.C.S.A. 2601 makes it a crime to injure or kill an unborn child. However, the law also establishes three exceptions: it cannot be used to prosecute people who perform legal abortions, medical personnel or pregnant women for harming their own unborn children.
According to the Pittsburgh Post-Gazette, when legislators were debating the bill before it became law in 1997, opponents worried it would lead to the prosecution of pregnant women—but supporters said that could not happen because of the protection written into the law. The law has been used regularly when a pregnant woman’s unborn child is injured or killed by a third party.
“These statutes are not intended to prosecute pregnant women, as you can clearly see from the way the statute is written,” Sara Rose, staff attorney for the American Civil Liberties Union of Pennsylvania, told the Post-Gazette in 2017 when prosecutors in Butler County sought to prosecute a pregnant woman under the statute. “I don’t see, based on the plain language of the statute, how you can charge a pregnant woman.”
At issue was whether Kasey Rose Dischman could be convicted of aggravated assault of her unborn child for overdosing in June 2017 when she was 30 weeks into her pregnancy. Dischman went into cardiac arrest and her child had to be delivered prematurely.
Butler County Judge William R. Shaffer dismissed that charge after finding that, although Dischman is accused of committing a “senseless, selfish and heinous act,” the law does not allow the aggravated assault count to be applied in cases where the victim is the mother’s own unborn child.
The district attorney appealed to the Superior Court.
Superior Court Judge Carolyn H. Nichols concluded that Pennsylvania does not criminalize the prenatal acts of mothers-to-be. As a result, a pregnant woman who overdoses on illegal drugs cannot be prosecuted for assaulting her unborn child.
In A.A.R.’s appeal the definitions as set forth by the legislature in the CPSL are crucial. Unlike the Crimes Against the Unborn Child Act, 18 Pa.C.S.A.2601 as read in conjunction with the Abortion Control Act 18 Pa.C.S.A., 3220 the CPSL does not include a fetus or unborn child in its definition of “child.”
A child is defined as any person under the age of 18. The CPSL defines “child abuse” as “intentionally, knowingly or recklessly … causing bodily injury to a child through any recent act or failure to act.” A “perpetrator” of child abuse is defined as—for purposes of this case—a parent of a child, 23 Pa.C.S.A. 6306 (a) (1).
The Supreme Court zeroed in on the definition of “perpetrator.” L.J.B.’s mother contended that pursuant to the clear language of CPSL, she did not commit “child abuse” while she was pregnant because there was no “child,” and she therefore was not a “perpetrator.”
A “perpetrator” is “a person who has committed child abuse under the CPSL,” 23 Pa.C.S.A. 6303 (a). As the parties in this case agreed, the CSPL’s definition of a “child” does not include a fetus or an unborn child.
Although A.A.R. used illegal drugs while pregnant that caused bodily injury to L.J.B. she was not a perpetrator of child abuse. A.A.R. was not yet a parent and A.J. B. was not yet a child.
As a result, according to the Pennsylvania Supreme Court, a mother cannot be found to have committed child abuse against a child based on her illegal drug use while pregnant because she was not a perpetrator at the time of the drug use.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll,” 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
To visit the column CLICK HERE

Sunday, January 13, 2019

Mangino discusses Hoerig murder trial on WFMJ-TV21 Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today regarding the Claudia Hoerig murder trial to begin tomorrow in Trumbull County, Ohio.  To watch the interview CLICK HERE

'I ask you to judge me by the enemies I have made'

Former FBI director James Comey has responded pointedly to President Trump’s recent round of Twitter attacks on him.
Comey posted a quote by former President Franklin D. Roosevelt Saturday, stating: “I ask you to judge me by the enemies I have made.” 
Comey’s message comes just hours after the president began blasting him on Twitter, calling him “Lyin’ James Comey” and “a total sleaze.” 
To read more CLICK HERE

Saturday, January 12, 2019

GateHouse: Pardons are not without limitations

Matthew T. Mangino
GateHouse Media
January 11, 2019
A pardon is and executive act of mercy. American presidents are empowered by Article II, Section 2 of the U.S. Constitution, “to grant reprieves and pardons for offenses against the United States.”
Governors are bound by a litany of state constitutional limitations with regard to how pardons are evaluated and the manner in which they are approved or denied.
California has a unique set of restrictions on the Governor’s power to pardon. Although the state Constitution provides in Article V, Section 8 that the governor’s “power to grant clemency on whatever grounds he or she deems appropriate” is unlimited, an applicant for a pardon with two felony convictions must be reviewed by the California Supreme Court.
Outgoing Gov. Jerry Brown had 10 pardon cases rejected by the Supreme Court in his final year as governor, without comment or explanation by the court.
In January 2011, Kansas Governor Sam Brownback issued an Executive Order replacing the parole board with a “prisoner review board.”
Pardon power in Kansas is vested in the governor pursuant to the state Constitution Article I, Section 7. That power is subject to established legal regulations and restrictions. The governor is required to seek the advice of the Kansas Prisoner Review Board before acting, though he or she is not bound to follow the board’s recommendation.
Pardons, which do not erase a person’s conviction but merely release a person from prison or parole obligations, are not common in Kansas. Former Gov. Kathleen Sebelius, a Democrat, issued only one pardon during her six years as governor. Her replacement, Gov. Mark Parkinson, issued four pardons during his less than two years in office.
Governor Brownback issued one pardon and the current governor Jeff Colyer has yet to grant a pardon.
In Pennsylvania, the governor’s pardon authority derived by Article IV, Section 9 is limited by the Board of Pardons. The board is comprised of the Lt. Governor, Attorney General and three members appointed by the governor.
If a majority of the Board votes in favor of an application, the Board recommends favorable action to the Governor. If less than a majority of the Board vote in favor, the result is a denial by the Board and the application is not forwarded to the Governor.
Life or death sentences require a unanimous vote by the Board to recommend a pardon to the Governor. This changed in 1996 with the election of Gov. Tom Ridge. During the campaign Ridge attacked his opponent Lt. Gov. Mark Singel for recommending a pardon to Reginald McFadden who committed another murder after his release.
The Governor in Pennsylvania, at his discretion, may approve or disapprove any favorable recommendation submitted by the Board of Pardons. The chances of receiving a pardon for a life sentence are rare. Current Gov. Tom Wolf, a Democrat, has pardoned two lifers; Gov. Ed Rendell, also a Democrat, pardoned five and three Republican governors, Ridge, Tom Corbett and Mark Schweiker, collectively pardoned one lifer in 14 years.
The president’s pardon power is exceedingly broad, and just how broad may soon be tested. There are limitations - for instance, the president’s authority only applies to actions that have already occurred, not those that are ongoing.
According to Sam Berger at Just Security.com, the Supreme Court has ruled the president “shall have power to grant reprieves and pardons for offences against the United States.” While the Court recognizes that the pardon power is broad, it explicitly states that pardons only apply to an offense “after its commission.”
Conspiracy is an ongoing crime. As Berger notes, an obstructive pardon for actions related to a conspiracy involving the president would not eliminate legal liability.
There are two reasons a pardon granted in the midst of a conspiracy investigation may be unlawful. First, a pardon would be a continuation of the crime, and thus the pardon itself would be an invalid attempt to pardon actions that were ongoing. Second, the pardon would be a new conspiracy and thus a new crime.
In either case, there are limitations on the president’s ability to grant a pardon, just as there are limits on the manner in which individual governors can extend mercy to those convicted of a crime.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, January 11, 2019

Kansas permits crime victims to hire attorney to assist DAs

Over the objections of defense lawyers, and despite his own misgivings, a Wyandotte County, Kansas judge said he must allow private attorneys to assist in the prosecution of a man charged with killing two sheriff’s deputies.
Antoine Fielder, 30, is charged with capital murder in the fatal shooting last June of Wyandotte County deputies Theresa King and Patrick Rohrer as they were escorting him back to jail after a court hearing in a robbery case.
According to the Kansas City Star, under Kansas law, crime victims can pay for lawyers to assist prosecutors as “associate attorneys,” and the families of Rohrer and King have hired married law partners Tom Bath and Tricia Bath.
Because Fielder faces a possible death sentence, he is being represented by attorneys from the Kansas Death Penalty Defense Unit, who objected to what they termed “interference” in the case.
They argued that the Kansas law that allows the hiring of private attorneys to assist in criminal prosecutions has never been used in a death penalty case.
They said it raises “novel constitutional, statutory and ethical issues.”
“Counsel for Mr. Fielder is not aware of any direct authority addressing the constitutionality of private prosecutions in obtaining sentences of death,” the defense said in court documents.
In their written response to the defense objections, the Baths noted that the Kansas Supreme Court has upheld the idea of crime victims hiring private attorneys in numerous cases.
And while it has never been used in a capital case, there is nothing in the law that excludes it.
At a court hearing, defense attorney Jeff Dazey noted that the law has been on the books in Kansas since the early 20th century, “long before the modern era of the death penalty.”
A spokesman for Wyandotte County District Attorney Mark Dupree said he had met with the Baths before they entered the case and had no objection to their participation.
At Wednesday’s hearing, Tricia Bath said they would be operating under the direction of Dupree’s office.
She noted that both she and Tom Bath have represented defendants in death penalty cases and are familiar with the rules and ethical requirements for attorneys in death penalty cases.
“The law is clear,” she argued. “We get to be here and the victims get to have an official representative here.”
District Judge Bill Klapper said that, while he finds the inclusion of private associate prosecutors in the case “inherently problematic,” he is bound by Kansas law that mandates they “shall” be allowed.
The judge did order that the Baths will not have any role in the case until after the Feb. 1 preliminary hearing.
To read more CLICK HERE


Thursday, January 10, 2019

TCR: Risk Assessment: Should Youth Be a Factor in Judging ‘Dangerousness’?

Matthew T. Mangino
The Crime Report
January 9, 2019
This summer, the Pennsylvania Commission on Sentencing is expected to roll out a “risk assessment” tool for use by judges when sentencing offenders, fulfilling a mandate first commissioned by Gov. Ed Rendell back in 2010.
Incorporating risk assessments into sentencing in Pennsylvania has been a long time coming.
Giving judges more information about an offender’s background and his or her propensity for future violence is thought to enhance a jurist’s ability to make informed decisions that incorporate the core elements of sentencing: appropriate punishment, public safety and rehabilitation.
The Commission’s report would include an assessment with a scale from 0 to 18 points. The higher the score, the more likely the person being sentenced will reoffend.
An offender’s criminal record has long been a part of the sentencing process. In Pennsylvania, current sentencing guidelines take into consideration an offender’s criminal record. The longer the criminal record, the more severe the range of potential sentences.
But according to PublicSource.org, in addition to the information that has routinely been available to judges—prior record, seriousness of the offense and guidelines—the Commission on Sentencing is weighing whether judges should also be provided with a report to predict the offender’s future dangerousness.
Predicting the likelihood that an offender might offend again is highly controversial.
“This would represent a shift in punishing a person for what they did do, to what a person might do,” Mark Houldin, policy director for the Defender Association of Philadelphia, told Fox43 News in Harrisburg, Pennsylvania. “And we think that is incredibly dangerous.”
Adding to the concern is one of the factors that would be part of a tool assessing future “dangerousness.”
Age.
Under the proposal being considered in Pennsylvania, anyone under age 21 gets five points. Those between 21 and 25 get four. The points lessen as the offender ages until, at age 49, the offender is not assessed any points based on age.
An 18-year-old gets five points right out of the gate. If an offender scores fewer than four points on the assessment, he or she would be considered a low recidivism risk. If the offender scores 10 or more points, the offender would be considered a high risk to reoffend. An 18-year-old would never be considered a low risk, and would be halfway to being a high risk without even considering any other factors.
Using age as a measure to assess the likelihood of future criminal behavior seems to fly in the face of other recent reforms in the criminal justice system.
According to The Marshall Project, a number of state courts and lower federal courts have begun to consider whether people between the ages of 18 and 21—the period psychologists now call “late adolescence”—should have the same kind of special consideration that juveniles get before they are sentenced.
In 2005, the U.S. Supreme Court ruled that no person under the age of 18 shall be sentenced to death. 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.
See also subsequent Court rulings in 2009 and 2011.
The Supreme Court has never extended those protections beyond the age of 18.
The status of young adults is especially confusing in Pennsylvania. A court last year considered an appeal from a woman who was sentenced to mandatory life without parole after serving as a lookout, at age 18, during a botched robbery that ended in murder.
The Superior court rejected her appeal, but called 18 an “arbitrary legal age of maturity,” and said an “honest reading” of the Supreme Court’s ruling would require courts to reconsider it. The Superior Court En Banc reheard the matter in October.
The Philadelphia Inquirer reported that some of the full panel of judges expressed concern that “someone a day over 18 and someone a day under 18 are treated differently,” and suggested the matter deserved closer examination.
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.”
In Pennsylvania, the significance of “late adolescence” appears to be very different if one is assisting a judge in sentencing as opposed to reviewing a sentence already imposed.
The Commission on Sentencing has scheduled a series of hearings to get public feedback from social scientists, criminologists, practitioners and activists.
Rethinking incorporating age into the assessment tool for “dangerousness” should be part of the debate.
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 Crime Report CLICK HERE


Wednesday, January 9, 2019

California Supreme Court rejected outgoing governor's clemency actions

In March, 2018 the California Supreme Court published a remarkable order, signed by all six sitting justices, intended to clarify its role in reviewing acts of clemency by the governor.  This interesting, nine-page administrative order details the history of California’s peculiar restrictions on the pardon powers of our governors,  and clearly states that the court does not review the cases on their merits, but confines its overrides to cases “that represent an abuse of power.”
No definitions, no rational standards, and only a single precedent are provided, but respect is expressed for the executive’s “power to grant clemency on whatever grounds he or she deems appropriate” and for separation of powers. The order was created by the court for the court, not the result of a lawsuit or appeal.
As expected, Gov.Jerry Brown has been more generous with pardons and commutations in his final year, and for the first time since 1930, the court has intervened in 10 cases to reject Brown’s decision—or in the legalese, it “declines to recommend” the actions.  If we hold the court to its own standards in the March order, we must conclude that it found that Gov. Brown has abused his power.  I submit that the justices are abusing their discretion in a secretive process that leaves the public to speculate about their motives.
Why, in the most disturbing case, did the court overrule the governor’s pardon of Borey Ai, who won parole in 2016, and is now subject to mandatory deportation to Cambodia, the nation his parents fled before he was born?  Why did the court consider Brown’s reduction of sentences — not immediate releases — for a number of second-degree murder convictions to meet the vague standard of “abuse of power”?  Why did the court OK the pardon for Rod Wright, the former Democratic state senator convicted for lying about living in his district?  And how do these cases compare to Gov. Arnold Schwarzenegger’s commutation for the son of former Assembly Speaker Fabian Nu├▒ez?
The court has agreed to release the sealed documents from the Wright case, so we can hope to learn more about it.  The court should be fully transparent in all of these cases and articulate clear standards to the public and clemency petitioners.  It must explain exactly what factors that the governor used to pardon ex-convict Borey Ai that amounted to an abuse of power, requiring their intervention and essentially deciding in favor of Ai’s deportation.
Leaving it to legal experts to comment on separation of powers issues, I do see a major conflict of interest, as the court controls the broken process that led these convicts to seek clemency in the first place.  We can be sure that almost every one of them has brought numerous appeals that reached the court, and they went to the governor as a last resort.  Then, at the final stage, the court cherry-picked 10 of them for rejection with no explanation so far. Did the ghost of Rose Bird provoke the justices to protect their tough-on-crime image?
To read more CLICK HERE

Monday, January 7, 2019

Nevada death row inmate who demanded execution commits suicide

A Nevada death-row inmate whose execution was twice delayed over lethal injection concerns has been found dead by an apparent hanging, corrections officials told the Huffington Post.
Scott Dozier, 48, who was convicted of murder twice, was found dead alone in his cell at Ely State Prison on Friday afternoon, a spokeswoman for the Department of Corrections said in a statement.
Dozier, who had long argued for his execution amid delays, had been on death row for 11 years for the deaths of his methamphetamine drug trade associates, Jeremiah Miller, who was killed in 2002, and Jasen Green, whose remains were found in an Arizona desert in 2001.
He was last scheduled to be executed by a lethal cocktail of drugs in July, but the procedure was halted after New Jersey-based pharmaceutical manufacturer Alvogen filed an emergency lawsuit. The company’s sedative midazolam was to be used in the procedure, but it argued that it didn’t want its product used over concerns that the execution could be “botched,” following past issues with lethal injections.
This postponement followed a similar one made in November 2017 over concerns that another drug could cause extreme suffering if the other drugs in the cocktail were not administered properly.
His former attorney, Clark Patrick, said he was heartbroken over news of the suspected suicide, describing Dozier as a friend whom he planned to visit later this month with his wife. up to the day's
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“It is sad that it has come to this because the state couldn’t live up to their sentence,” he told the Las Vegas Review-Journal. “If this isn’t a reason for the Legislature to eliminate the death penalty in 2019, I don’t know what is.”
Giancarlo Pesci, who prosecuted Dozier in the Miller case, also told the Review-Journal he felt sad for both Miller’s family and Dozier’s over how long his sentence had been drawn out.
Dozier was placed on suicide watch multiple times after his executions were delayed and had spoken out against the judge’s decision to halt his death.
 “Life in prison isn’t a life,” he told the Review-Journal in 2018. “This isn’t living, man. It’s just surviving. ... If people say they’re going to kill me, get to it.”
He made a similar plea to a state court judge following his postponed execution in 2017.
“I’ve been very clear about my desire to be executed ... even if suffering is inevitable,” Dozier said, according to The Associated Press.
To read more CLICK HERE

Sunday, January 6, 2019

DOJ will not retract errors in report on immigration and terrorism

The Justice Department has acknowledged errors in a controversial report issued last year that implied a link between terrorism in the U.S. and immigration, but officials have declined to retract or correct the document, according to  the Washington Post as reported by The Crime Report. Released by the Justice and Homeland Security departments, the report said that 402 of 549 individuals — nearly 3 in 4 — convicted of international terrorism charges since the Sept. 11, 2001, terrorist attacks were foreign-born. It was written in compliance with President Trump’s March 2017 executive order halting immigration from six majority-Muslim countries.
Critics expressed alarm at what they considered misleading data presented without context. They called it an attempt to misuse law enforcement agencies to advance a political agenda in opposition to immigration. Several government watchdog and civil liberties groups sued the two agencies, seeking a retraction or correction under the Information Quality Act. The agencies refused. Now, the Justice Department has told the groups it will not retract or correct the document. Rather, “in future reports, the department can strive to minimize the potential for misinterpretation,” said DOJ official Michael Allen. It was a rare DOJ admission that its reporting may have misled the public. One flaw the Justice Department acknowledged was the report’s assertion that between 2003 and 2009, immigrants were convicted of 69,929 sex offenses, which “in most instances constitutes gender-based violence against women.” Actually, the nearly 70,000 offenses spanned a period from 1955 to 2010 — 55 years, not six; the data covered arrests, not convictions; and one arrest could be for multiple offenses. Critics decried the report’s inclusion of eight “illustrative examples” of foreign-born individuals out of a pool of 402 convicted of international terrorism. Allen wrote that, “On reconsideration, the department acknowledges that a focus on eight seemingly similar ‘illustrative examples’ from a list of more than 400 convictions could cause some readers of the report to question its objectivity.”
To read more CLICK HERE

Saturday, January 5, 2019

Mangino on Law and Crime Network

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

GateHouse: Three names dominate modern national elections

Matthew T. Mangino
GateHouse Media
January 3, 2019
The passing of former President George H.W. Bush marked the loss of the patriarch of a political family intimately intertwined with an unprecedented era in American presidential history.
Three names have dominated national politics in the second half of the 20th century and now the 21st century. Each of those candidates had a unique impact on the criminal justice system as well.
Only four national elections since 1952 did not have Nixon, Bush or Clinton on the national ticket. One of those national elections had a primary that came down to the wire, narrowly preventing one of those names from once again being on the national ticket.
In 1952, a young California Senator named Richard M. Nixon joined Dwight D. Eisenhower as the Republican candidates on the national ticket. Nixon won re-election as vice-president in 1956. In 1960, Nixon won the GOP presidential nomination and lost the election to JFK. However, Nixon was not done.
He made a political comeback in 1968 beating Hubert H. Humphrey in the presidential election and winning a resounding re-election in 1972.
When Richard M. Nixon was making his second bid for president he introduced campaign operatives to the concept of crime as a divisive, hot-button issue. At the time, race relations were tenuous, at best, and Nixon knew it. Crime control became a surrogate for race control.
Nixon resigned from office, in disgrace, in 1974.
Soon after Nixon’s departure President Gerald R. Ford had to choose a VP. Although Nelson Rockefeller became vice-president, a new name emerged during the search - George H.W. Bush, a former House member who was then chairing the Republican National Committee.
In 1980, George H.W. Bush joined the GOP ticket with Ronald Reagan. Bush was again the vice-presidential nominee in 1984. Bush spent two terms as vice president before being elected president in 1988.
Bush’s opponent in 1988 was Massachusetts Governor Mike Dukakis. A political newcomer put Dukakis’ name in nomination at the Democratic National Convention in Atlanta - Arkansas Governor Bill Clinton.
Bush put race front and center during his campaign. The GOP ran a commercial depicting intimidating-looking African American men walking in and out a revolving prison door. The commercial assailed Dukakis for his support of a weekend furlough program that released convicted killer Willie Horton who committed a rape and robbery while on furlough.
The “newcomer,” Clinton, defeated Bush in 1992 and won re-election in 1996. Clinton was a novelty at the time, a Democrat who supported the death penalty. He even returned from the campaign trail to oversee an execution in his home state, further bolstering him as a “tough on crime” candidate.
In 2000, George W. Bush avenged his father’s loss, beating Clinton’s vice president Al Gore in one of the closest elections in American history. When it came to the death penalty, Bush was not going to be out done by the man who beat his father. Bush presided over 152 executions as governor of Texas, at the time, more than any other governor in U.S. history.
“W” was re-elected in 2004. In 2008, none of the three names that had dominated politics appeared on the national ticket, but Hillary Clinton, Bill’s first lady, fought Barack Obama for the nomination all the way to the national convention. Obama was ultimately elected president.
In 2012, former Florida Governor Jeb Bush - H.W.’s son and W’s brother - toyed with running for president but declined. He did run in 2016 and left early as his campaign failed to gain traction.
Hillary Clinton won the 2016 Democratic nomination only to be upset by GOP nominee Donald Trump.
Clinton came under attack during the campaign for her support of her husband’s tough on crime rhetoric. She was confronted with a quote about young “super-predators” and attacked for fueling the high incarceration rates of African American men and women.
And the beat goes on - Hillary Clinton’s name is often mentioned as a challenger to Trump in 2020.
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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