Thursday, May 23, 2019

Furor continues over SFPD raid of journalist's home

San Francisco police chief  William Scott addressed reporters hours after police agreed in court to return property seized from journalist Bryan Carmody in raids aimed at uncovering the source of a leaked police report into the unexpected death of the city’s former elected public defender, Jeff Adachi, reported The Associated Press.
Tensions are high in the case, which has alarmed journalism advocates and put pressure on elected leaders in the politically liberal city to defend the press.
Authorities believe a police department employee was involved and had contact with Carmody.
“We believe that that contact and that interaction went across the line. It went past just doing your job as a journalist,” Scott said.
He added: “This is a big deal to us, as well it should be. It’s a big deal to the public. It’s a big deal to you all.”
Media organizations across the country criticized the May 10 raids as a violation of California’s shield law, which specifically protects journalists from search warrants. The Associated Press is among dozens of news organizations siding with Carmody and seeking to submit a friend-of-the-court brief.
The case will soon return to court. Carmody’s attorney and media organizations have asked to unseal warrant materials and revoke the search warrants. San Francisco Superior Court Judge Samuel Feng has not ruled yet on those requests, but he set deadlines for further filings.
The editorial board of the San Francisco Chronicle has joined other publications in criticizing city leaders, including Mayor London Breed, for failing to quickly condemn the police actions. A Chronicle report published Monday named supervisors who have not returned messages for comment on the raids.
When they arrived at Carmody’s home, police had a sledgehammer, and they cuffed him for hours. The police chief said Carmody was cuffed because of the possibility he might have firearms in the house.
Breed initially defended the raids but on Sunday posted messages on Twitter saying she was “not okay” with raids on reporters.
District Attorney George Gascon, whose office would normally be responsible for possibly prosecuting Carmody, condemned the police. He said he has not seen the warrants, which are sealed, but he could not imagine a situation where warrants would be appropriate.
“Seizing the entire haystack to find the needle risks violating the confidences Mr. Carmody owes to all his sources, not just the person who leaked the police report,” he said in a Monday tweet.
The police chief acknowledged the uproar, saying that in hindsight the department could have done things differently and will strive to learn from its mistakes.
“We respect the news media,” he said. “We have to own what we own and move forward, and try to get better at what we do.”
In court documents, Carmody has said he is a veteran journalist who is often the first on the scene of breaking news. He provides video news packages to outlets in return for payment.
He said a source gave him a preliminary police report on Adachi’s death that contained unsavory details. Carmody went on to sell copies of the report along with video footage from the scene of the death and information obtained from interviews to three news stations.
The leak infuriated city supervisors. They scolded police for anonymously releasing the report to the press, saying it was an attempt to smear the legacy of Adachi, who was an outspoken critic of police. An autopsy blamed Adachi’s Feb. 22 death on a mixture of cocaine and alcohol that compromised an already bad heart.
People who want to crack down on journalists come in all political stripes, said Jim Wheaton, founder of the First Amendment Project, a public interest law firm.
“They went after him because he’s all by himself,” Wheaton said. “And the fact that he sells the materials that he packages. He puts together a journalism report including documents and sells it. That’s what journalism is.”
To read more CLICK HERE

Wednesday, May 22, 2019

Trump considers pardoning war criminals

President Donald Trump’s reported plans to pardon several U.S. servicemen accused or convicted of war crimes elicited bipartisan criticism in the Senate on Tuesday, reported the Huffington Post.
“I think it’s a terrible idea to pardon someone who is legitimately convicted of committing war crimes. It’s unthinkable,” Sen. Mitt Romney (R-Utah) told HuffPost when asked about the New York Times report.
According to the Times, the White House over the weekend requested the necessary paperwork to issue a pardon for a Navy SEAL accused of war crimes who was turned in by the men who served with him.
Special Warfare Operator Chief Edward “Eddie” Gallagher is charged with firing on civilians in Iraq in 2017 and fatally stabbing a wounded teenage ISIS fighter. He allegedly bragged about racking up civilian kills and threatened members of his SEAL team if they reported him. He has pleaded not guilty.
Others who are reportedly up for a pardon include a former Blackwater security contractor who was found guilty of shooting dozens of unarmed Iraqis and an Army Green Beret accused of killing an unarmed Afghan in 2010.
The Trump administration asked for pardon paperwork on the men by the Memorial Day weekend, according to the Times.
Sen. Joni Ernst (R-Iowa) said she “would have some issues” about the potential pardons when asked about the Times report.
“I just want to make sure we’re doing the right thing for servicemembers as well,” added Ernst, an Army National Guard combat veteran who served in Iraq.
Earlier this month, Trump issued a pardon for former Army 1st Lt. Michael Behenna, who drove an Iraqi prisoner into the desert in 2008, stripped him and fatally shot him. Behenna was convicted of unpremeditated murder and was already serving a reduced sentence when the president pardoned him.
Critics say that presidential pardons of accused war criminals can undermine the military’s ethical code against atrocities and threaten current U.S. servicemembers abroad who could face retaliation.
“Absent evidence of innocence or injustice the wholesale pardon of US servicemembers accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility. Risk to us,” retired U.S. Army Gen. Martin Dempsey tweeted. Dempsey served as chairman of the Joint Chiefs of Staff under President Barack Obama.
Senate Democrats, meanwhile, accused Trump of abusing his pardon power.
“I don’t think presidential pardon powers and especially something as egregious as war crimes should be something done as a political ploy, and that seems like what he’s doing,” said Sen. Tammy Duckworth (D-Ill.), who also served in the Army during the Iraq War.
To read more CLICK HERE

Tuesday, May 21, 2019

One man sits on New Hampshire's death row as the death penalty teeters on the brink of extinction

Michael Addison is the only man on death row in New Hampshire. He spends his days alone in a concrete cell with a mattress, a sink, a toilet, and a tall, narrow window. His visitors are members of his legal team, who file the court documents that constitute his only communication with the wider world, reported the Boston Globe.
But as the state grapples with the likelihood that the Legislature will vote this month to override a gubernatorial veto and repeal the death penalty, Addison looms large on both sides of the debate. He is a black man in an almost all-white state who killed a police officer and father of two, and who was sentenced to death weeks after a white millionaire also facing the death penalty was given life in prison. In the philosophical clash over ethics and justice, Addison is a brutal fact.
 “When we talk about the death penalty in the abstract, there’s a growing movement toward abolition because of concerns about fairness, accuracy, discrimination, and cruelty,” Northeastern University law professor Daniel Medwed said. “But on a granular level, in an individual case, it gets complicated.”
Manchester police Officer Michael Briggs was an hour from the end of his shift in the early morning of Oct. 16, 2006, patrolling the east side of the city on his bike, when the call came in: a gunshot fired during a domestic incident in an apartment. He and his partner pedaled to the scene.
The outcry over Briggs’s death swept New Hampshire. His funeral procession wound for miles through downtown Manchester, thousands of police officers escorting a hearse and a riderless horse into a baseball stadium filled with hundreds of civilians, where, according to local media, his casket was laid on home plate.
His killing sparked heated debate over capital punishment. Then-Attorney General Kelly Ayotte announced she’d seek the death penalty, and legislators earmarked a budget for the case bigger than her office’s entire litigation budget for that fiscal year, legislators said at the time. Then-Governor John Lynch called the killing of Briggs a crime that “strikes at the very heart and fabric of our society.”
The state hadn’t executed anyone since 1939. Two men were sentenced to death in 1959, but their lives were spared when the US Supreme Court struck down state death penalty laws in 1972. The last time the death penalty was sought before Addison was in a 1997 killing of an Epsom police officer, but that case ended in a plea arrangement that allowed the defendant to avoid execution. Execution was rarely pursued and hotly contested when it was.
New Hampshire’s death penalty statute can only be applied to certain types of murders, including the murder of an on-duty police officer or judge, murder for hire, murder connected to a kidnapping, and murder during a rape. Bills aiming to abolish capital punishment have come before the Legislature nearly every session for the past two decades, and at times, repeal advocates have come close to success.
In 2000, the House and Senate both passed legislation to end the death penalty, only to see it vetoed by then-Governor Jeanne Shaheen. In 2014, repeal legislation failed on a tie vote in the state Senate. Last year, current Governor Chris Sununu vetoed a bill identical to House Bill 455.
Today, though, the death penalty seems poised to fall. The House and Senate both passed the current bill, and while Sununu vetoed it May 3, the Legislature appears for the first time to have enough votes to override the veto. The House is expected to vote on it Thursday. If that override passes, the Senate is expected to vote the following week.
The repeal would not be retroactive, and so it would not directly affect Addison’s case, though legal experts and precedent suggest the courts would not allow him to be executed if New Hampshire no longer had the death penalty.
Still, Addison has figured prominently in the public dialogue. When Sununu vetoed the repeal bill, he did so from inside the Manchester Police Athletic League Officer Michael Briggs Community Center, blocks from where Briggs was killed, flanked by police officers and Briggs’s family.
“This is common sense,” Sununu said. “New Hampshire has always exercised great prudence, great responsibility, in its application of the death penalty. I firmly see, along with many folks across this state, this bill is an injustice. Not just to Officer Briggs and his family, but to law enforcement and other victims of violent crime across the state.”
To read more CLICK HERE

Monday, May 20, 2019

George Kelling of "Broken Window" fame has died

“Consider a building with a few broken windows,” wrote James Q. Wilson, a government professor at Harvard University, and George L. Kelling, a criminal-justice professor at Rutgers University, in a 1982 article for The Atlantic. “If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside.” Disorder, in other words, led to serious crime.
Wilson and Kelling posed a revolutionary theory: If the original windows were repaired, the escalating string of crimes that followed might be checked before it began. Kelling died this week; Wilson, in 2012. 
Their theory has been celebrated by some, including former New York City Mayor Rudy Giuliani and former NYPD Chief William Bratton, as the driving force behind a historic reduction in crime in New York City in the 1990s. It’s also been questioned by many sociologists and criminologists, and associated with controversial policing practices such as New York’s “stop and frisk” program. For years, Kelling participated in the debate his work had sparked, clarifying his and Wilson’s reasoning and criticizing some of the ways others applied it. 
, that debate will continue without him. Kelling described their thinking while writing the original article in a 2015 essay titled “An Author’s Brief History of an Idea.” “Although we believed that police should do something about disorder,” he wrote, “at that time we were not sure what—concerned as we were about issues of justice, equity, and racism and limited by the state of police thinking of the time.” They knew that the history of policing in America was rife with abuses of African American communities, he added in a follow-up piece, including the arrests and convictions of black men for minor crimes under the Black Codes. They also knew that their theory would likely ignite controversy, and could lead to accusations of racial profiling, or worse.
To read more CLICK HERE

Sunday, May 19, 2019

Facial recognition under scrutiny in some cities

Facial recognition technology raises fears of a dystopian surveillance state, with vanishing privacy and a high potential for abuse, reports The New York Times. Such concerns led San Francisco this week to ban any use of facial recognition by the police and other city agencies.
But it is also a powerful and efficient tool that, much like DNA analysis, offers a way to bring policing into the modern age and help catch wrongdoers or solve crimes that have gone cold.
It has been used to arrest men accused of child sex abuse, including a fugitive who had fled to Nepal and a man in Oklahoma who had been at large for two decades. It has helped nab a trio of jewel thief suspects and people who the authorities said were trying to enter the country under fake names.
It is difficult to say exactly how many of the nation’s 18,000 police departments use facial recognition or how they deploy it. Some departments have been caught using it without the public’s knowledge, or to search crowds of protesters for people with outstanding warrants.
But since the San Francisco ban, several agencies have come forward to argue that it is counterproductive to forbid any use of what they call a valuable tool that generates investigative leads.
Some departments, including the New York Police Department, have policies that say that a possible match found by facial recognition does not constitute an identification or probable cause for an arrest.
To read more CLICK HERE

Saturday, May 18, 2019

GateHouse: The NRA’s greatest fraud

Matthew T. Mangino
GateHouse Media
May 17, 2019
In 1991, retired Chief Justice Warren Burger, being interviewed on PBS News Hour, described the National Rifle Association’s (NRA) lobbying in support of an expansive interpretation of the Second Amendment like this, “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”
The NRA has taken fraud to a whole new level.
In a battle to take control of the NRA, the organization’s president Oliver North and Chief Executive Officer Wayne LaPierre began to publicly air the NRA’s dirty (and expensive) laundry. For starters, according to the New York Times, LaPierre billed to the NRA $275,000.00 for purchases at the Zegna luxury men’s wear boutique in Beverly Hills. North, who was going to serve without pay, had a contract worth millions of dollars a year. Other payments included $60,000 for advertising on a TV show featuring the rock musician and NRA board member Ted Nugent.
All this while gun deaths of school-age children in the United States have increased at an alarming rate, with 38,942 fatalities among 5- to 18-year-olds from 1999 to 2017, according to a new study by Florida Atlantic University’s Schmidt College of Medicine, reported CNN.
Dr. Charles Hennekens, the study’s senior author said, “It is sobering that in 2017, there were 144 police officers who died in the line of duty and about 1,000 active duty military throughout the world who died, whereas 2,462 school-age children were killed by firearms,”
No one will challenge the gun lobby, even though much of what is touted is based on a false premise. 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.”
In an excerpt from former Supreme Court Justice John Paul Stevens’ forthcoming memoir he writes, “Throughout most of American history there was no federal objection to laws regulating the civilian use of firearms.” He went on to write, when he was appointed in 1975 to the Court, ”(B)oth state and federal judges accepted the Court’s unanimous decision in United States v. Miller as having established that the Second Amendment’s protection of the right to bear arms was possessed only by members of the militia and applied only to weapons used by the militia.”
In Miller, the National Firearms Act was used to convict a man for transporting a 12-gauge shotgun with a barrel less than 18 inches long across state lines. The man neither registered the gun nor had a written order for it, as required by the Act.
The Supreme Court found that the National Firearms Act did not violate the Second Amendment of the United States Constitution.
The Court could not find that a sawed-off shotgun had any reasonable relation to the preservation of a well-regulated militia, and “therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
Miller remained the law until 2008, when by a 5-4 decision the Supreme Court recognized an individual’s right to possess a firearm under the Constitution. Justice Stevens calls the decision “unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.”
E.J. Dionne Jr. of the Washington Post says the NRA’s overzealous support of the Second Amendment is about more than guns, it’s about politics. “The anti-government right knows it can’t sell Americans of modest incomes on its opposition to minimum wages, corporate regulation or more progressive taxes. So they channel their arguments through the gun issue and pretend that this is really a culture war ... ”
It is unquestionably the NRA’s greatest fraud.
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, May 17, 2019

Alabama and Tennessee inmates executed within four minutes of each other

The 6th and 7th Executions of 2019
Michael Brandon Samra and Donnie Edward Johnson were executed within four minutes of each other on May 16, 2019, in Alabama and Tennessee, respectively, reported The Marshall Project.  Samra was convicted of capital murder and was sentenced to death for his role in the 1997 killings of Randy Duke, his fiancĂ©e, Dedra Mims Hunt, and her two daughters, 6-year-old Chelisa Nicole Hunt and 7-year-old Chelsea Marie Hunt. Randy Duke was the father of Samra's friend and co-defendant, 16-year-old Mark Duke.
The adults were shot to death, but court records state Mark Duke and Samra, then 19, slit the girls' throats with kitchen knives after they ran out of bullets.
According to court records, Mark Duke planned the murders after he got into a fight with his father over using a pickup truck. Mark Duke was also convicted and sentenced to death, but that sentence was later changed to life in prison without the possibility of parole because of Mark Duke's age at the time of the crime.
Johnson was sentenced to death for the Dec. 8, 1984 murder of his wife, Connie Johnson, in Memphis.
He suffocated his wife by stuffing a large plastic bag down her mouth in the offices of a camping equipment center where he worked, according to court documents. Johnson then asked an inmate on work-release at the camping center to help him move Connie Johnson’s body into her van.
They moved the body and left the van in a mall parking lot, where it was found the next day.
Donnie Johnson initially told police he was not involved in the murder, but he no longer contests his guilt. Instead, Johnson, now 68, says he should be spared because of how much he’s changed over the course of three decades behind bars.
In a clemency application submitted to Tennessee Gov. Bill Lee, Johnson’s lawyers said he had gone from "a liar, a cheat, a con man and a murderer" to an ordained elder in the Seventh-day Adventist Church "with a flock in prison."
Johnson’s appeal for mercy leans heavily on his Christian faith and his relationship with his stepdaughter, Cynthia Vaughn, the victim’s daughter.
Vaughn initially condemned Johnson for killing her mother, at one point saying, "I want the freak to burn." But after meeting with Johnson in 2012, she forgave him and became the most compelling advocate in his fight to avoid execution. Vaughn has requested a meeting with the governor to make the case for mercy. Lee's Christian faith played a central role in his campaign for governor.
Johnson can decide if he will be executed by lethal injection or electric chair. His attorneys say he is postponing that choice until the U.S. Supreme Court rules on a pending challenge to Tennessee’s lethal injection protocol.
Johnson was initially set to die by electrocution in 2006, but a federal appeals court delayed it days beforehand in order to vet a complaint about the main witness against him. Johnson’s legal team has said they don’t plan to make any other attempts to delay or block his execution aside from the petition for clemency.
To read more CLICK HERE

Thursday, May 16, 2019

The Vindicator: MATTHEW MANGINO | ‘Dysfunctional’ Ohio Parole Board urgently needs parole guidelines

Matthew T. Mangino
The Vindicator
May 15, 2019
When former Ohio lawmaker Shirley Smith resigned from the Ohio Parole Board, she told the Dayton Daily News that the agency was “dysfunctional, secretive and toxic.”
There are approximately 49,500 inmates in Ohio’s state prison system. The parole board has discretion over only about 9,000 inmates. In 1996, the state enacted truth-in-sentencing requiring sentences of a specific term. As a result, the board has discretion over about 3,900 inmates sentenced under the old law and another 5,000 inmates serving life sentences for serious crimes such as murder.
The Ohio Parole Board may only grant parole “if in its judgment there is reasonable ground to believe that ... paroling the prisoner would further the interests of justice and be consistent with the welfare and security of society.”
According to the Daily News, between 2011 and October 2018, the parole board granted release for 1,076 inmates out of the 10,575 interviews it conducted – a parole rate of 10.2 percent.
Video conference
Board members are appointed by the director of the Ohio Department of Rehabilitation and Correction. Board members interview parole-eligible inmates via video conference. Interviews and deliberations are closed, but decisions are public record.
The Ohio Parole Board operates largely behind closed doors. Records are kept secret, full board meetings are open to the public but debate and votes are conducted behind closed doors.
Smith’s departing critique of the board has opened the system, and process, to scrutiny. Criticism has begun to grow from crime victims, inmates and attorneys.
The Department of Rehabilitation and Correction has a new director – Annette Chambers-Smith. The new director is talking about reform. She believes change is needed, including increased transparency.
Gov. Mike DeWine has also jumped into the fray. DeWine would like to add new members to the parole board from different backgrounds, improve training and establish new guidelines weighing inmate misconduct.
Inadequate suggestion
Although the governor’s suggestion to create behavior guidelines is a step in the right direction, it too is inadequate. Ohio needs to establish guidelines to aid board members in making decisions. For instance, the Pennsylvania Board of Probation and Parole, on which I served for six years, uses a regularly normed parole guideline. The instrument is generated for every inmate eligible for parole and being interviewed by a panel of the parole board.
The Pennsylvania parole guidelines consider such things as behavior in prison, program completion, prior supervision history, prior criminal history, future risk and the nature of the offense resulting in the inmate’s incarceration.
Each inmate is provided a numerical score which indicates whether the inmate is “likely” or “unlikely” to be paroled.
The Pennsylvania Board also uses various assessments including risk, sex offending, mental health and drug and alcohol. The guidelines provide uniformity to the board’s decision making. The parole rate for the Pennsylvania Board of Probation and Parole is about 58 percent.
That is not to suggest that Ohio’s parole rate should be comparable. Pennsylvania’s board sees, or votes on, the parole of every violent and non-violent offender in state prison who is eligible for parole.
Hefty sentences
Ohio’s board is only seeing inmates who were incarcerated before truth-in-sentencing was established. The inmates who are left received hefty sentences and many presumably committed serious, violent offenses. The other segment of the prison population Ohio deals with are lifers. The lifers are usually the worst of the worst.
DeWine said his administration is appointing three new members to the board – a public defender, a prosecutor and a state lawmaker.
“The reforms of the Parole Board are a work in progress. There is going to be more besides what we are announcing today,” he told the Daily News, adding that he is working with state lawmakers on additional changes.
Creating parole guidelines would provide consistency and transparency to the parole process in Ohio and would go a long way toward gaining the confidence of the governor, lawmakers and most importantly, 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 and follow him on Twitter @MatthewTMangino)
To visit the column CLICK HERE

Wednesday, May 15, 2019

Study: More school-age children die from guns than police officers and soldiers combined

Gun deaths of school-age children in the United States have increased at an alarming rate, with 38,942 fatalities among 5- to 18-year-olds from 1999 to 2017, according to a new study by Florida Atlantic University's Schmidt College of Medicine, reported CNN.
Indeed, spikes in gun deaths over the past decade amount to epidemics, researchers said.
"It is sobering that in 2017, there were 144 police officers who died in the line of duty and about 1,000 active duty military throughout the world who died, whereas 2,462 school-age children were killed by firearms," said Dr. Charles Hennekens, the study's senior author and an academic adviser at the medical college.
The study, to be published in the American Journal of Medicine, found that children are being gunned down in staggering numbers, with the death rate six to nine times higher than other developed nations.
To read more CLICK HERE

Tuesday, May 14, 2019

SCOTUS fights about last minute execution appeals

An ongoing feud between Supreme Court justices over the application of the death penalty escalated again as the justices filed opinions in two death penalty cases and took the rare step of issuing public explanations to explain their bitter divide, reported CNN. Death penalty cases are sometimes decided late at night, and the conservative justices on the court, especially Samuel Alito, Neil Gorsuch and Clarence Thomas, believe that inmates are engaging in last-minute appeals as a dilatory tactic. That dispute has been playing out in various cases all year long.The orders further unmasked the tension building between the three conservative justices and liberals who think the justices should defer to lower courts when it comes to specific facts in individual death penalty cases, as well as Chief Justice John Roberts and Justice Brett Kavanaugh, who have also sided at times with inmates.
Monday's first case concerned Alabama inmate Christopher Lee Price, who challenged his planned lethal injection execution last month. The court denied his stay of execution in an opinion that triggered a nearly 3 a.m. dissent from Justice Stephen Breyer, joined by three other liberal justices, who asserted the planned sentence would be carried out in an "arbitrary way." Price's death warrant expired before the justices acted.
Thomas, Alito, and Gorsuch criticized their fellow justices for waiting beyond midnight to handle the effort to block the execution, resulting in what will be a seven-week delay.
Thomas said he wanted to "set the record straight," about how things were handled. He called Price's complaints "procedurally unremarkable and constitutionally acceptable," and said the issue is all about timing.
"Of course, the dissent got its way by default. Petitioner's strategy is no secret, for it is the same strategy adopted by many death-row inmates with an impending execution: bring last-minute claims that will delay the execution, no matter how groundless," Thomas wrote. "The proper response to this maneuvering is to deny meritless requests expeditiously."
"Whatever the right answer is to how the Supreme Court should handle 11th hour applications in capital cases, this isn't it," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
"The justices are clearly at loggerheads over what the rules should be when death-row inmates seek to challenge the method of their execution, but the right thing to do is to take a case on the merits, have full briefing and argument, and resolve the matter conclusively -- rather than continuing to snark at each other in separate opinions across different cases," he added.
According to the state, Price and an accomplice wielded a sword and a knife in 1991 and stabbed Bill Lynn, a minister, to death.
Awaiting execution, Price had recently argued that Alabama's lethal injection protocol would cause him severe pain and asked that the state use lethal gas as an alternative. Two lower courts had agreed to put the execution on hold, but after Alabama Attorney General Steve Marshall petitioned the Supreme Court, the majority agreed to lift the stay of execution.
Price is now scheduled to be executed on May 30, the Montgomery Advertiser reported.
Thomas went to great lengths to describe the murder that Price was accused of committing involving a minister, Bill Lynn, who was returning from church, and criticized Breyer for failing to include those details.
Thomas wrote that while "Bill died a slow lingering and painful death," 20 years after the conviction Lee was trying to delay his death.
"It is difficult to see his litigation strategy as anything other than an attempt to delay his execution," Thomas wrote.
The second case involved Patrick Henry Murphy, who argued that he should not be executed in Texas because the state would not allow his Buddhist spiritual adviser to be present in the death chamber.
In that case, the court stayed Murphy's execution.
On Monday, Alito, joined by Thomas and Gorsuch, said he wanted to take the opportunity to explain why "the court's decision to grant the stay was seriously wrong."
Alito, picking up on the same theme from the Alabama case, said that Murphy was "egregiously delayed" in raising his claims.
"By countenancing such tactics, the court invites dispute," Alito wrote.
But Kavanaugh, joined by Roberts, wrote to explain their votes to allow the stay. They noted that under Texas' policy at the time, inmates who were Christian or Muslim could have their spiritual advisers in the room. But inmates of other religions could not.
"That discriminatory state policy violated the Constitution's guarantee of religious equality," Kavanaugh wrote. They noted that Texas has now changed the policy and no longer allows any religious ministers in the viewing room.
"In sum, this court's stay in Murphy's case was appropriate, and the stay facilitated a prompt fix to the religious equality problem in Texas' execution protocol," Kavanaugh said.
To read more CLICK HERE

Monday, May 13, 2019

The rights of the accused vs. The rights of the victim

Andy Hoover, the communications director for the ACLU of Pennsylvania, wrote the piece below as part of a series on Due Process for the Pennsylvania Capital-Star:

It’s accepted as conventional wisdom in civil liberties advocacy to avoid legal terms when communicating with people who aren’t lawyers. Bogging people down with phrases like consent decree, pro bono, and Title 18 is a great way to lose the interest of your audience.
And yet the phrase “due process” is one that resonates. Decades of courtroom dramas in television and film have apparently convinced Americans that due process is something we really should care about.
The simplest definition of due process is this: When the government intends to deprive a person of their liberty – be it by detaining the person or seizing their property or even ending their life by execution – the person has a right to a process in which the burden is on the government to show why such drastic action is necessary.
Unfortunately, the aspiration of due process doesn’t always match the reality that plays out in the legislature and in courts around the commonwealth.
Legislation currently before the state Senate is a prime example. Known as Marsy’s Law, the bill is an amendment to the Pennsylvania Constitution to guarantee certain rights for people who are victims of crimes and for people who allege that they are victims of crimes.
You may wonder why the distinction. Our criminal justice system presumes people are innocent until proven guilty. It is the government’s burden to prove that a crime occurred and that the accused is guilty of committing that crime.
But Marsy’s Law, which will be on the ballot in the general election in November if it is passed by the Senate, establishes constitutional rights for victims and alleged victims even before an accused person has been convicted, thereby putting those rights on a constitutional collision course.
For example, Marsy’s Law gives an alleged victim the right to be notified of pretrial hearings. The person who is accused has a preliminary arraignment hearing shortly after arrest, at which point a court considers whether or not to assign cash bail or detain that person.
What will a court do when the accused person is detained but the alleged victim has not been notified of the hearing? Whose rights will prevail?
If Marsy’s Law passes, the Pennsylvania Constitution will legally recognize people as victims even before the accused has been proven guilty, effectively undermining a lynchpin of our system – the presumption of innocence.
The assignment of cash bail is a well-known but often opaque process in the criminal justice system in Pennsylvania, and it is a proceeding that is already plagued by a lack of due process for people who are accused.
Over the last two years, volunteers and staff from the ACLU of Pennsylvania observed more than 2,000 bail hearings in Philadelphia, and what we observed was astonishing.
In contradiction to the court rules that judges are supposed to follow, arraignment courts in Philadelphia consistently assigned cash bail to people who could not afford it, effectively criminalizing poverty.
People accused but not convicted were assigned cash bail amounts of thousands and tens of thousands and even hundreds of thousands of dollars with no consideration for the fact that many of them were unemployed, living on public assistance, or even homeless.
The people we observed in these courts were incarcerated because they were poor, not because the court found that they posed a threat to public safety or a flight risk.
That’s why we filed a lawsuit against the Philadelphia court system to force the judges to comply with the state Supreme Court’s Rules of Criminal Procedure. We have no doubt that the excessive and unfair assignment of cash bail is not isolated to Philadelphia.
Due process is a high-minded ideal and one we should aspire towards. But public officials in the General Assembly and in the courts in Pennsylvania sometimes fail to live up to that most basic American value.
To read more CLICK HERE

Sunday, May 12, 2019

Pennsylvania’s Death Penalty Is in Peril—We Can, and Must, Do Better

Matthew T. Mangino
The Legal Intelligencer
May 9, 2019
Recently, the Pennsylvania Supreme Court upheld the death sentence of convicted cop killer Eric Frein. The court’s 45-page opinion, written by Justice Debra Todd, found Frein’s conviction was “supported by overwhelming evidence.”
The high court found that the Pennsylvania State Police violated Frein’s Fifth and Sixth Amendment rights by questioning him after he invoked his right to remain silent and his right to an attorney. However, the court found those violations to be harmless and not prejudicial.
The Fifth and Sixth Amendment protections are relevant in any criminal prosecution. The right to counsel and the right to remain silent are fundamental.  A thorough analysis by the court was warranted.
The court also refused to grant Frein a new trial on additional grounds that are more nuanced and specific to the death penalty. First, the court did not believe that the victim impact evidence presented by the prosecution during the penalty phase of the trial was prejudicial. Although the defense presented 29 mitigating factors, the jury found none and therefore a potentially flawed jury instruction had no impact on the verdict.
The court found that Frein ambushed Cpl. Bryon K. Dickson II with “malice and the specific intent to kill,” and his conduct warranted the death penalty. Now Frein will go to Pennsylvania’s death row with little chance of ever being executed.
The death penalty has been around in its modern form for about 43 years. In 1972, the U.S. Supreme Court outlawed the death penalty. The court ruled in Furman v. Georgia, 408 U.S. 238 (1972), that the death penalty was unconstitutional, violating the Eighth Amendment ban against cruel and unusual punishment. Supreme Court Justice Potter Stewart wrote, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”
The decision forced state legislatures to review the death penalty and eliminate the arbitrary, capricious and racially discriminatory aspects of capital punishment. The court suggested that states establish criteria to direct and limit death sentences and provide the sentencing authority with information about the accused’s character and record.
In 1976, the Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976), found that three of five states that amended their death penalty statute—Georgia, Florida and Texas—did conform to the directives of Furman. The death penalty was back.
Since Gregg, there have been 1,495 men and women executed nationwide. Three of those executions took place in Pennsylvania. Keith Zettlemoyer, Leon Moser and Gary M. Heidnik are the only men to have been executed in Pennsylvania since 1976. The last execution in Pennsylvania was carried out on July 6, 1999.
In February 2015, Gov. Tom Wolf announced a moratorium on the death penalty pending a review of the Pennsylvania Task Force and Advisory Commission on Capital Punishment Report, and for purposes of full disclosure I was a member of that task force. At the time, the governor said that the decision was not based on sympathy for the inmates, but out of concern over flaws in the system. He stated that as it stood, the system is an endless cycle of court proceedings, and is ineffective, unjust and expensive.
The report took the advisory commission nearly seven years to complete. The 280-page report found, among other things, that the death penalty is costly, inconsistently applied geographically across the state, and disproportionately impacts people with intellectual disability and mental illness.
Yet, nearly a year after the report and four years after the governor’s moratorium nothing has been done to fix the death penalty. But, there is bipartisan action by Philadelphia Democrat House member Christopher M. Rabb and Lebanon Republican Francis X. Ryan to abolish Pennsylvania’s death penalty.
In a co-sponsored memo Rabb and Ryan assert, “Although Pennsylvania has the country’s fifth highest death row population, currently at 175 inmates, only three executions have occurred in recent decades, and the state has not executed anyone who did not voluntarily give up their appeals in more than 50 years. According to a Reading Eagle analysis, those three executions have cost taxpayers $816 million.”
This comes at a time when support for the death penalty is waning. Twenty states and the District of Columbia have abolished capital punishment. According to the New York Times, four additional states—including Pennsylvania—have imposed moratoriums on executions. Not only are executions down, death sentences are down as well. In 2018, 14 states and the federal government imposed death sentences, more than haif of those 42 death sentences came from four states.
Disdain for the death penalty is not new. In 1994, Justice Harry Blackmun famously said, “From this day forward I no longer shall tinker with the machinery of death.” Blackmun had voted to restore the death penalty and even to approve mandatory death sentences. But after 25 years, he said, “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”
More recently, Supreme Court Justice Stephen G. Breyer wrote in a 2015 dissent—joined by Justice Ruth Bader Ginsburg—in Glossip v. Gross, 576 U.S. ___ (2015), that it was “highly likely that the death penalty violates the Eighth Amendment,” the constitutional ban against cruel and unusual punishment.
Yet, the death penalty continues. A closer look at the current status of capital punishment is revealing. Just 10 states are responsible for about 83 percent of executions since 1976.
Evolving standards of decency in a “mature society,” the analysis used to outlaw the execution of juveniles and those intellectually disabled, have made carrying out of executions increasingly rare nationwide. Last year, there were 25 executions carried out in the United States. All 25 were carried out in only eight states.
So far this year there have been five executions nationwide. There are approximately 2,721 men and women on death row according to the Death Penalty Information Center, an anti-death penalty advocacy group.
If not another person was sentenced to death in this country, at the current rate of executions, it would take 108 years to close the doors on death row. Pennsylvania can, and must, do better.
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 and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Saturday, May 11, 2019

GateHouse: Contempt of Congress: Where do we go from here?

Matthew T. Mangino
GateHouse Media
May 10, 2019
The House Judiciary Committee voted 24-16 to recommend the House hold Attorney General William Barr in contempt of Congress for failing to comply with a subpoena seeking an unredacted copy of Robert Mueller’s report. The vote came after President Donald Trump asserted executive privilege to prevent the unredacted report from going to Congress.
Congressional rules empower all committees with the authority to compel witnesses to appear and testify or produce documents for matters being investigated by a Congressional committee.
In 1961, the Supreme Court ruled that a Congressional committee must meet three requirements for a valid enforceable subpoena. First, the committee’s investigation must be authorized by a chamber congress; second, the investigation must pursue “a valid legislative purpose;” and third, the specific inquiries must be pertinent to the subject matter that has been authorized for investigation.
Once the threshold is met, Congress has three options to enforce a subpoena. First, Congress’ inherent contempt power provides constitutional authority to detain and imprison an individual until that person complies with the subpoena. The last time Congress used its inherent contempt powers was in 1934 when the Senate held William MacCracken, a former member of Herbert Hoover’s administration, after he refused a subpoena. According to the Washington Post, the Senate had nowhere to hold MacCracken so he was imprisoned at a hotel.
Second, Congress can pursue a criminal contempt citation through the executive branch seeking criminal prosecution for contempt. This is the most common method used by Congress. The person accused of contempt is charged with a misdemeanor punishable by a fine and up to a year in jail.
There are some practical concerns with this option. Where the official refuses to disclose information pursuant to the president’s decision that such information is protected under executive privilege, it is unrealistic that the Department of Justice (DOJ) will pursue a prosecution for criminal contempt. More to the point, under the current facts the DOJ would be asked to prosecute its boss, the attorney general.
Finally, Congress may rely on the courts to enforce a congressional subpoena. Under this option, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.
A number of obstacles face Congress in any attempt to enforce a subpoena issued to the Attorney General, an executive branch official. Congress may be able to enforce its subpoena through a civil lawsuit; however, relying on this option to enforce a subpoena directed at the attorney general may be inadequate to protect the authority of Congress due to the time required to achieve a final court ruling.
The two most recent court cases seeking to enforce a Congressional subpoena involved former Attorney General Eric Holder in 2012 and former White House counsel Harriet Miers in 2008. According to a 2017 report from the Congressional Research Service, ”(B)oth conflicts ended the same way: The contempt charge was stuck in a court battle for so long that a new president and Congress were elected and new administration officials took office along with them.”
Trump’s blanket claim of executive privilege appears to be an effort to shield Barr from contempt. Essentially, the president is saying the redacted aspects of the report are privileged and Barr cannot turn them over to Congress.
Trump’s efforts parallel Richard Nixon’s unsuccessful effort to prevent his White House Counsel, John Dean, from testifying pursuant to a subpoena from the Watergate special prosecutor.
According to Michael Conway - a former counsel to the House Judiciary Committee - like Nixon, Trump is trying to use an expansive claim of executive privilege to thwart a legitimate Congressional investigation.
Trump seems to be prepared to do as Nixon did in 1973. Conway wrote on the NBC News website, “Nixon predicted that the Senate would question his claim of executive privilege if Dean were required to testify. If that occurred, Nixon said ‘we’ll let it go to the (Supreme) Court. Fight it like hell.’”
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, May 10, 2019

ABA: 'Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses'

When entering into a plea bargain for a misdemeanor offense, prosecutors have an ethical duty to ensure the legal and evidentiary basis of the charges are sound, according to a new formal ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility.
“Observance of the special obligations of prosecutors under the Rules of Professional Conduct is critical to achieving fair guilty pleas,” the opinion states.
According to the ABA JournalFormal Opinion 486 provides for “Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses,” the application of these ethical standards apply regardless of constitutional requirements or whether the defendant is represented by counsel.
“Hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions,” says Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility. “Opinion 486 imposes duties on prosecutors and their supervisors to ensure that the accused has a reasonable opportunity to obtain counsel, that decisions to resolve a case through plea bargaining are grounded in the prosecutor’s independent assessment of the case, and that prosecutors reveal known collateral consequences, which may include deportation and the loss of eligibility for a wide range of public services, including food assistance and public housing. The failure to take the precautions described by the opinion especially harms the poor and minorities, who are disproportionately represented among the defendant population.”
The guidance addresses Model Rules 1.1 (Competence), 1.3 (Diligence), 3.8 (Special Responsibilities of a Prosecutor), 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Person), 5.1 (Responsibilities of a Partner or Supervisory Lawyer), 5.3 (Responsibilities Regarding Nonlawyer Assistance), and 8.4 (Misconduct).
Under Rule 3.8(a), for example, prosecutors may not bring “a charge that the prosecutor knows is not supported by probable cause.” This means that a DA can’t begin a plea bargain without assessing each charge. However, the opinion notes that because of limited resources and the perception that a misdemeanor is “lower stakes,” prosecutors often rely “uncritically” on a police officer’s report. “Unless the prosecutor has reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers who prepare the supporting documents and investigation, reliance on them is likely to be misplaced and the very discretion the Rule is designed to protect may be abused,” the opinion states.
Additionally, the opinion warns that a prosecutor’s failure to vet each charge independently, could violate the duty of competence under Rule 1.1.
The opinion comes at a time when misdemeanor criminal enforcement has received heightened attention.
About 80 percent of America’s criminal dockets are taken up by misdemeanor offenses, a number that has doubled since 1972, according to the opinion. This trend disproportionately impacts poor and minority people.
At the same time, prosecutors are engaging in plea bargaining before the right to counsel has been raised, using delay tactics or the threat of a higher sentence to keep the defendant from invoking the right to counsel. The opinion also found that tactics, including forcing a defendant to waive his or her right to counsel as a criteria to negotiate a plea, violate the Rules of Professional Conduct and potentially the Constitution.
These practices occur, in part, because many people charged with a misdemeanor are given a citation or notice to appear and are not arrested for the offense, which means the accused is not read his or her rights. In such situations, it may fall to the prosecutor to make clear to the accused their right to counsel.
Noting that, in some cases, the accused may choose to be unrepresented or does not qualify for subsidized representation from the state, prosecutors have unique and heightened duties. For example, if a prosecutor does not mention the impact of the plea deal on a separate case or the broader social or economic impacts of a criminal record, called collateral consequences, it could be considered misrepresentation or deceptive conduct under Rules 4.1 and 8.3(c), respectively.
“A prosecutor will rarely know all of the potentially relevant collateral consequences of accepting a plea or the exact nature of any subsequent sentence enhancement,” reads the opinion. “However, if the prosecutor knows the consequences of a plea—either generic consequences or consequences that are particular to the accused—the prosecutor must disclose them during the plea negotiation.”
Ultimately, the opinion looks to reinforce the idea that, “a prosecutor’s duty is to seek justice, not merely to convict.”
“The professional integrity of prosecutors is essential to the administration of criminal justice,” the opinion states.
To read more CLICK HERE

Thursday, May 9, 2019

Extremely rare to be killed in U.S. by foreign-born terrorist

According to Cato Institute research by Alex Nowrasteh,  Terrorists by Immigration Status and Nationality: A Risk Analysis, 1975–2017:
Foreign-born terrorism on U.S. soil is a low-probability event that imposes high costs on its victims, despite relatively small risks, and low costs on Americans as a whole. From 1975 through 2017, the average chance of dying in an attack committed by a foreign-born terrorist on U.S. soil was 1 in 3,808,374 a year, and the chance of being injured was about 1 in 678,399. For 27 of those 43 years, no people were killed on U.S. soil in terrorist attacks committed by foreign-born terrorists. In 27 years, most of which overlap with the years in which no one was killed, no people were injured on U.S. soil in terrorist attacks committed by foreign-born terrorists. During the same period, native-born terrorists murdered 413 people and injured 1,346 in attacks on U.S. soil.
Foreign-born terrorism has been a more serious hazard to American life, liberty, and private property than native-born terrorism from 1975 through 2017. But foreign-born terrorism is a manageable threat given the huge economic benefits of immigration and the relatively smaller costs of terrorism. Unknown terrorists murdered 68 people during that time. The U.S. government should continue to devote resources to screening immigrants and foreigners for terrorism and other threats, but large policy changes like an immigration or tourist moratorium would impose far greater costs than benefits.
To read the full report CLICK HERE

Wednesday, May 8, 2019

Barr in contempt of Congress

House Democrats on the Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress for failing to provide the full version of Special Counsel Robert Mueller’s report on Russian interference in the 2016 election, and the White House responded by invoking executive privilege over it, reported Time Magazine.
The immediate consequences will be mostly symbolic. About 10 percent of the Mueller report was redacted, at times clearly because it involved information relevant to the upcoming trial of longtime Trump confidant Roger Stone. The next step in the proceedings will be a vote on the House floor. Although it will likely pass since Democrats control the chamber, Barr will probably face few legal repercussions, as federal prosecutors are unlikely to pursue criminal penalties for a contempt of Congress charge against their own boss.
But the speed with which Democrats took the nearly unprecedented measure — it is only the second time in U.S. history that the nation’s top law enforcement officer was held in contempt of Congress — and the surrounding cloud of suspicion and counter-charges reflected the unprecedented scope of conflict between the executive and legislative branches.
In the 48 hours since the Judiciary Committee announced it would hold contempt proceedings on Monday, the Trump Administration issued a flurry of rejections for congressional requests, adding to an already deep pile. On Monday, Treasury Secretary Steve Mnuchin announced he would not turn over the President’s tax returns to the Ways and Means Committee; on Tuesday, the White House told former White House Counsel Don McGahn not to comply with a subpoena from the judiciary committee; and on Wednesday, after a day of futile negotiations between the committee and the Department of Justice, it invoked executive privilege over the redacted portions of the Mueller report.
Democrats unsurprisingly used the high-profile proceedings on contempt to highlight what Nadler is deeming a constitutional crisis. As the markup stretched into the afternoon, the sentiments became less about Barr’s actions and more about about preserving the powers of the legislative branch.
“This is unprecedented,” Judiciary Chairman Jerrold Nadler said in his opening statement after listing all the other ways the White House has stonewalled Congress. “If allowed to go unchecked, this obstruction means the end of congressional oversight. As a co-equal branch of government, we should not and cannot allow this to continue.”
Every member of the committee was allotted a brief time to speak, and the tenor reflected the partisan tensions. Democrats’ comments largely echoed Nadler’s about the state of U.S. democracy. Republicans, by comparison, defended Barr, arguing that Democrats were on a “witch hunt,” and wanted Barr to break the law by handing over the un-redacted report. Several also pointed out Democrats moved much more quickly to hold Barr in contempt than Republicans on the oversight committee did with his Democratic predecessor Eric Holder in 2012 when they were seeking documents in the Fast and Furious case.
“[Democrats] have moved from request to contempt vote in only 43 days, and yet the Justice Department is still at the negotiating table — waiting for Democrats to arrive in good faith,” said ranking member Doug Collins, adding that Democrats want to “sully Bill Barr’s good name and reputation.”
Department of Justice spokesperson Kerri Kupec released a statement after the vote, calling it “politically motivated,” and “unnecessary.” “It is deeply disappointing that elected representatives of the American people have chosen to engage in such inappropriate political theatrics,” she said.
There is undoubtedly some irony that Barr is the first administration official facing contempt proceedings when his department, unlike the White House counsel’s office, actually came to the table to negotiate. And it is also true that the vote to hold Holder in contempt was, like Barr, upheld along party lines. But veterans of Congressional oversight say that, more than anything, it is this partisanship that is the problem.
 To read more CLICK HERE

Tuesday, May 7, 2019

Pushback from Trump administration for reform of forensic evidence

Three years after an embattled forensics profession had started to turn hopeful about reform, things have seemed since then to go backward, with aggressive pushback from the FBI and Department of Justice even under the Obama administration, and the curtailment of a number of federal crime-science initiatives by the Trump administration, The Intercept reports.
A decade marked by critical reports, scandals, and a rising tally of exonerations have made it hard for even the most stubborn forensic experts to ignore the problem of junk science. But the ongoing crisis within forensic science remains woefully unresolved.
At the most recent meeting of the American Academy of Forensic Sciences, the plenary speaker — veteran Kansas City, Missouri, prosecutor Ted Hunt, tapped by Attorney General Jeff Sessions to head up DOJ’s Forensic Science Working Group — embodied a spirt of skepticism and pushback.
Hunt was among those who served on the Obama-era National Commission on Forensic Science, where he clashed with his colleagues on a number of issues — including those designed specifically to improve the reliability of forensic science. “Ted Hunt,” one veteran conference attendee concluded, “is the Mike Pence of forensics.”
he blamed critics — undisguised jabs at the Innocence Project, outspoken individuals within the forensics community, and journalists — for the crisis of confidence within the field. “Much of it is … strategic, dishonest, and destructive. Some of it is little more than agenda-driven advocacy in the guise of promoting scientific purity — a genre I call ‘forensic science fiction,’” he said. Others promote “what I call ‘junk journalism’ — media stories full of partisan misinformation, strawman arguments, and half-truths about forensic science.”
While Hunt’s speech might’ve provided him a few satisfying zinger moments, it did little to reflect the sobering reality on the ground: Many forensic practices still lack meaningful scientific underpinning even though they are regularly used to prosecute individuals charged with crimes. The federal government has thrown what appears to be an impressive amount of money toward funding foundational research in forensics — more than $200 million since the NAS report was released — but that’s hardly enough to cover the amount of ground necessary. In 2014, as one conference presenter noted, the feds funded forensic research at roughly $21 million; that same year the Department of Defense spentmore than $41 million on Viagra. And there remain questions — and contention — over what should be researched and to what degree.
To read more CLICK HERE

Monday, May 6, 2019

Congress may hold AG Barr in contempt of congress

Congress indicated they could be forced to hold Attorney General William Barr in contempt of Congress if he did not cooperate with a subpoena for an unredacted copy of special counsel Robert Mueller’s report on the Trump campaign and Russian interference in the 2016 election, reported the USA Today. The Justice Department missed Wednesday's deadline to hand over the subpoenaed report, writing to Nadler that the committee had not "articulated any legislative purpose for its request."  congressional Democrats said they could be forced to hold Attorney General William Barr in contempt of Congress if he did not cooperate with a subpoena for an unredacted copy of special counsel Robert Mueller’s report on the Trump campaign and Russian interference in the 2016 election. The Justice Department missed Wednesday's deadline to hand over the subpoenaed report, writing to Nadler that the committee had not "articulated any legislative purpose for its request."
While Congress is given powers to investigate and subpoena individuals and entities, it typically does not just arrest people for not cooperating. 
Instead, Congress can hold a person in contempt if their actions are viewed as obstructing legislative business or a congressional investigation.
Lawmakers have three routes: 
  • Inherent contempt: The Supreme Court has ruled that lawmakers have inherent contempt powers to have an individual held until the person "provides the testimony or documents sought, or until the end of the session," reads a 2017 report from the Congressional Research Service, Congress' policy research arm. Using this process is incredibly rare and hasn't been done in modern times, not since the 1930s.
  • Criminal contempt: Congress also has the option to use its "criminal contempt" powers, a law that allows lawmakers to charge an individual with a crime. This is the process listed above with regard to Barr that's more common and would have to be passed through one of the chambers in Congress. 
  • Civil judgment: The third option is going through a civil process in the courts. Lawmakers can seek a civil judgment, asking a judge to enforce a subpoena. 

The most common method used by Congress has been criminal contempt; a charge is a misdemeanor and punishable by jail time of between a month and a year and a fine.
But it's not as easy as simply charging someone. The measure doesn't have to pass in both the House and Senate and can start in committee, meaning in this case, Nadler could bring the issue before the House Judiciary Committee. 
After it passes with a simple majority, it would move to a full vote in the House.
Once approved, the House speaker or the Senate president pro tem then turns the matter over to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action," according to the law. 
While Congress has broad investigative powers, there are limits. The Supreme Court has said that congressional inquiries should have a legitimate legislative purpose and should not be used for political purposes to embarrass, expose wrongdoing or target a particular person or group.  
And holding someone in contempt of Congress has caveats and drawbacks. Jailing someone until they testify or offer up documents might seem like an easy solution but the CRS notes that Congress is not allowed to hold someone past the "end of the current session of Congress." The process could also likely end up worsening tensions between each branch of government and give the public a front-row seat to the chaos. Plus some, like Barr, have armed security and it's unclear what would happen if Congress attempted to arrest him. 
And while a civil claim could be the path of least resistance, it could be time-consuming and delay an investigation. Even criminal contempt has a catch: It's up to the Justice Department to actually take up a criminal case against someone. In the past, the Justice Department has declined to prosecute criminal contempt-of-Congress cases.
There's also the question of executive privilege, which President Trump said was being considered to block his current and former aides from testifying before lawmakers. 
It isn't clear whether Congress' contempt powers could trump the president invoking executive privilege as neither the White House nor Congress has sought a resolution to the question from the Supreme Court, both sides fearing they might lose.  
Congress would have a harder time investigating presidents for decades to come if the high court ruled against it and if the White House lost, it would open the door for a multitude of congressional inquiries.
Congress rarely holds people in contempt. But it has done so in the past to force witnesses to appear or produce documents. 
The last time Congress used its inherent contempt powers was in 1934 when the Senate held William MacCracken, a former member of Herbert Hoover's administration, after he refused a subpoena. The Senate had nowhere to hold MacCracken so he was imprisoned at a hotel, according to the Washington Post
But Congress has voted on contempt charges more recently, even discussing using it against members of the Trump administration last year after former White House adviser Steve Bannon refused to answer questions. 
Other examples include in 2012 when the House voted to hold then-Attorney General Eric Holder in contempt for declining to provide documents and in 2014 after IRS official Lois Lerner invoked her Fifth Amendment right against self-incrimination during a congressional hearing. In both cases, the Justice Department declined to bring criminal cases. 
While a contempt charge normally moves through the criminal justice system and the courts, there's one final method that has gotten attention in recent days, given the president's reluctance to cooperate with congressional investigations. 
Lawmakers can elect to pursue a contempt-of-Congress charge in an impeachment proceeding, which is a political process to remove the president from office that moves through Congress instead of the courts. 
A contempt-of-Congress charge was one of the three articles of impeachment filed against President Richard Nixon in 1974 after he defied subpoenas for documents and information that Congress said it needed for an impeachment inquiry. 
To read more CLICK HERE

Saturday, May 4, 2019

GateHouse: Prisons as refuge and comport

Matthew T. Mangino
GateHouse Media
May 3, 2019
There is so much buzz in this country about criminal justice reform. Much of the focus is on mass incarceration. America puts more people in prison for longer periods of time than nearly every other nation in the world.
Prisons and jails are not pleasant places. They are often dirty, smelly, overheated places filled to capacity with a constant threat of violence. Some accused of a crime will spend enormous amounts of money to avoid a conviction and a stint behind bars.
However, as inconceivable as it may seem, some people commit crime hoping to get caught because they want to go to jail.
Some see incarceration as a way to get shelter and food. Others seek jail as a way to get healthcare, or mental health treatment. Some former inmates become institutionalized after a long prison stay and find it easier to cope with the structure of a prison than adjusting to life on the street.
Hidden Homelessness, a survey of more than 400 homeless people by Sheffield Hallam University, in England, revealed the desperate steps taken by the homeless to find shelter. One-in-five homeless people have committed offenses punishable by incarceration just to spend a night in jail away from harsh weather and the dangers of the street.
Correctional facilities in the U.S. are considered the largest provider of mental health services. More people are receiving mental health treatment in prison than in mental health facilities.
When mental health facilities began to close in the 1950s, they weren’t replaced, as promised, with mental health services in the community. As a result, prisons and jails have become de facto mental health facilities. Many people with mental illness have scrapes with the law, intentional and unintentional, and end up incarcerated.
At the same time, the correctional system is struggling to provide constitutionally adequate treatment. At least those in prison are mandated to receive treatment - no such “mandate” exists on the street. Nearly 40 percent of inmates in state and federal prison report having some mental health disorder.
Then there are those who seek to be imprisoned in order to get health care treatment unavailable or unaffordable to them on the street.
A vivid example of “prison in exchange for health care” is Frank Morrocco of Amherst, New York. He was released from prison after serving 20 years on felony drug conspiracy charges, reported the Business Insider.
Unable to afford healthcare for a rare form of leukemia, Morrocco walked into a grocery store, stepped up to the counter, and grabbed about $23 worth of merchandise in front of store employees and walked out the front door.
He was eventually arrested on a shoplifting charge. The charge was a violation of his parole. He was hoping the act would result in returning to prison so that he could get health care treatment unavailable on the street.
“It was an act of desperation. I went into that store and took things I didn’t need, and I made sure a lot of people saw me,” Morrocco told The Buffalo News. “At the time I did it, I felt that I didn’t have any other way to get the care that I need for my leukemia.”
What is the state of a nation that has people who seek the comfort of a prison cell as opposed to “freedom?”
Reform advocates are pushing lawmakers across the country to ease the pressure on jails and prisons. Leaders on both ends of the political spectrum want less people in prison. Yet, for some, life is so difficult outside prison walls that they seek the refuge of incarceration.
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