Sunday, March 31, 2019

Defendant can be compelled to enter password to cellphone

A defendant can be compelled to enter a password to his cellphone as long as prosecutors prove just one thing, Massachusetts’ top court has ruled, as reported by the ABA Journal.
Prosecutors must show beyond a reasonable doubt that the defendant knows the password, according to the Massachusetts Supreme Judicial Court. Prosecutors met that burden in the case of Dennis Jones, who was accused of sex trafficking a woman he met online, the court said. Courthouse News Service and the Boston Globe covered the March 6 decision.
The court said proof of the defendant’s knowledge of the password satisfies the “foregone conclusion” exception to the privilege against self-incrimination. The exception allows defendants to be compelled to disclose information that the government already knows.
The foregone conclusion exception originated in a Supreme Court case involving compelled production of documents in response to a government subpoena. Several federal courts have extended the exception to encrypted electronic devices, including the 11th U.S. Circuit Court of Appeals at Atlanta and the 3rd Circuit at Philadelphia.
The Massachusetts court said that a defendant forced to enter a password discloses only that they know the password and can access the device. Proof that the defendant knows the password is enough, the court reasoned.
A concurring justice, Barbara Lenk, would have gone further by requiring the government to also prove that it knows the existence of relevant, incriminating evidence it expects to find on the device.
“I think that compelled decryption of a cellular telephone or comparable device implicates more than just its passcode; what the government seeks is access to the files on the device, which the government believes will aid in inculpating the defendant,” Lenk wrote.
“The court’s decision today sounds the death knell for a constitutional protection against compelled self-incrimination in the digital age,” Lenk wrote. “After today’s decision, before the government may order an individual to provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device, all that the government must demonstrate is that the accused knows the device’s passcode.”
Despite her misgivings, Lenk concurred in the court’s judgment because prosecutors had demonstrated their knowledge of the existence and location of specific files on the phone.
The supreme judicial court had extended the foregone exclusion exception to compelled disclosure of passwords in a 2014 case involving an attorney who was accused of trying to divert mortgage payoff funds to himself through a sophisticated scheme using his computers.
The new case considered what proof is needed to qualify for the exception.
Prosecutors had argued that they have to show only proof of knowledge of the password, using a clear and convincing evidence standard. The Massachusetts Supreme Judicial Court opted for the higher reasonable doubt standard, finding that it was required by the state constitution’s protections against self-incrimination.
The standard of proof was satisfied in Jones’ case, the court said. Jones had the cellphone in his pants pocket when he was arrested; he had made statements to police characterizing the phone’s number as his number; subscriber information linked the phone to Jones; and the sex trafficking victim described Jones’ use of the phone, the court said.
“Indeed, short of a direct admission, or an observation of the defendant entering the password himself and seeing the phone unlock, it is hard to imagine more conclusive evidence of the defendant’s knowledge of the LG phone’s password,” the court said.
To read more CLICK HERE

Saturday, March 30, 2019

GateHouse: Mueller Report has nothing to celebrate

Matthew T. Mangino
GateHouse Media
March 29, 2019
The report is in - neither the president nor anyone involved in his 2016 campaign for president “colluded” with the Russian government or any Russian organization to interfere in the election. We know this because recently appointed Attorney General William P. Barr released a four-page summary of Robert Mueller’s 300-page report.
Mueller and his team issued 2,800 subpoenas, executed 500 search warrants, obtained 230 orders of court for communication records and interviewed approximately 500 witnesses. Yet, we know little more now than we did 675 days ago when the investigation began.
While President Donald Trump and his supporters celebrate - the report summary gives America a glimpse into a sinister - and maybe successful - effort by a foreign government to influence the outcome of a national election in this country.
There is no time for gloating. The president and his campaign may not have conspired with Russia, but they may have been duped and benefited by the influence of a foreign government.
Barr disclosed in his March 24, letter to Congress that the Special Counsel outlined the “Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with those efforts.”
The alarm bells should be ringing on both sides of the aisle. If we earnestly and enthusiastically accept the four-page summary of this report as they relate to the president, we should equally accept with utter mortification that the Russians - without the help of any American - may have swayed the election.
The Attorney General’s summary suggests that there were two elements to Mueller’s investigation regarding Russian influence. First, an internet disinformation operation - fake news - by a Russian organization to “sow social discord, (and) eventually ... interfering with the election.” Second, the Russian government hacked into the Clinton Campaign and the Democratic Party and disseminated information through WikiLeaks to influence the election.
Senator Lindsey Graham wants to investigate the Obama justice department’s handling of the Clinton email investigation while the Russians hacked Clinton’s emails in order to influence the outcome of the election. Shouldn’t we expect more from our leaders than just settling an old political score? How about looking into whether the Russian government helped elect our current president?
While the president takes a “victory lap,” remember that his Attorney General thought it important to include the following quote from the Mueller Report, ”(W)hile this report does not conclude that the president committed a crime, it also does not exonerate him.”
However, Mueller deferred on the issue of obstruction of justice and the attorney general and Deputy Attorney General Rod Rosenstein ”(C)oncluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish the president committed an obstruction-of-justice offense.”
The Special Counsel’s investigation is closed. Barr acknowledged that Mueller did refer some aspects of the investigation to other offices, but there will be no more indictments from the special counsel.
The Mueller Investigation resulted in the indictment of 34 people - seven of whom have been convicted so far - including some senior members of the Trump campaign.
So what is left? A lot, there are roughly 16 separate ongoing investigations involving Trump, his associates and his businesses. Some of those investigations are headed by Trump appointees.
For instance, the U.S. Attorney’s office for the Southern District of New York is investigating the Trump inauguration committee regarding illegal foreign contribution to the committee. The U.S. Attorney’s Office for the District of Columbia is investigating the WikiLeaks’ release of hacked Clinton campaign emails.
There are also investigations by the Attorneys General of New York, New Jersey and Maryland as well as at least seven ongoing Senate and House committee investigations including the Senate Intelligence Committee and the House Foreign Affairs Committee.
Trump’s victory tour may be a bit premature, but, as with everything else - facts are seemingly unimportant in modern politics.
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 and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, March 29, 2019

Two out of three Californians support LWOP over death penalty

A new poll found that Californians, by a 2-to-1 margin, support sentencing first-degree murderers to life in prison rather than the death penalty, an indication that Gov. Gavin Newsom’s recent decision to impose a moratorium on executions may align with public sentiment against capital punishment, reported the Los Angeles Times.
The poll results could potentially revive efforts to abolish the death penalty in California, including a proposed constitutional amendment being considered in the state Legislature that could land on the 2020 ballot, and embolden Newsom to take additional action against capital punishment. The Democratic governor already is considering prohibiting any new death sentences in local criminal cases.
The Public Policy Institute of California poll found that 62% of Californians, in cases of first-degree murder, favored a penalty of life imprisonment with absolutely no possibility of parole, compared with 31% who favored death sentences. Support for the death penalty in the state has steadily declined since 2000, when Californians were evenly divided on the issue, according to the institute’s polling over that time period.
“This is a case where public opinion continues to shift, and shift support away from the death penalty,” said Mark Baldassare, the institute’s president and chief executive.
To read more CLICK HERE

Thursday, March 28, 2019

NRA is opposed to reauthorizing Violence Against Women Act

The National Rifle Association is opposing the reauthorization of the Violence Against Women Act over provisions designed to keep domestic abusers from having access to firearms, reports the Huffington Post.
The pro-gun group told HuffPost it will issue a a “key vote” alert against VAWA, which warns members of Congress that their vote on the legislation will be scored and included in their NRA rating.
According to a report by the National Journal, some Republicans reportedly wanted the NRA to take a stand so they could have political cover to vote against it
On March 7, a bill to reauthorize and expand VAWA, a landmark domestic violence law, was introduced in the House. The law expired in late December during the partial government shutdownbut was extended just a few more weeks after a short-term spending deal reopened the government.
On top of making improvements in services for victims of domestic and sexual violence, the reauthorization bill aims to tighten gun laws for domestic abusers.
Under federal law, individuals convicted of domestic violence offenses against their spouses or family members are already barred from owning firearms. But the law does not apply to individuals who abuse their dating partners. The VAWA reauthorization bill would fix that, closing the so-called “boyfriend loophole.”
It would also prohibit individuals convicted of misdemeanor stalking offenses ― which experts believe can be a predictor of future violence ― from owning or purchasing firearms.
To read more CLICK HERE

Wednesday, March 27, 2019

Disgraced presidential aide said prison was 'Trump country'

George Papadopoulos, who worked as an aide for President Donald Trump’s 2016 campaign, said he had “street cred” in prison during a 12-day sentence he served in connection with special counsel Robert Mueller’s investigation, reported The Huffington Post. 
Speaking to MSNBC’s Ari Melber, Papadopoulos said: 
“It was Trump country, OK? Oxford, Wisconsin, is Trump country. It’s a population of 800 people. I think the federal minimum security camp I was at was one of the major jobs that people had at Oxford, Wisconsin. Quite frankly, I was treated excellent.”
When asked if the other inmates were Trump supporters, Papadopoulos replied: “Let’s say I had some street cred, meaning that by the time I got in there...”
“George... George... George...” Melber interrupted. “What kind of street cred did you have?”
Papadopoulos claimed the other inmates considered him a fighter ― as in fighting the allegations ― and said: “That counts for street cred when you get into a place like that.” 
“I was dealing with a lot of doctors, lawyers, businessmen who were involved in similar crimes, like Paul Manafort or Michael Cohen,” Papadopoulos added, “so it wasn’t a dangerous place.”
Papadopoulos pleaded guilty in 2017 to lying to investigators about contacts with people linked to Russia. At the time, former Trump adviser Michael Caputo dismissed Papadopoulos as just “a coffee boy.” He has since turned into a critic of the Mueller probe, remained a supporter of Trump and said he has asked the president for a pardon.
To read more CLICK HERE

Tuesday, March 26, 2019

SCOTUS will review nonunanimous verdicts is state criminal trials

The U.S. Supreme Court has agreed to consider whether to overrule a 1972 case that allowed nonunanimous verdicts in state criminal trials, reports the ABA Journal.
The court agreed to decide whether the Sixth Amendment requires unanimity in the case of Louisiana inmate Evangelisto Ramos, who was sentenced to life in prison after being convicted of second-degree murder in a 10-2 jury vote.
The case was based on circumstantial evidence, according to Ramos’ cert petition. He acknowledged having sex with the victim the night before her slaying, but said she was alive when he left her home. Ramos said she had gotten into a car with two other men as he left.
Ramos had first raised the jury issue in a supplemental brief he filed himself in Louisiana state court.
The U.S. Supreme Court ruled in the 1972 decision, Apodaca v. Oregon, that the Sixth Amendment requires unanimous verdicts in federal criminal trials, but not in state criminal trials. Ramos is asking the court to rule that the same Sixth Amendment right applies to the states through the incorporation doctrine.
When Ramos was convicted in 2016, only Oregon and Louisiana allowed nonunanimous verdicts in criminal trials. The states still required unanimity in cases of first-degree murder, the Associated Press reports.
Louisiana voters amended the state constitution to bar nonunanimous verdicts in criminal cases four months ago, according to the Associated Press. The change took effect in January, but it does not apply retroactively.
The ABA House of Delegates adopted a resolution in August 2018 urging states to require unanimity. In 2011, the ABA filed an amicus brief urging the Supreme Court to reconsider the 1972 Apodaca ruling.
The new case is Ramos v. Louisiana.
To rad more CLICK HERE

Monday, March 25, 2019

SCOTUS to review insanity defense under Eighth Amendment

The U.S. Supreme Court agreed to decide whether the Constitution prevents the state of Kansas from curtailing the insanity defense.
The court accepted the case of Kansas death-row inmate James Kraig Kahler, who was convicted of killing four family members in 2009. The cert petition argues Kansas can’t curtail the insanity defense under the Eighth Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s due process clause.
The Kansas insanity law, adopted in 1996, provides that mental disease or defect is not a defense unless it negates a required element of the crime, such as intent to commit murder. Under the 1996 law, inability to know right from wrong is not a defense to a crime, the cert petition says.
“Even a capital murder defendant need not be of sound mind” to be convicted, the petition says. “So long as he knowingly killed a human being—even if he did it because he believed the devil told him to, or because a delusion convinced him that his victim was trying to kill him, or because he lacked the ability to control his actions—he is guilty.”
Kahler was so depressed at the time of the crime that he was disassociated from reality, according to the cert petition. “Although he knew that he was shooting at human beings,” the cert petition says, “his mental state was so disturbed at the time that he was unable to control his actions.”
Kansas is one of five states that do not permit a defendant to assert as a defense that mental illness prevented him from knowing his actions were wrong, according to the cert petition. The other states are Alaska, Idaho, Montana, and Utah.
Before Kansas adopted its current insanity rule in 1996, it had applied the more liberal M’Naghten rule. It provides that a defendant is not criminally responsible if he does not know right from wrong, or if he doesn’t know the nature and quality of his act.
SCOTUSblog notes the cert grant and links to the cert petition, while the Topeka Capital-Journal has February 2018 coverage of the Kansas Supreme Court decision upholding Kahler’s conviction.

Sunday, March 24, 2019

U.S. Supreme Court may consider race in jury selection

Cassandra Stubbs of ACLU wrote the following op-ed for the Pennsylvania Capital-Star:

It has long been settled that prosecutors may not dismiss citizens from a jury because they are black. But can they dismiss them because they supported the verdict in the O.J. Simpson case?
That’s a question the U.S. Supreme Court may soon take up after the California Supreme Court treated a prosecutor’s invocation of a juror’s views on the O.J. Simpson verdict as a “race-neutral” reason that justified the dismissal of a black juror.
If the rule forbidding race discrimination in the selection of jurors is to have any real effect, such reasons cannot be accepted as race-neutral without further inquiry.
As everyone knows, opinions about the verdict in O.J. Simpson’s trial in the late 1990s divided overwhelming along racial lines.
CNN poll following the verdict showed that just 41 percent of white respondents agreed with the verdict, compared with 88 percent of black respondents.
In several capital murder trials in the wake of the Simpson verdict, California prosecutors exploited this racial divide by questioning prospective jurors about their opinions of the trial.
Then they cited black jurors’ acceptance of the Simpson verdict as a “neutral” basis for striking them from the jury, often resulting in trials of Black defendants by all-white juries. Now the U.S Supreme Court will have a chance this spring to decide whether this practice can be squared with the Constitution’s protection against racial discrimination in jury selection.
The question arises in the case of Floyd Smith, a Black California death row prisoner, who was convicted and sentenced to death in 1997 for murdering a white teenager in San Bernardino County. Smith was arrested in Fontana, a town that had an active KKK presence. He was represented by two black defense attorneys, and the defense team was subjected to vandalism and racial threats over the course of the trial.
The prosecution struck all four prospective black jurors from Smith’s jury. When the defense objected to this pattern as racially biased, the prosecutor offered a laundry list of justifications that he said were proof that his objections had nothing to do with the jurors’ race.
Prominent on his list was the fact that the jurors accepted the O.J. Simpson verdict, even though he had accepted multiple white jurors who also agreed with the Simpson verdict.
Under settled case law, if there is sufficient evidence suggesting that a prosecution’s strike of a juror is racially biased, the prosecution must offer a “race-neutral” explanation.
The judge in Smith’s case ruled that the jurors’ approval of the O.J. Simpson verdict was a sufficiently race-neutral explanation to uphold the removal of the black jurors. After his trial and conviction, Smith appealed, and the California Supreme Court, too, accepted the prosecution’s reliance on views about the O.J. Simpson verdict as a “race-neutral” explanation.
The California Supreme Court did not question whether the prosecutor’s use of views about the O.J. Simpson verdict was a proxy for race discrimination. What’s more, this is the fourth time that the court has rubber-stamped the prosecution’s practice of striking black jurors based on their opinions of the Simpson trial.
This is not the only instance of prosecutors removing black jurors in capital cases based on suspect explanations that are closely correlated to race. Lower courts are divided in how they handle and resolve such cases.
A Georgia state court rebuffed a prosecutor’s argument that he struck a juror because of his gold teeth, finding the explanation a proxy for discrimination, but North Carolina and Alabama state courts upheld as race-neutral prosecutors’ reliance on jurors’ attendance at historically black colleges.
Lower courts are also divided about whether residence in a racially identified neighborhood is a “race-neutral” justification. One federal court rejected a California prosecutor’s argument that living in Compton is a race-neutral justification, but another accepted a prosecutor’s objection to a juror’s residence in Newark, which the prosecutor called a “drug trafficking” neighborhood.
The Washington Supreme Court recently adopted a rule declaring a prosecutor’s reliance on a prospective juror’s neighborhood presumptive proof of discrimination.
The U.S. Supreme Court is now considering whether it should take Smith’s case. It should.
The Supreme Court has insisted that it is committed to jury selection free from discrimination. But that commitment is paper-thin if the court permits prosecutors to cover over racially discriminatory strikes of jurors by pointing to such factors as their residence in a black neighborhood or their approval of the verdict in O.J. Simpson’s case.
To read more CLICK HERE

Saturday, March 23, 2019

KDKA's Robert Mangino with Guest Matt Mangino

KDKA-AM's Robert Mangino is joined by former Lawrence County D.A. Matt Mangino, and the two discuss the Michael Rosfeld trial verdict. Listen to the interview CLICK HERE

GateHouse: FBI uses secret tracking device in Cohen investigation

Matthew T. Mangino
GateHouse Media
March 22, 2019
This week the search warrants related to the investigation of Michael Cohen, President Donald Trump’s personal attorney, were unsealed. There is a treasure trove of tantalizing information in the 897 pages of documents released for public consumption.
One issue tucked away in a search warrant executed on April 8, 2018, deserves some attention. The warrant authorized investigators to “employ an electronic investigation technique” to locate two cell phones used by Cohen.
The FBI used a secret cell phone sweeping device to pinpoint Cohen’s location in New York City.
The device, known as a Stingray, tricks cell phones into sending their location information to the device that simulates a cell phone tower. The device tracked Cohen’s two cell phones to a pair of hotel rooms in Manhattan where he was temporarily residing with his family.
According to CBS News, it is not clear exactly what additional information law enforcement obtained from the Stingray. The device is also capable of collecting calls, text messages and even emails sent to and from cell phones.
However, the Stingray doesn’t just collect data from the target of an investigation. The device is capable of gathering information from multiple cell phone users throughout an entire neighborhood, building or, as in this case, a hotel. The increasing use of the Stingray has alarmed privacy rights groups.
If a Stingray is deployed without Court approval, the result may be a violation of the Fourth Amendment right to be free from unreasonable searches.
The Washington Post reported that Courts in Washington, D.C., Maryland, New York and California have ruled that using a Stingray without first obtaining a search warrant violates the Constitution.
The Federal Court of Appeals in Washington, D.C. excluded evidence in a criminal case which utilized Stingray technology without a search warrant. Judge Corinne A. Beckwith wrote, “Locating and tracking a cell-site simulator has the substantial potential to expose the owner’s intimate personal information.”
“A (Stingray) allows police officers who possess a person’s telephone number to discover that person’s precise location remotely and at will,” continued Beckwith.
The United States Supreme Court has reviewed technology used to locate a suspect by tracking the pings from a cell phone to a cell tower. “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information,” wrote Chief Justice John G. Roberts Jr. in 2018.
According to the Washington Post, the Court’s 5-to-4 ruling protects “deeply revealing” records from more than 400 million devices. The Constitution must take account of changes in technology, Roberts wrote, noting that digital data can provide a comprehensive, detailed - and intrusive - overview of private affairs that would have been impossible to imagine not long ago.
The Supreme Court made exceptions for emergencies like bomb threats and child abductions. “Such exigencies,” Roberts wrote, “include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm or prevent the imminent destruction of evidence.” Those are the same emergency exceptions that exist for entering a home or dwelling without a search warrant.
In addition, Cohen investigators wanted the search warrant sealed because of the secret nature of the Stingray. The secrecy is not unique to the Cohen investigation. According to CBS News, the government has, in the past, withdrawn charges against criminal defendants rather than reveal information about the use of a Stingray.
As a result, it’s unknown how often Stingray technology is used. As reported by CBS News, the ACLU found 14 federal agencies that use the device and cataloged Stingray use by 75 agencies in 27 states and the District of Columbia.
Stingray technology is here to stay. Fortunately, the shroud of secrecy has been lifted and courts have begun to formulate appropriate protections.
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 and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, March 22, 2019

Criminal justice cases headed for the Supreme Court

This week, the U.S. Supreme Court granted certiorari in four new criminal-justice cases. Garrett Epps of the University of Baltimore, writing for The Atlantic outlines the four cases:
  • Whether a state can make it a state crime for an undocumented immigrant to use a stolen Social Security number that has been used to find a job;
  • Whether a state can simply abolish the insanity defense in criminal cases;
  • Whether a state jury can convict a criminal defendant by a vote of 11–1 or 10–2, rather than unanimously; and
  • Whether Lee Boyd Malvo, one of the most infamous multiple murderers in American history, must receive a new sentencing hearing because he was a juvenile at the time he participated in the Beltway sniper attacks that left 10 people dead in 2002.
Let’s start with the immigration-crime case. Kansas v. Garcia is a test of statutory language in the Immigration Reform and Control Act (IRCA) of 1986, the last truly comprehensive immigration-reform statute. Among its other effects, IRCA is why, when employees begin a new job, they must file a federal I-9 form attesting that they are American citizens—and attaching documents such as a birth certificate or passport to prove that the attestation is true.
The three defendants in Garcia are undocumented immigrants. They used other people’s Social Security numbers on I-9s when they found work in Kansas, as well as on Kansas state documents required to file taxes or rent housing. Kansas authorities prosecuted all three under state “identity theft” statutes that prohibit use of the documents or identifying numbers of another person to commit fraud or “obtain any benefit.”
At trial, the defendants pointed to the section of IRCA that imposed the I-9 requirement. That section says that the I-9 form, and “any information contained in or appended to such form,” can be used only to enforce specified federal crimes. That meant, they argued, that federal law “preempts” state laws seeking to punish any use of the “information” provided by a worker, even if false. The state’s response was that the language covers only use of the information on an I-9 form itself; it can’t, Kansas said, be read to immunize a worker who uses the same information on a separate form to pay state taxes, gain a driver’s license, or do other business with the state.
Federal preemption is a dense subject. Congress has certain enumerated powers under the Constitution. When passing laws under those powers, it may take specific areas out of state jurisdiction altogether. It does this by saying, “This law preempts state law” (explicit preemption), or by passing a statutory scheme that either directly conflicts with a state statute or is so comprehensive that it “occupies the field” (“implied preemption”). The Kansas Supreme Court concluded that IRCA explicitly forbids states to penalize the use of the same information. That reading isn’t nonsensical; one purpose of IRCA was to make it easier for undocumented immigrants to comply with the law without fearing prosecution. In its appeal to the Supreme Court, however, Kansas points to language in the same section of IRCA that says the statute preempts all state laws punishing employers for any errors on their workers’ I-9 forms. That language, Kansas argues, omits state or local laws punishing the employees themselves.
The U.S. government has filed an amicus brief asking the Court not to find “explicit preemption” in the statute’s language. That reading, it argues, makes no sense: “On respondents’ logic, Kansas could prosecute a U.S. citizen who presents a stolen driver’s license for identity theft even if he also appended that stolen license to his I-9, but a state prosecution of an unauthorized alien in the same position would be expressly preempted.” It asks the Court to go further and hold that the IRCA section doesn’t “implicitly” preempt state laws either, and to avoid any broad constitutional ruling on federal immigration power and state law.
The stakes in the case are fairly high; a green light for this statute would create pressure to pass similar statutes elsewhere.
Kahler v. Kansas also concerns a Kansas statute—one that in essence abolished the age-old “insanity defense” to a criminal charge. For more than half a millennium, English and American courts have held that “insanity” (now a legal, not medical, term) negated a defendant’s criminal responsibility; by the 19th century, that term had been defined as a mental disease that rendered the defendant either unable to understand “the nature and quality” of what he was doing (thinking the victims were actually haystacks rather than humans, for example) or unable to discern that his actions were wrong. (Some courts used to explain this prong by saying that if defendants would still have committed the crime with a police officer standing nearby, they were legally insane—if not, not.)
That defense fell into some popular disrepute after John W. Hinckley, who attempted to assassinate President Ronald Reagan in 1981, was acquitted for reasons of insanity. Since then, legislatures have experimented with ways of cutting back on the traditional rule. Kansas went further than most. In 1996, its legislature passed a law eliminating the defense entirely—unless the defendant was able to show that he or she was so mentally impaired as to be unable to form the “mental state” necessary to violate the law. A defendant unable to form the “intention” to kill could not be convicted, but one who could “intend” to shoot or kill could be, regardless of how distorted the subjective reasons for doing so.
James K. Kahler, the petitioner in this case, went to his ex-wife’s grandmother’s house on Thanksgiving 2009 and killed the grandmother, his ex-wife, and the couple’s two daughters. At trial, his lawyers offered evidence that he was suffering from major depressive and obsessive-compulsive disorders, among others. A defense expert testified that Kahler “felt compelled” to kill and was, for that period, “completely out of control.”
That defense might or might not have satisfied a jury under the old statute, but in Kahler’s case, the jury was permitted to decide only whether Kahler had the intent to kill; they concluded he did and sentenced him to death. The state supreme court rejected his constitutional challenge to the insanity law. Now his lawyers ask the Court to hold that blocking a traditional insanity defense violates the Eighth Amendment’s ban on “cruel and unusual” punishment.
Besides Kansas, three other states—Idaho, Montana, and Utah—have abolished the insanity defense completely; a fourth, Alaska, has truncated the defense so as to allow conviction even if a defendant didn’t understand right from wrong at the time of the crime. In seven others—California, Colorado, Louisiana, Minnesota, Mississippi, Nevada, and Washington—courts have suggested one way or another that the Constitution requires courts to allow such a defense. The “no insanity” states are therefore outliers, and the cert. grant suggests there’s some desire among the justices to bring them to heel. But only four were needed for the grant; a decision for Kahler will require five.
It seems likely that the Court granted cert. in the next case, Ramos v. Louisiana,to reverse. The issue in Ramos has been mooted many times since a widely reviled 1972 Supreme Court decision called Apodaca v. Oregon.
The decision in Apodaca is a shambles. Four justices argued that the Sixth Amendment didn’t require unanimous juries at all, in either state or federal trials; four others wrote that the amendment did require unanimous juries in both state and federal trials. Justice Lewis F. Powell Jr., relatively new to the Court, wrote a bizarre opinion suggesting that the amendment did require unanimous juries in federal trials but that, even though the amendment applied to the states by virtue of the Fourteenth Amendment, it somehow applied in a limited form that did not require unanimous verdicts in state cases.
Nobody today thinks that Powell’s rule makes any sense, but both Oregon and Louisiana have continued to apply their jury rules, and dozens of defendants have begged the high court to revisit the issue. Next term it will. (Louisiana’s voters last November approved a referendum imposing a unanimity requirement for trials beginning on January 1 of this year. The state argues that this moots the case, but a lot of people already in prison in Louisiana think they should have the benefit of the unanimous-jury rule, and will do more hard time if they don’t get it.)
Evangelista Ramos was convicted of second-degree murder by a Louisiana jury in 2016. The jury split 10–2 after hearing mostly circumstantial evidence. After the conviction, Ramos’s appointed counsel argued on appeal that the evidence was insufficient, but in a separate brief, Ramos, proceeding without a lawyer, raised the unanimous-jury issue. The state appellate courts rejected his brief.
Then a Louisiana criminal-justice reform nonprofit called the Promise of Justice Initiative filed a cert. petition for Ramos. On Monday, the U.S. Supreme Court agreed to take up his case. Ramos’s new lawyers cite historical evidence that the non-unanimous-jury rule was adopted in 1898 by a state constitutional convention called with the express purpose of, as the president of the convention put it, “establish[ing] white supremacy in this state.” This evidence, they suggest, shows that the non-unanimous rule was put in place precisely to prevent minority jurors from blocking a white majority’s decision to punish black defendants.
The Court has recently shown some enthusiasm for decisions that the Fourteenth Amendment “incorporates” all the provisions of the Bill of Rights. In 2010, it held that the Second Amendment “right to bear arms” applies full force against the states; last month it reached the same conclusion about the “excessive fines” clause of the Eighth Amendment. Taking down the embarrassing Apodaca rule may be part of that long-term judicial project.
Finally, in Mathena v. Malvo, the Court will decide whether Lee Boyd Malvo, one of the two Beltway snipers, is entitled to a new sentencing procedure. Malvo, who was 17 at the time, roamed the highways of the District of Columbia and Maryland, along with John Allen Muhammad, a quarter century his senior; the two randomly shot and killed 10 people at a distance with a high-powered rifle. Malvo was tried and, in 2004, sentenced to life in prison without parole; Muhammad was executed by Virginia in 2009.
However, in a 2012 decision called Miller v. Alabama, the Supreme Court decided that, in most cases, a mandatory “no parole” sentence violates the Eighth Amendment rights of defendants who were underage at the time of their crimes. Because children can change so much as they mature, the Court reasoned, such prisoners are entitled to a chance to show that they might, someday, be safe to release on parole—and an automatic no-parole sentence denies them that chance. Then, in 2016, in Montgomery v. Alabama, the Court announced that the Miller rule was retroactive. That meant courts must apply it to state cases of defendants who were already convicted, but were seeking review of their sentences.
Malvo sought such review in federal court in Virginia. A federal district judge held that he was entitled to a new sentencing procedure, and the Fourth Circuit affirmed. Virginia had argued that it actually was a “discretionary” sentence—since under long-standing Virginia rules, the trial court could have suspended some or all of Malvo’s life term. The Fourth Circuit concluded that the judge who sentenced Malvo believed that he had no such discretion.
But even if the Virginia rule made the sentence discretionary, the appeals court argued, the Montgomery decision required setting it aside. That’s because, the court said, Montgomery held that a no-parole sentence can’t be handed down unless the sentencing judge specifically finds that the defendant’s “‘crimes reflect permanent incorrigibility,’ as distinct from ‘the transient immaturity of youth.’”
It’s hard to imagine that the justices burn with compassion for Malvo (most of them were living in the region in 2002, when everyone was terrified of being shot at the gas pumps). But the high court almost had to take this case, because the Fourth Circuit’s reading of Montgomery directly conflicts with the Virginia Supreme Court’s. The Virginia court reads the decision to apply only to mandatory sentences—rendering the need for a judicial finding of “incorrigibility” unnecessary. The prospect is that prisoners who appeal to the state court will be turned down under its rule, then immediately petition the federal courts—and win. Something has to give.
All together, these cases show a Court trying honorably to play its role as supervisor of the criminal-justice system—and it may be poised to make things better. In a season of dread, Monday’s order provides reason to hope that some small good news may be on the way.
To read more CLICK HERE

Thursday, March 21, 2019

73 children under 12 accidentally killed by firearms in 2018

Children were killed more than once a week last year under similarly tragic circumstances – a loaded gun and an adult's attention lapse – presenting prosecutors with a vexing question: Who is to blame, and how should that person be punished?
At least 73 juveniles under age 12 were killed last year, roughly the same pace as the previous five years, reported the USA Today. More than the 55 students of ages killed by a firearm in school.
A 2017 USA TODAY and Associated Press investigation of the 152 deaths from 2014 to 2016 found about half ended in a criminal charge, usually of adults who police said should have watched children more closely or secured their guns more carefully. 
Nearly identical cases then and in 2018 had markedly different outcomes. 
A grandfather was charged in Virginia, a father was charged in Georgia and an uncle was charged in Missouri – all with variations on criminal negligence. But elsewhere in Virginia, prosecutors declined to charge parents after two incidents that left 2-year-olds dead on the same day in May. 
Felons are the only consistent exception. Because it’s illegal for anyone convicted of a felony to possess a gun, almost every felon involved in an accidental gun death faces criminal charges.
David Chipman is a former agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives who advises the gun violence prevention group Giffords, named after former U.S. Rep. Gabby Giffords, who survived a mass shooting in Arizona in 2011. Chipman said there should be more focus on preventing the incidents from happening in the first place.
“The law is meant to punish, deter and hold people accountable, but the real issue should be how to prevent something with a fatal outcome,” he said. “So we have to deter that behavior and educate people."
Some in the gun rights community advocate keeping a loaded firearm in reach for protection from a home invasion. Chipman called that scenario a “fantasy.” He said ATF agents and police with children all consider how to safely store firearms – and said he owns a fingerprint-protected gun safe that he can unlock in seconds. 
But in rural pockets of America, keeping a loaded firearm around is commonplace, said Elbert Koontz, mayor of Republic, Washington, a town near the Canadian border. With a population of about 1,000, Republic has averaged about three burglaries a year over the past decade.
Republic made headlines this year for pledging to become a “Second Amendment Sanctuary City” by refusing to enforce a new state gun law, which includes background checks and penalties for not locking up firearms at home.
Koontz said parents should focus on teaching gun safety instead of surrendering their ready access to guns. 
“Where we live, you’re lucky if you can get a cop in 15 minutes,” Koontz said. “If a criminal comes in and breaks down your door, by the time you open up the gun safe and get the ammunition and load your gun, you’re already dead.” 
At least 13 county sheriffs issued news releases stating they would not enforce the Washington law. In February, Columbia County Sheriff Joe Helm called it “unconstitutionally vague” and “unenforceable.” 
Washington Attorney General Bob Ferguson countered with a sternly worded letter to all police chiefs, sheriffs and towns threatening not to enforce the new gun law. He warned that law enforcement agencies that don’t perform the checks could be held liable if someone gets a gun and uses it to do harm.
“Local law enforcement officials are entitled to their opinions about the constitutionality of any law,” Ferguson wrote. “But those personal views do not absolve us of our duty to enforce Washington laws and protect the public.”
To read more CLICK HERE

Wednesday, March 20, 2019

Beltway sniper Malvo's life sentence reaches SCOTUS

The Supreme Court said it will consider whether Lee Boyd Malvo, the teenage half of the Beltway snipers who terrorized the Washington region 16 years ago, may challenge his sentence of life in prison without parole, reported the Washington Post.
Malvo, 34, was a 17-year-old when he and John Allen Muhammad committed what Virginia officials called “one of the most notorious strings of terrorist acts in modern American history.” Between Sept. 5 and Oct. 22, 2002, Muhammad and Malvo killed 10 people and wounded others in sniper attacks in Virginia, Maryland and the District of Columbia.
Muhammad was executed in 2009, but Malvo received sentences of life without parole in Virginia and Maryland.
The Supreme Court’s actions involve the Virginia sentences and will be heard in the term that starts in October.
After a 2003 trial in which Malvo was convicted of shooting FBI analyst Linda Franklin outside a Fairfax County Home Depot store, a jury decided against the death penalty. Instead, it recommended life imprisonment without the possibility of parole.
Since then, the Supreme Court’s jurisprudence on juvenile murderers has changed. It said the death penalty was off-limits for juveniles, and in 2012 said that mandatory life sentences without the possibility of parole were unconstitutional for those under 18.
A divided court found that sentencing a child to life without parole is excessive for all but “the rare juvenile offender whose crime reflects irreparable corruption.” In sentencing defendants 17 and younger, judges must now consider whether a juvenile’s crime reflects “irreparable corruption” or simply “the transient immaturity of youth.”
The court has also said the rulings are retroactive.
Some courts have interpreted the rulings to mean that mandatory life without parole laws are unconstitutional, but that those that offer a judge discretion are not. The Virginia Supreme Court ruled against Malvo.
But a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond said it was clear Malvo deserved a new sentencing: No judge ever considered whether Malvo’s crime represented “irreparable corruption.”
The unanimous panel said that the Beltway shootings “were the most heinous, random acts of premeditated violence conceivable, destroying lives and families and terrorizing the entire Washington, D.C., metropolitan area for over six weeks, instilling mortal fear daily in the citizens of that community.”
But, “Malvo was 17 years old when he committed the murders, and he now has the retroactive benefit of new constitutional rules that treat juveniles differently for sentencing,” the judges concluded.
The Virginia Supreme Court had found the commonwealth’s laws were not incompatible with the U.S. Supreme Court’s rulings because “Virginia law does not preclude a sentencing court from considering mitigating circumstances, whether they be age or anything else.”
There are similar splits around the country.
Malvo’s Maryland sentences were upheld in 2017. A state court judge said that the sentencing judge had specifically taken into account Malvo’s age and other mitigating factors — Malvo was brought illegally into the country by Muhammad, who was 25 years his senior and masterminded the attacks — in deciding he deserved life imprisonment.
That decision is on appeal to Maryland’s highest court. In addition, Malvo has challenged his sentences in federal court in Maryland.
The Supreme Court case is Mathena v. Malvo .
To read more CLICK HERE

Monday, March 18, 2019

Justice Sotomayor raises concern over race in death penalty appeal

The U.S. Supreme Court denied the latest petition from a black Georgia death row inmate who is claiming juror racial bias, prompting an angry statement from Justice Sonia Sotomayor, reported the National Law Journal.
Sotomayor agreed that the denial may have been justified because the latest decision of the U.S. Court of Appeals for the Eleventh Circuit in Keith Tharpe’s case did not turn on the merits of his claim, but rather on procedural issues.
But Sotomayor, who has raised concerns about capital cases in the recent past, said she was “profoundly troubled by the underlying facts of this case.” Sotomayor wrote:
“I therefore concur in the court’s decision to deny Tharpe’s petition for certiorari. As this may be the end of the road for Tharpe’s juror-bias claim, however, we should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.”
Sotomayor recounted the statements made in an affidavit by a white member of the jury, Barney Gattie, who has since died, that “there are two types of black people: 1. Black folks and 2. Niggers” and that Tharpe, “who wasn’t in the ‘good’ black folks category in [his] book, should get the electric chair for what he did.”
Tharpe, Sotomayor noted, has not received a hearing on the merits of his racial-bias claims. Gattie’s statements, Sotomayor wrote, “amount to an arresting demonstration that racism can and does seep into the jury system. The work of ‘purg[ing] racial prejudice from the administration of justice’ … is far from done.”
Tharpe was convicted of murder and two counts of kidnapping in the September 1990 death of Jaquelyn Freeman.
The high court blocked Tharpe’s execution in a per curiam decision in January, asserting that Gattie’s statement “presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.” The court sent the case back to the Eleventh Circuit, over the dissent of Justice Clarence Thomas.
In a column published last month by The National Law Journal, Samuel Spital, director of litigation at the NAACP Legal Defense & Educational Fund, said Tharpe’s petition “is the one thing standing between Tharpe and execution.” He urged the justices to “intervene in Tharpe’s case and prevent the state of Georgia from executing Tharpe before any court has considered the compelling evidence that Tharpe was sentenced to death, at least in part, because he is black.”
Tharpe is represented by Brian Kammer and Marcia Widder of the Atlanta-based Georgia Resource Center.
“Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice,” Widder said in a statement. “What happened in Mr. Tharpe’s death penalty case was wrong. There is compelling evidence that a juror who voted for Mr. Tharpe’s death sentence was influenced by racist beliefs he held about African Americans in general and Mr. Tharpe in particular.”
To read more CLICK HERE

Sunday, March 17, 2019

'Shooting the bird' at police officer protected speech

If you've ever been tempted to make a rude gesture at a police officer, you can rest assured that the Constitution protects your right to do so, a federal appeals court says, reported NPR.
In the sequence of events described by the court, a woman in Michigan, Debra Cruise-Gulyas, was pulled over in 2017 for speeding. The officer showed leniency, writing her up for a lesser violation known as a nonmoving violation. As she drove away, apparently insufficiently appreciative of the officer's gesture, Cruise-Gulyas made a certain gesture of her own. Or as the court put it, "she made an all-too-familiar gesture at [Officer Matthew] Minard with her hand and without four of her fingers showing."
Minard was not amused. He pulled her over again and rewrote the ticket for speeding. Cruise-Gulyas sued, arguing she had a First Amendment right to wiggle whatever finger she wanted at the police.
In a ruling this week, the U.S. Court of Appeals for the 6th Circuit agreed. "Fits of rudeness or lack of gratitude may violate the Golden Rule," wrote Judge Jeffrey Sutton for the 3-0 panel. "But that doesn't make them illegal or for that matter punishable."
To read more CLICK HERE

Saturday, March 16, 2019

GateHouse: Driver’s license suspension short-sighted and counterproductive

Matthew T. Mangino
GateHouse Media
March 15, 2019
In 1999, Steve Smith was charged in Pennsylvania with underage drinking. He was 14-years-old. Steve Smith is not his real name, but his story is real and tragic.
The penalty for underage drinking in Pennsylvania includes a driver’s license suspension. Due to Smith’s poor decision as a child he was ineligible for a license when he turned 16. Smith never got a driver’s license, but he drove.
He was convicted of driving under suspension in 2003 and again in 2006. Each time his suspension was extended. In 2013 he was convicted of driving without a license. Earlier this year he was arrested again for driving under suspension.
Now, Smith gainfully employed for more than nine years, married and the father of four children faces six months in jail - 21 years after a youthful indiscretion.
Suspending an individual’s driver’s license for non-driving offenses is short-sighted and counterproductive.
In Smith’s case it was for conduct as a 14-year-old. For some it may be the result of using marijuana, failing to pay parking tickets or being too poor to pay non-traffic fines or court costs.
In Alabama, a federal lawsuit was recently filed challenging the practice of suspending the driver’s licenses of people who cannot pay traffic tickets as a violation of the 14th Amendment by “punishing persons simply because they are poor.”
According to The Associated Press, the federal lawsuit seeks to prohibit the suspension of driver’s licenses for nonpayment of fines. The suit also asks the court to require state agencies to reinstate any driver’s license previously suspended for nonpayment.
A U.S. Department of Justice investigation of the police in Ferguson, Missouri - known for the violent unrest after a police officer involved killing of an unarmed black teen - “found that in Ferguson, a small city with a population of just 21,000, more than 16,000 people had outstanding arrest warrants issued by the court as of December 2014,” with many of those warrants having “nothing to do with criminal behavior.”
A recent forum at the John Jay College in New York entitled “Cash Register Justice” explored the exploitation of the poor to finance criminal justice costs through onerous fines and court costs for otherwise minor offenses.
Research data shared at the forum, suggested that in May 2018, an estimated 7 million Americans had their driver’s licenses suspended because of unpaid fines and fees. According to The Crime Report, 85 percent of Americans drive themselves to work.
Forty-three states have laws that suspend driver’s licenses, revoke licenses, or deny renewals for unpaid fines and fees. Defenders of these practices claim that this is the only coercive tool at their disposal, but The Crime Report points to statistics that say it does not work.
Last year Mississippi stopped suspending people’s driver’s licenses purely because they had not paid court fines and fees. Licenses in Mississippi continue to be suspended for people who do not respond to citations or if a judge holds someone in contempt for failing to pay fines.
A recent California study found “a litany of practices and policies that turn a citation offense into a poverty sentence,” with add-on fees for minor offenses sometimes doubling or quadrupling the original fines. According to NPR, the report says that once a person’s license is suspended, they become even more unable to pay their debts, entering “long cycles of poverty that are difficult, if not impossible to overcome.”
In some states, the court will let an offender spend time in jail in exchange for paying a fine or court costs - a debtor’s prison for those cloaked in poverty and unable to pay.
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 and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, March 15, 2019

California governor imposes moratorium on execution

California Governor Gavin Newsom signed an executive order putting a moratorium on executions in the state, reported Jurist.
In a statement, Newsom explained the decision:
The death penalty has been an abject failure. It discriminates based on the color of your skin or how much money you make. It’s ineffective, irreversible, and immoral. It goes against the very values that we stand for.
This month, Ohio's governor put a halt to all executions due to problems with lethal injection.
The executive order calls for immediate withdrawal of California’s lethal injection protocols and closure of the state’s unused execution chamber.
While the order does not release any current inmates, the governor hopes to commute death sentences and ultimately repeal capital punishment in the future.
To read more CLICK HERE

Thursday, March 14, 2019

Forensic genealogy is being used by police to solve crime

Forensic genealogy exploded into public awareness when Joseph DeAngelo was arrested for the crimes associated with the Golden State Killer case, which involved a dozen murders and more than 50 rapes committed in California between 1976 and 1986. Headlines proclaimed, “A Popular Genealogy Website Just Helped Solve a Serial Killer Cold Case,” and “The Future of Crime Fighting Is Family Tree Forensics.” Relatives of victims breathed sighs of relief that the perpetrator had finally been identified and caught. Law enforcement professionals and dedicated internet sleuths were also excited—not just because long-dormant criminal cases were being solved, but also because of how they were being solved. And by whom.
Forensic genealogy can best be described as a still-nascent technique of forensic science that combines DNA analysis and family-tree building, reported Topic. (The TV pitch would be a cross between the documentary series Forensic Files and Who Do You Think You Are?, in which celebrities explore their family trees.) Its specific alchemy results when the field of genetic genealogy—which uses DNA testing to help people discover and identify their ancestors—is applied to legal and investigative issues, like the tracking down of missing heirs, adoptive parents, and siblings, the assigning of names to the unidentified remains of soldiers, and now the cracking of cold cases.
“You always hear the phrase ‘hiding in plain view.’ That’s what this guy was doing.”
It is also a specialty of Parabon NanoLabs, which has successfully identified more than 30 suspects in cold cases since May 2018, establishing itself as the go-to service for forensic genealogy. The company was originally founded in 2008 by computational scientist Steven Armentrout and chemist Michael Norton to develop products for analyzing the tiniest amounts of DNA and applying them in cancer research, developing new vaccines, and creating novel synthetic drugs. The Department of Defense had funded the initial research that became Snapshot; law enforcement requests came later, with the Fort Wayne police becoming one of Parabon’s earliest clients in 2015.
When I studied forensic science at John Jay College of Criminal Justice in the early 2000s, I toiled—with mixed results, at best—on DNA research that convinced me I was better off far away from the laboratory, writing about crimes rather than solving them. As DNA testing became more sophisticated, gleaning results from microscopic samples that were once thought untestable, I got excited at the possible ramifications with respect to cold cases both famous (Zodiac Killer, anyone?) and unknown.
What also stands out about the rapid rise of forensic genealogy is that the work was, for years, the domain of amateur genealogists. These genealogists toil in archives and databases first for themselves, then for others who enlist their help to solve mysteries and unknowns in their family trees.
Only a handful of these genealogists, however, have the requisite expertise and background needed to resolve cold cases like those that Parabon takes on. Colleen Fitzpatrick, a 63-year-old physicist who coined the term “forensic genealogy” in the mid-2000s, is one of these experts. Fitzpatrick concentrates almost exclusively on unidentified remains, and she most recently cofounded the DNA Doe Project with amateur genealogist Margaret Press. So, too, is Barbara Rae-Venter, 70, the California-based genetic genealogist who worked with the FBI and with various divisions of state law enforcement to pinpoint the identity of the Golden State Killer. (Neither genealogist has worked with Parabon.)
To read more CLICK HERE

Wednesday, March 13, 2019

Arkansas legislature seeks to keep secret lethal injection suppliers

The Arkansas Senate on voted 25-9 in favor of measures to prevent the release of information that could identify manufacturers and suppliers of drugs used during state executions, reported Jurist.
The Senate justified its move to increase drug secrecy by citing a “well-documented guerilla war being waged against the death penalty,” where anti-death penalty advocates pressure pharmaceutical makers to “refuse to supply the drugs used by states to carry out death sentences.” By shielding the details about the drug cocktail used in executions, Arkansas seeks to reduce this pressure and re-establish its access to drugs necessary for lethal injections.
Opponents of the bill are disappointed by the lack of transparency this change would entail. If passed into law, the Arkansas Code § 5-4-617(i)-(l) would be amended to prevent disclosure to requests made under the Freedom of Information Act and in response to discovery under Arkansas Rules of Civil Procedure. The bill would also introduce a new Class D felony for anyone who recklessly shares information that violates this imposed secrecy.
Republican Governor Asa Hutchinson supports this new legislation. The bill now goes to the Arkansas House for consideration.
To read more CLICK HERE

Tuesday, March 12, 2019

WASHPOST: Manafort sentence stiffer than most bank-fraud cases

Paul Manafort’s prison sentence of less than four years on bank- and tax-fraud charges sparked outrage from commentators who said it was too light a punishment for his crimes, reported the Washington Post.
But a review of data for all 452 similar cases nationwide in fiscal 2018 show President Trump’s former campaign chairman received a sentence that was somewhat stiffer than other federal defendants’ prison terms.
The average prison sentence in such bank-fraud cases was about 31 months, roughly 16 months shorter than the 47 months Manafort received for convictions in federal court in Northern Virginia, according to an analysis of court data maintained by Syracuse University’s Transactional Records Access Clearinghouse (TRAC).
But Manafort, who was convicted by a jury in August 2018, fared much better when compared with other defendants who were also convicted by federal juries.
To read more CLICK HERE

Monday, March 11, 2019

Drug, Alcohol, Suicide Deaths in U.S. Highest Since 1999

According to The Crime Report, the number of deaths from alcohol, drugs and suicide in 2017 hit the highest level since the collection of federal mortality data started in 1999, according to an analysis by two public health nonprofits, the Trust for America’s Health and the Well Being Trust reported by the New York Times. The two groups parsed the latest data from the federal Centers for Disease Control and Prevention.  More than 150,000 Americans died from alcohol and drug-induced fatalities and suicide in 2017. Nearly a third — 47,173 — were suicides. The grim statistics are fueled by synthetic opioid deaths. Twenty years ago, fewer than 1,000 deaths a year were attributed to fentanyl and synthetic opioids. In 2017, more than 1,000 Americans died from synthetic opioid overdoses every two weeks, topping 28,000 for the year. Most of the increase occurred in the preceding five years, when such deaths rose tenfold and the opioid epidemic became the leading cause of death for Americans under 55.
West Virginia and New Mexico had the highest number of deaths, the analysis showed, with Mississippi and Texas the lowest. By region, the Northeast had the highest opioid death rates followed by the Midwest. The South’s rate was nearly half that of the Northeast. John Auerbach of Trust for America’s Health said that though doctors and drug companies have been taking steps to control opioid addictions, patients who are addicted to prescription opioids often shift to synthetic ones, like fentanyl, which is 50 times more potent than heroin. Fentanyl has also snaked its way into other drugs like cocaine, Xanax and MDMA, widening the epidemic. Suicides by gun increased 22 percent over the last decade. Guns were used in nearly half of the nation’s 47,173 suicides in 2017.
To read more CLICK HERE

Sunday, March 10, 2019

Don't look for SCOTUS on TV anytime soon

Despite public support for televising Supreme Court hearings, the ban will remain for the foreseeable future and the issue isn’t much of a topic of conversation among the justices, two of them told a House appropriations subcommittee, reported the Washington Post.
Justices Samuel A. Alito Jr. and Elena Kagan both said they thought before joining the court that hearings should be televised. But Alito said it was the collective agreement of the court that attorney grandstanding would be “irresistible” and undermine “our paramount function, which is to decide cases in the best possible way.”
He said he knew that view was not popular.
“I recognize most people think that our arguments should be televised,” he said. “Most of the members of my family think the arguments should be televised.”
 The question of whether the justices should televise hearings of their oral arguments is a perennial issue, and subcommittee chairman Rep. Mike Quigley (D-Ill.) gently pursued it.
“Most Americans have no idea how Supreme Court proceedings even work,” Quigley said, adding it was impossible for most to attend oral arguments, even though they are open to the public. But he acknowledged there was little Congress could do to force the issue on an equal branch of government.
“Clearly, it’s your decision,” he said.
While the issue animates others, it does not appear to consume the court. Kagan said the justices as a group have not discussed it since she joined the court in 2010.
Kagan said that when she observed the court as President Barack Obama’s solicitor general she thought it would be good for the public to see what she saw.
“It was thoughtful and it was probing and it was obvious that the justices really wanted to get things right,” Kagan said. “And it’s no small benefit if the American public were able to see that.”
But she now believes justices might “filter” themselves if they worried that playing devil’s advocate during arguments might be interpreted in a video clip as being biased.
If seeing the court at work “came at the expense of the way the institution functioned, that would be a very bad bargain,” she said.
Cameras are ubiquitous in state supreme courts, and many federal appeals courts allow them. Those who support more transparency say none of the problems the justices imagine have come to pass.
“It’s a bit disingenuous for Justices Alito and Kagan to state calmly, in front of several video cameras and a dais full of attorneys, that cameras in their courtroom would somehow impact the tone of their hearings, especially since concerns over grandstanding haven’t proven true in other appeals courts that do allow video,” said Gabe Roth of Fix the Court, one of the groups that favor cameras.
Instead, he said, showing the court at work “would do wonders to correct the American people’s often biased perception of our nation’s top court.”
To read more CLICK HERE