Sunday, June 30, 2019

Alabama woman shot loses unborn baby charged with manslaughter

A woman whose unborn baby was killed in a 2018 Pleasant Grove shooting has now been indicted in the death, reported
Marshae Jones, a 27-year-old Birmingham woman, was indicted by a Jefferson County grand jury on a manslaughter charge. She was taken into custody on Wednesday.
Though Jones didn’t fire the shots that killed her unborn baby girl, authorities say she initiated the dispute that led to the gunfire. Police initially charged 23-year-old Ebony Jemison with manslaughter, but the charge against Jemison was dismissed after the grand jury failed to indict her. 
The shooting happened about noon on Dec. 4, 2018, outside Dollar General on Park Road. Officers were dispatched to the scene on a report of someone shot but arrived to find the shooting victim – later identified as Jones - had been picked up and driven to Fairfield. Police and paramedics then found the Jones at a Fairfield convenience store.
Jones was taken from Fairfield to UAB Hospital. She was five months pregnant and was shot in the stomach. The unborn baby did not survive the shooting.
“The investigation showed that the only true victim in this was the unborn baby,’’ Pleasant Grove police Lt. Danny Reid said at the time of the shooting. “It was the mother of the child who initiated and continued the fight which resulted in the death of her own unborn baby.” 
Reid said the fight stemmed over the unborn baby’s father. The investigation showed, he said, that it was Jones who initiated and pressed the fight, which ultimately caused Jemison to defend herself and unfortunately caused the death of the baby.
"Let’s not lose sight that the unborn baby is the victim here,’’ Reid said. “She had no choice in being brought unnecessarily into a fight where she was relying on her mother for protection."
The 5-month fetus was "dependent on its mother to try to keep it from harm, and she shouldn’t seek out unnecessary physical altercations,” Reid added.
Jones will be transferred to the Jefferson County Jail where she will be held on $50,000 bond.
The indictment and prosecution is being handled by the Jefferson County Bessemer Cutoff District Attorney’s Office. Lynneice Washington, the district attorney in that office, could not be reached for comment. Jefferson County is divided into two divisions and the Bessemer Cutoff covers the western portion of the county, including Pleasant Grove. 
News of Jones’ grand jury indictment outraged many, including women’s rights activists.
The Yellowhammer Fund, a member of the National Network of Abortion Funds which helps women access abortion services, released a statement Wednesday night. The group gained national attention after the passage of Alabama’s new abortion law.
“The state of Alabama has proven yet again that the moment a person becomes pregnant their sole responsibility is to produce a live, healthy baby and that it considers any action a pregnant person takes that might impede in that live birth to be a criminal act,’’ Executive Director Amanda Reyes said in the statement.“
“Today, Marshae Jones is being charged with manslaughter for being pregnant and getting shot while engaging in an altercation with a person who had a gun. Tomorrow, it will be another black woman, maybe for having a drink while pregnant. And after that, another, for not obtaining adequate prenatal care,” Reyes said.
“We commit ourselves to making sure that Marshae is released from jail on bond, assisting with her legal representation, and working to ensure that she gets justice for the multiple attacks that she has endured,’’ Reyes said.
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Saturday, June 29, 2019

GateHouse: Supreme Court rules on 2 politically charged cases

Matthew T. Mangino
GateHouse Media
June 28, 2019
The U.S. Supreme Court handed down two politically charged decisions in the final week of its term. The decisions appear to cut in different directions, but both will have an indirect, if not direct, impact on every American.
First, the Court refused to eliminate a resoundingly Machiavellian concept in American politics “to the victors go the spoils.” The Court’s five conservative justices ruled that judges do not have the ability to prohibit the practice known as “partisan” gerrymandering.
 “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice John Roberts wrote for the majority.
The decision does not favor any particular party. Both Democrats and Republicans are guilty of gerrymandering. In fact, the court sided with Republican lawmakers in North Carolina and Democratic legislators in Maryland after their decidedly partisan legislative maps were challenged by voters.
The second decision, however, was a surprise. The Court has, at least temporarily, prevented the Trump administration from adding a citizenship question to the 2020 census. In some sense the two decisions are intertwined.
The boundaries of legislative districts across the country are redrawn to reflect population changes contained in the census which is conducted by the federal government every decade - a process that is mandated by the U.S. Constitution.
The act of redrawing districts is a practice dating back two centuries. Elbridge Gerry was the governor of Massachusetts in 1812 when he signed off on a misshapen legislative district that stretched from Boston to New Hampshire and heavily favored the Federalist Party.
Gerry was no political hack, according to Smithsonian Magazine. He was literally a Founding Father, signer of the Declaration of Independence, framer of the Constitution, congressman, diplomat, and the fifth vice-president.
However, today Gerry’s name is attached to one of America’s most wantonly political acts - gerrymandering.
Redistricting in most states is carried out by the party in power in the legislature. Gerrymandering typically involves one party re-drawing legislative districts to create districts that are virtually invulnerable. At the same time, the party in power seeks to dilute districts that favor the opposing party to make those districts more vulnerable.
Critics have said partisan gerrymandering, when taken to extremes, warps democracy by intentionally diluting the power of some voters and the electability of candidates they support, reported CNN.
The attempted politicization of the census is on hold for now, but not completely off the table. The High Court’s unanimous decision, also written by Chief Justice Roberts, partially upheld a ruling from earlier this year, by Judge Jesse Furman of the federal Southern District of New York. Furman ruled that the Trump administration’s decision to add a citizenship question to the census violated the law by being “arbitrary and capricious,” since the Trump administration’s reason for adding the question - helping to enforce the Voting Rights Act - was contrived after the fact.
The political consequence of a citizenship question during the census is that it tends to lead people in households with legal immigrants to not respond to the census questionnaire. According to the Census Bureau, that could result in an undercount in urban areas where immigrant groups tend to live, while leaving rural - mainly white areas - largely unaffected.
The census data is used to determine how legislative districts are designed. The political consequences are that predominately blue urban areas will lose seats and predominately red rural areas will gain seats.
So when you couple gerrymandering with a citizenship question, rural Republican areas gain more congressional seats and gerrymandering keeps those seats firmly in the GOP column. These two decisions have the potential to impact politics now and far into the future.
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.
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Friday, June 28, 2019

SCOTUS permits warrantless blood test for unconscious suspect of DUI

The US Supreme Court ruled Thursday in Mitchell v. Wisconsin, a case surrounding the administration of a warrantless blood alcohol concentration (BAC) test to Mitchell who was unconscious at the time of the test, reported Jurist.
Justice Samuel Alito wrote that in such circumstances where the driver is unconscious, the court holds that the “exigent circumstances rule almost always permits a blood test without a warrant.”
In reaching this conclusion the court discusses case precedent, looking to Schmerber and McNeely to determine where this case sits on the exigency spectrum.
McNeely was about the minimum degree of urgency common to all drunk driving cases. In Schmerber, a car accident heightened that urgency. And here Mitchell’s medical condition did just the same. Mitchell’s stupor and eventual unconsciousness also deprived officials of a reasonable opportunity to administer a breath test.
The court noted that there are exceptions to the warrant requirement of the Fourth Amendment, and under the exception for exigent circumstances, a warrantless search is allowed when “there is compelling need for official action and no time to secure a warrant.”
To determine whether exigency exists where a suspected drunk driver is unconscious, the court looked at two elements: whether the BAC evidence is dissipating, and when some “other factors creates pressing health, safety, or law enforcement needs which would take priority over an application for a warrant.”
Thus, when a driver is unconscious, the court imposed the general rule that a warrant is not needed.
Justice Clarence Thomas wrote separately, concurring with the judgement, but arguing that the court should apply a per se rule that he had proposed in McNeely—that “the natural metabolization of alcohol in the blood stream creates an exigency once police have probable cause to believe the driver is drunk regardless of whether the driver is conscious.”
Justice Sonia Sotomayor was joined by Justices Ruth Bader Ginsburg and Elena Kagan in dissent, arguing that under the Fourth Amendment police officers must always seek to get a warrant before ordering a blood draw. “When the aim of a search is to uncover evidence of a crime, the Fourth Amendment generally requires police to obtain a warrant.”
Sotomayor argued that warrants serve as a “check against searches that violate the Fourth Amendment by ensuring that a police officer is not made the sole interpreter of the Constitution’s protections.” Further, the dissent noted that a blood draw provides access to information beyond the BAC level, and as such is an invasion of bodily integrity which “disturbs an individual’s expectations of privacy.”
Additionally, the dissent argued that precedent cases Schmerber and McNeely “establish that there is no categorical exigency exception for blood draws, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case.”
The dissent also noted that the exigency exception was not an argument that Wisconsin presented at any point throughout the proceedings of this case. Rather, Wisconsin had conceded that the exigency exception does not apply to this case and would not justify the warrantless blood draw. Sotomayor pointed out that the Supreme Court is a court of review, and stated that the court “is not in the business of volunteering new rationales that were neither raised nor addressed below.”
Justice Neil Gorsuch wrote separately to dissent, arguing that the case should have been dismissed and the question of the exigent exception and circumstances which would create such an exception should be considered in another case that presents such circumstances.
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Thursday, June 27, 2019

Regulating Artificial Intelligence in the criminal justice system

A new report from the Law Society of England and Wales, “Algorithms in the Criminal Justice System,” lays out a thoughtful alternative that creates legal structures and procedures around AI in the criminal justice system that protect due process and the rule of law while allowing for technology’s experimentation, writes Jason Tashea for the ABA Journal.
Like in the U.K., AI is proliferating at all levels of the U.S. justice system. Risk assessments assist in bail, sentencing and parole decisionsPolice are dispatched into communities with an algorithm’s insistence. And facial recognition is being rolled out by law enforcement at the federal, state and local levels.
The challenges and harms of these technologies are well-documented. Facial recognition and risk assessments show racial bias. Complex algorithms are not built to “explain” their conclusions, which closes a part of an otherwise open court process. Even if AI software is “explainable,” private companies shield their software from scrutiny by claiming it as a trade secret—despite being used by a public agency.
These challenges are compounded in the U.S. because federal and state lawmakers are using algorithms as a public policy crutch.
At the federal level, the First Step Act, passed in 2018, expects to release more people from federal prison with the assistance of a risk assessment tool. In a similar vein, California passed a major bail reform bill–SB-10—that is now on the ballot. If ratified, the law would require local agencies to use risk assessment tools in lieu of cash bail.
In both cases, drafters of these otherwise decent laws made the bet that an algorithm can stand in for existing processes and policy choices. At the same time, neither law provides legal standards on how the tool should be built, what oversight and transparency are needed or how to assess an algorithms efficacy, including its impact on the legal rights of the accused.
Handing off this type of rule-making to an agency is standard in legislation; however, there’s evidence that agencies are also being deferential to the technology. In New York, for example, the Department of Corrections and Community Supervision has put in multiple layers of bureaucracy to limit human override of the agency’s risk assessment tool.
This legislative and regulatory trend outsources decisions traditionally made by publicly accountable individuals to private companies. Algorithms are opinions expressed through math, and when an algorithm is used for a public purpose, everything from the problem definition to the data used to build the algorithm are public policy concerns. As the report from London notes, the value-based decisions that ultimately make up an algorithm are “usually not between a ‘bad’ and a ‘good’ outcome, but between different values that are societally held to be of similar importance.”
Take for example, defining fairness when using a risk assessment for bail. As University of Pennsylvania criminology professor Richard Berk wrote with colleagues in 2017, there are six types of fairness and not all are compatible with each other. A government could decide that fairness is achieved when a tool provides the same accuracy for two protected groups, like men and women. Or fairness can be attained if the error rates are the same among groups, even though it might mean more men than women are incarcerated.
These two outcomes are not compatible, so a choice needs to be made. Depending on the community, either could be the “right” decision, but it’s not a decision to be left up to a software company.
Beyond the legislative and executive branches, unjustifiable trust in these tools extends to the judiciary. The Supreme Court of Wisconsin in 2016 decided that the lack of transparency of a risk assessment tool used at sentencing did not infringe on a defendant’s due process. A California appeals court in 2015 made a similar conclusion regarding DNA testing software, which was used to convict a man of rape and murder.
Collectively, these approaches to legislating and judicial decision making are regrettable—but fixable.
To be clear, the use of algorithms is not fundamentally the problem. The problem is the lack of accountability, effectiveness, transparency and competence surrounding these tools, as defined by the IEEE’s comprehensive principles on the ethical use of AI in legal systems.
To read more CLICK HERE

Wednesday, June 26, 2019

Mueller to testify before congressional committees

Robert Mueller agreed Tuesday to testify before the House Judiciary Committee and House Intelligence Committee in an open session, reported the Huffington Post.
The special counsel is set to appear before both committees in separate but back-to-back hearings on Wednesday, July 17, according to Reps. Jerry Nadler (D-N.Y.) and Adam Schiff (D-Calif.), who chair the judiciary and intelligence committees, respectively.
“Americans have demanded to hear directly from the Special Counsel so they can understand what he and his team examined, uncovered, and determined about Russia’s attack on our democracy, the Trump campaign’s acceptance and use of that help, and President Trump and his associates’ obstruction of the investigation into that attack,” Nadler and Schiff said in a joint statement. “We look forward to hearing his testimony, as do all Americans.”
To read more CLICK HERE

Tuesday, June 25, 2019

PA Legislature to review probation and parole

A bipartisan effort in the state Senate to reform Pennsylvania’s probation and parole laws will get some new insight next week from more than a dozen experts, reports the Pennsylvania Capital-Star.
On Tuesday and Wednesday, the Senate Judiciary Committee, chaired by Sen. Lisa Baker, R-Luzerne, will hold a public hearing on Pennsylvania’s parole and probation systems, which supervise offenders and newly released prisoners living in their communities.
The committee will hear from more than a dozen stakeholders in the probation and parole debate, including county district attorneys, criminal defense lawyers, and advocacy groups like the American Civil Liberties Union, and the Reform Alliance, which is chaired by Philadelphia rapper and probation and parole reform advocate Meek Mill.
Representatives from state Department of Corrections, the Office of the Victim Advocate, and the Sentencing Commission will also offer testimony.
“What you’ll see are people on all different sides of the issue,” said Mike Cortez, a top aide to Baker and the Judiciary Committee.
Cortez acknowledged it’s an unusual time to devote so much attention to a single policy matter, given that leaders in the House and Senate are scrambling to finish Pennsylvania’s 2019-20 budget by the end of June.
But he also said the Judiciary Committee is eager to hear solutions to fix Pennsylvania’s expensive and punitive supervision programs.
“It’s incredibly important,” Cortez said. “The hearing will be a sounding board to figure out what we can do, what we can’t do, and if there are ways we can move bills forward.”
Probation and parole laws are meant to cut costs and reduce prison populations. But a newly released report suggests the opposite is true in many states.
Pennsylvania spent $100 million to arrest and incarcerate people who committed technical violations of parole — infractions like missing a meeting with a probation officer or failing a drug test — according to a report from the Council on State Governments, a non-partisan public policy research institute.
The state spends an additional $200 million incarcerating people who commit new crimes while on probation or parole.
As a result, more than half of the people sent to prison in Pennsylvania are brought in because of a technical violation of parole. Some may not stay for long, but on a given day, 7,000 of the state’s inmates are incarcerated for parole violations.
The high social and economic costs of probation and parole have put the programs in the crosshairs of criminal justice reformers in the state Senate, which recently passed a package of bills aimed at cutting corrections costs and reinvesting savings in public safety initiatives.
A comprehensive probation and parole reform bill could be next on their agenda, Cortez said.
The Judiciary Committee will also discuss a bill from Sens. Camera Bartolotta, R-Washington , and Sen. Anthony Williams, D-Philadelphia, that would minimize technical violations and cap probation terms.
Pennsylvania is one of only eight states that puts no limit on how long someone can serve probation.
To read more CLICK HERE

Monday, June 24, 2019

Supreme Court awards new trial to tried six times

The Supreme Court reversed the most recent conviction of Curtis Flowers, a black Mississippi man who has been tried an extraordinary six times for a quadruple murder in 1996, finding that a zealous prosecutor once again had improperly kept African Americans off the jury, the Washington Post reports.
The case was decided on a 7-to-2 vote, with Justice Brett Kavanaugh writing the opinion. He said it broke no new legal ground, but reinforced the court’s rulings about when a prosecutor’s bias eliminated a potential juror. Justices Clarence Thomas and Neil Gorsuch dissented, according to The Crime Report.
Six times, District Attorney Doug Evans, who is white, has attempted to convict Flowers, who is black, in what the Post calls “a prosecutorial pursuit that may be without parallel.” Flowers was charged with executing four people inside Tardy Furniture Store in the small town of Winona, Ms.
Two trials, the only ones with more than one African American on the panel, resulted in hung juries. Three convictions were overturned by the Mississippi Supreme Court for prosecutorial misconduct and improper maneuvering by Evans to keep blacks off the jury.
The state said Evans had offered race-neutral reasons in the most recent trial, in 2010, when the prosecutor struck five of six black potential jurors.
The Supreme Court was not considering the evidence against Flowers, but looking at Evans’s prosecutorial tactics.
In his dissent, Thomas said the court did not dispute Flowers was convicted by an impartial jury.
“Today’s decision distorts the record of this case, eviscerates our standard of review, and vacates four murder convictions because the state struck a juror who would have been stricken by any competent attorney,” he wrote. He added: “If the court’s opinion today has a redeeming quality, it is this: The state is perfectly free to convict Curtis Flowers again.”
Prosecutors and defense attorneys may use what are known as peremptory challenges. They can strike potential jurors they simply don’t want on the jury, and generally those choices cannot be second-guessed.
In a 1986 case, Batson v. Kentucky, the Supreme Court said the challenges could not be used to strike a potential juror because of his or her race. Gender was later added as a forbidden purpose.
In Friday’s ruling, Kavanaugh said that the effect of the high court decision was to “simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.”
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Sunday, June 23, 2019

Court clarifies SOL for prosecutorial fabrication

A six-justice majority held Thursday in McDonough v. Smith that the three-year statute of limitations on a constitutional claim under 42 U.S.C. § 1983 alleging that a prosecutor fabricated evidence in a prosecution begins to run when that prosecution terminates in favor of the criminal defendant/Section 1983 plaintiff. Under that standard, the claim of the petitioner Edward McDonough, brought less than three years following his acquittal for election-related fraud, was timely, reported the SCOTUSBlog.
Respondent Youel Smith prosecuted McDonough, a former election official, for fraud arising from a primary election; the prosecution was initiated and continued on allegedly fabricated evidence, fabricated affidavits, false testimony and faulty DNA analysis. McDonough was indicted and tried twice, the first trial ending in a mistrial and the second ending in an acquittal. Less than three years after the acquittal, McDonough filed an action in federal district court alleging malicious prosecution and fabrication of evidence before the grand jury and at the two trials, in violation of the Fourth, Fifth, Sixth and 14th Amendments. The U.S. Court of Appeals for the 2nd Circuit dismissed the fabrication-of-evidence claim as untimely, because the statute of limitations began to run when McDonough became aware of the use of fabricated evidence, which occurred well before his acquittal and thus more than three years before he filed the federal civil action.
Justice Sonia Sotomayor wrote for a majority of Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Brett Kavanaugh, reversing the 2nd Circuit.
Although the limitations period presumptively runs from the point at which the plaintiff has a complete and present cause of action, some claims may not realistically be brought while the violation is ongoing, allowing for a later accrual date. The majority began by identifying the specific constitutional right alleged to have been infringed, which was problematic because McDonough did not identify a particular constitutional provision or right. But the 2nd Circuit treated the claim as alleging a violation of procedural due process — the right not to be deprived of liberty (in pretrial restrictions on his travel and movement) on the basis of fabricated evidence. The majority assumed, without deciding, that this articulation of the right was sound and considered the limitations question on that basis; it left for another day questions about other constitutional rights that might be violated by a prosecutor’s fabricating evidence independent of any loss of liberty, such as harm to reputation or the substantive due process right not to be subject to conduct that “shocks the conscience.”
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Saturday, June 22, 2019

GateHouse: The Dual Sovereignty Doctrine lives on

Matthew T. Mangino
GateHouse Media
June 21, 2019
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits anyone from being prosecuted twice for substantially the same crime.
If Aaron Burr, Thomas Jefferson’s vice president, were found not guilty of discharging a firearm when he shot Alexander Hamilton, he could not be tried a second time by the federal government for discharging the firearm. However, if he was found not guilty of discharging a firearm and was later charged with Hamilton’s murder, the second prosecution would not be barred because murder is not substantially the same crime as discharging a firearm.
As with all of the first 10 Amendments to the U.S. Constitution, the Double Jeopardy Clause originally applied only to the federal government.
The Double Jeopardy Clause clearly established that the Founding Fathers viewed the prohibition of successive prosecutions as a fundamental right of individual liberty and an important safeguard against government harassment and overreach.
Double Jeopardy is not unique to American jurisprudence. According to Sir William Blackstone’s Commentaries on the Laws of England, it was a “universal maxim of the common law of England, that no man is to be brought into jeopardy more than once of the same offence.”
However, in the mid-19th century the U.S. Supreme Court carved-out an exception to the Double Jeopardy Clause, known as the “dual sovereignty doctrine.” Three decisions by the Supreme Court between 1847 and 1852 established the framework for the doctrine.
The Court asserted that each citizen owes “allegiance to two sovereigns, (the federal government and the state government) and may be liable to punishment for an infraction of the laws of either.” As a result, the long standing doctrine allows a state to prosecute a defendant under state law even if the federal government has prosecuted him or her for the same conduct under federal law.
Think of it this way. Burr is charged with discharging a firearm in New Jersey by the federal government. The Feds try him and he is found not guilty. The dual sovereignty doctrine allows Burr to be tried again by the state of New Jersey for discharging the firearm.
This week the U.S. Supreme Court affirmed the 170-year-old doctrine. In 2015, Terance Gamble was pulled over by an Alabama police officer for a broken tail light. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm.
Gamble was prosecuted for illegal possession of a firearm, and he served one year in state prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm for the same incident. Gamble asked the U.S. District Court to dismiss his federal indictment for violating double jeopardy.
The District Court ruled that the dual sovereignty exception to the Double Jeopardy Clause permitted a second prosecution for the same offense by a different “sovereign.” The U.S. Court of Appeals for the 11th Circuit agreed and the Supreme Court took up the case last fall.
“We have long held that a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign,” wrote Justice Samuel Alito Jr. for the 7-2 majority. “We see no reason to abandon the sovereign-specific reading of the phrase ‘same offence,’ from which the dual sovereignty rule immediately follows.”
In a surprise pairing, Justices Ruth Bader Ginsburg and Neil Gorsuch wrote separately in dissent.
In splitting from his conservative colleagues Gorsuch wrote, “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy.”
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, June 21, 2019

Death penalty milestone: 1,500th execution during modern era

The 10th Execution of 2019
Marion Wilson was executed in Georgia on June 20, 2019 making him the 1,500 person executed in the United States since the death penalty was reinstated in 1976, reported Vox.
Wilson was convicted in 1997 for committing a murder on the night of March 28, 1996, according to the Georgia Office of the Attorney General. Wilson, who was 18 at the time, and Robert Earl Butts, a fellow gang member, approached Donovan Corey Parks, an off-duty corrections officer, in a Walmart store. They asked Parks for a ride, and witnesses saw the three men get in Parks’s car together. Shortly after, Parks was found face-down, dead on a residential street.
Wilson was indicted for multiple counts — malice murder, felony murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime and possession of a sawed-off shotgun — and was sentenced to death on November 7, 1997. (Butts, who was also convicted of murder, was executed last year.)
Wilson appealed multiple times — unsuccessfully. In a last-minute attempt to dodge his execution, Wilson petitioned to have his sentence commuted to life without parole, arguing that he did not actually pull the trigger and the prosecution exaggerated his juvenile record and gang affiliation in order to secure a death penalty.
The board denied his petition Thursday. Wilson died by lethal injection at Georgia Diagnostic and Classification Prison in Jackson.
Wilson is the second person in the state to have been executed despite not committing the killing — the first being Kelly Gissendaner, who was convicted of planning and covering up her husband’s murder, according to the Death Penalty Information Center.
Georgia especially is tightly intertwined with the history of the death penalty: A lawsuit over Georgia’s use of capital punishment in 1972 led to a moratorium on the death penalty in the United States. Four years later, the Supreme Court upheld the death sentence for another Georgia convict in Gregg v. Georgia, leading to its reinstatement.
Since then, Georgia has executed more people than all but five states, and the South has carried out the vast majority of executions: 1,227 of 1500, including Wilson’s, according to the Death Penalty Information Center.
To read more CLICK HERE

Mangino on Law & Crime Network

Watch my appearance on the Law & Crime Network to discuss the trial of Christopher Vasata in Florida.  To watch the segment CLICK HERE

Thursday, June 20, 2019

Philly DA says rise in crime not his fault

Philadelphia’s District Attorney says he’s not to blame for a rise in shooting deaths, reported WHYY-FM in Philadelphia.
On Monday Police Commissioner Richard Ross said criminal justice reforms in the city could be to blame for a rise in shooting deaths. Ross did not mention D.A. Larry Krasner by name.
“I am concerned right now nationally and locally we are so mired in this notion to being politically correct particularly things about reform. People who otherwise know better, I hear it when I walk the neighborhoods, things need to change,  we need to be far tougher on crime than people are talking about. It is not the narrative right now, it is not what is talked about,” Ross said.
Ross went on to say even those arrested don’t fear the consequences, noting gun arrests are way up but shootings are not less frequent.
Krasner counters that his office has declined to prosecute fewer gun cases than his two predecessors did. He says his predecessor chose not to pursue 3% of gun arrests, but his team decided against prosecuting 2% of gun arrests.
“We bring pretty much anything. When there are facts or law that will support bringing charges of illegal possession of a gun we are there.”
Krasner says his reform approach focuses on nonviolent offenders, such as those arrested for drug possession, not those accused of shootings.
“When the case is not serious there are cases we will decline [to prosecute],” he said. “For example our refusal for bringing charges for the criminal possession of marijuana, but when it comes to it’s one of the areas where we really bore down and we are prosecuting more than the prior administration.”
Krasner says systemic solutions are the way to cut violence, and they aren’t going to be fast, but he has some new plans on the horizon.
One possible solution he says is grouping homicide prosecutions with gun cases, and using more secure courtrooms so victims feel safer testifying.
He says that depends on the court system and if there is available space to move to a different room.
Krasner agrees with Theron Pride, senior director of violence prevention strategies and programs for the Kenney administration who points to a five year plan to cut the violence in Philadelphia.
“As much as we want to solve this problem tomorrow, we know it’s going to take time, an investment of resources, and a coordinated effort and commitment.  We are like everyone else in Philadelphia just dissatisfied and disappointed and reeling from the violence that we see on a far too consistent basis including this weekend,” Pride said.
To read more CLICK HERE

Wednesday, June 19, 2019

Re-thinking sentencing in the age of criminal justice reform

The nation needs to fundamentally rethink who is brought into the criminal justice system and how they are sentenced, a summit hosted by the Aleph Institute was told Monday, according to The Crime Report.
“The paradigm shift should focus not on crime-fighting but [on] community protection,” said John Gleeson, a former U.S. District Judge for New York and one of the speakers at Rewriting the Sentence, the summit held at the Columbia University Law School.
Alternatives to incarceration such as rehabilitation programs, restorative justice practices, and community service-based solutions are positive steps that have shown to increase public safety, panelists said.
Criminal justice reform requires programs to support and reinvest in the potential of those convicted of crimes, and prioritize their mental health, said Esther Salas, a U.S. District Judge from New Jersey.
“People need to be seen and encouraged,” Salas said. “Many of these people have been told their whole lives that they are worthless.”
Matthew Alsdorf, the founder and president of Pretrial Advisors, recommended that the system of money bail be eliminated, because it jails low-risk individuals who cannot pay while allowing high-risk individuals who can to go free.
“We are asking the wrong question when it comes to pretrial detention,” he said. “The right question is: should this defendant be detained?”
Alsdorf continued, “The question that judges answer is: How much money should this defendant pay to get out of jail?”
Joanna Weiss, the co-founder and co-director of the Fines and Fees Justice Center argued the U.S. should work toward the elimination of criminal fees and fines, which have the effect of  criminalizing poverty.
“This really creates two tiers of justice,” Weiss explained. “All those who can pay and leave the system and walk away have one form of punishment. For the people who can’t afford to pay, they end up getting further and further entrenched in the system, until they enter an endless cycle of punishment and also an entrenchment of poverty.”
Weiss pointed to a prominent example of this phenomenon in which individuals who cannot pay their fees have their driver’s license suspended. Because most people need to drive to carry out their basic functions, such as going to their job, these people drive anyway and face criminal charges when they do so.
To read more CLICK HERE

Tuesday, June 18, 2019

SCOTUS remands case for application of Fist Step Act

In the case of Frank Richardson v. United States, SCOTUS remanded the case back to the Sixth Circuit declining the case but directing the circuit court to apply the new First Step Act, reported Jurist. Richardson is currently attempting to appeal his conviction for “aiding and abetting” under the Hobbs Act. Richardson argues that as his appeal is still pending, he may be entitled to resentencing under the First Step Act which was passed earlier this year to lighten harsh federal criminal sentences. The Court agreed with Richardson, but declined to take his case up themselves instead remanding back to the Sixth Circuit to consider the First Step Act.  in the case of Frank Richardson v. United States. Richardson is currently attempting to appeal his conviction for “aiding and abetting” under the Hobbs Act. Richardson argues that as his appeal is still pending, he may be entitled to resentencing under the First Step Act which was passed earlier this year to lighten harsh federal criminal sentences. The Court agreed with Richardson, but declined to take his case up themselves instead remanding back to the Sixth Circuit to consider the First Step Act.
To read more CLICK HERE

Sunday, June 16, 2019

Alabama will chemically castrate some sex offenders

Alabama enacted a law that will require, as a condition of parole, that some convicted child sex offenders undergo “chemical castration,” reported The Atlantic.
The new law will mean that those who abused children under the age of 13 will be injected with hormone-blocking drugs before leaving prison. The medication will have to be administered until a judge, not a doctor, deemed it no longer necessary.
A similar bill was proposed last year in Oklahoma but met strong opposition. The former Soviet republic of Moldova also passed a law mandating chemical castration for child sex offenders, in 2012. It was repealed the following year on grounds that it was a “violation of fundamental human rights.”
Unlike castrating a bull, chemical castration does not involve removing a person’s testicles—though the Alabama bill’s sponsor, Representative Steve Hurst, initially advocated the surgical approach. Instead, the procedure uses various drugs to render the testicles irrelevant. In most cases, medication triggers the pituitary gland to reduce testosterone to prepubescent levels. During debate of the bill, Hurst said that if chemical castration, which has a stated goal of decreasing libido to prevent future crimes, “will help one or two children, and decrease that urge to the point that person does not harm that child, it’s worth it.”
 To read more CLICK  HERE

Saturday, June 15, 2019

GateHouse: When plea bargaining is the only avenue to freedom

Matthew T. Mangino
GateHouse Media
June 14, 2019
In the classic movie adaptation of Mario Puzo's novel "The Godfather," Vito Corleone, played by Marlon Brando, tells his godson Johnny Fontane, played by Al Martino, that he was going to make a move producer "(A)n offer he can't refuse."
Ironically, every day in jails across the country impoverished inmates are made offers they can't refuse. The reason they can't refuse is because their liberty is at stake.
On a daily basis in this county, about a half-million people sit in county jails awaiting trial, most because they are unable to afford bail. According to The Appeal, a 2018 study of defendants in Philadelphia and Miami-Dade counties - by researchers at Princeton, Stanford, and Harvard - reports that people being held for an inability to pay bail earned on average roughly $4,500 a year.
A recent analysis of the Franklin County Jail in south central Pennsylvania found that poor inmates - those who could not afford bail - served their jail time before their sentence. How can an inmate serve his sentence before he or she is determined to be guilty?
In 2016, according to The Appeal, more than 100 people held in Franklin County were found not guilty, had their cases dismissed, or entered a guilty plea and got released on a non-incarceration sentence.
According to The Appeal, in more than 75 percent of the cases, the person charged faced no more than a misdemeanor as the lead charge. The average case lasted 30 days before the defendant was released.
That is how we get to the "unrefusable" offer in the criminal justice system. An accused is arrested on a felony. The defendant does not have the wherewithal to make bond. She sits in jail. The state realizes their case isn't great - witnesses disappear, evidence is weaker than first thought, the defendant has an alibi - the prosecutor offers a plea to a lesser charge and time already served in jail.
The plea is the defendant's ticket out of jail. Now, the defendant could refuse to plead guilty and go to trial. That might mean sitting in jail for months while the case is prepared and scheduled for trial.
Do you see "the offer the defendant can't refuse?" Liberty right now or further incarceration and the risk of conviction at trial and a harsh sentence.
Although there seems to be something inherently wrong with locking up poor people who can't afford bond and then offering the time they already served as the penalty - it is not just the poor who get through the system by negotiation.
Most defendants who pass through the criminal justice system waive the right to a trial, and all the constitutional protections that come with being charged, in exchange for a plea bargain. Emily Yoffe wrote in The Atlantic that the vast majority of felony convictions are now the result of plea bargains - about 94 percent at the state level, and 97 percent at the federal level. Estimates for misdemeanor convictions run even higher.
Although, the American criminal justice system prides itself on the heavy burden placed on the state to prove those accused of a crime guilty beyond a reasonable doubt - very few are actually subject to that burden.
Supreme Court Justice Anthony Kennedy acknowledged as much in 2012, when writing an opinion in a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Kennedy wrote plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."
For those without the ability to post bail, plea bargaining is often the only avenue to freedom.
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

Thursday, June 13, 2019

Maine legalizes medically assisted suicide

Maine legalized medically assisted suicide, becoming the eighth state to allow terminally ill people to end their lives with prescribed medication, reported The Associated Press.
Democratic Gov. Janet Mills, who had previously said she was unsure about the bill, signed it in her office.
“It is my hope that this law, while respecting the right to personal liberty, will be used sparingly,” said Mills.
Oregon was the first state to legalize such assistance, in 1997, and it took over a decade for the next state, Washington, to follow suit. While still controversial, assisted suicide legislation is winning increasing acceptance in the United States, and this year at least 18 states considered such measures.
To read more CLICK HERE

Wednesday, June 12, 2019

Catholic Church leaders face possible racketeering charges over sex abuse scandals

State Attorneys General are looking to just prosecute Catholic priests, some are considering using state racketeering laws usually reserved for organized crime to prosecute higher-ups in the church, reported the Associated Press.
For decades, leaders of the Roman Catholic Church were largely left to police their own. But now, as American bishops gather for a conference to confront the reignited sex-abuse crisis this week, they’re facing the most scrutiny ever from secular law enforcement.
A nationwide Associated Press query of more than 20 state and federal prosecutors last week found they are looking for legal means to hold higher ups in the church accountable for sex abuse. They have raided diocesan offices, subpoenaed files, set up victim tip lines and launched sweeping investigations into decades-old allegations. Thousands of people have called hotlines nationwide, and five priests have recently been arrested.
“Some of the things I’ve seen in the files makes your blood boil, to be honest with you,” Nessel said. “When you’re investigating gangs or the Mafia, we would call some of this conduct a criminal enterprise.”
If a prosecutor applies racketeering laws, also known as RICO, against church leaders, bishops and other church officials could face criminal consequences for enabling predator priests, experts say. Such a move by Michigan or one of the other law enforcement agencies would mark the first known time that actions by a diocese or church leader were branded a criminal enterprise akin to organized crime.
“That would be an important step because it would set the standard for pursuing justice in these cases,” said Marci Hamilton, a professor at the University of Pennsylvania and CEO of CHILD USA, a Philadelphia-based think tank that tracks statute of limitations reforms.
Monsignor G. Michael Bugarin, who handles sex abuse accusations for the Detroit Archdiocese, said they too are committed to ending abuse and cover-ups. Bugarin said they cooperate with law enforcement, and that won’t change if the attorney general is considering organized crime charges.
“The law is the law, so I think we just have to respect what the current law is,” he said.
Some defenders of the church bristle at the notion of increased legal action, saying the Catholic institution is being singled out by overzealous prosecutors. A spokesperson for the United States Conference of Catholic Bishops refused to comment on law enforcement investigations into specific dioceses across the country, instead referring all such inquiries to the dioceses themselves.
Seventeen years after U.S. bishops passed a “zero tolerance” policy against sexually abusive priests, they too are considering new measures for accountability over abuse. And last month Pope Francis issued a global order requiring all Catholic priests and nuns to report clergy sexual abuse and cover-ups to church authorities.
At the conference on Tuesday, Archbishop of Miami Thomas Wenski asked if a greater emphasis should be placed on swiftly reporting allegations to civil authorities.
“If this is something that’s criminal, isn’t the first response to the alleged victim to tell them, ‘this is a crime, call the authorities’?” Wenski asked. “Where we got into trouble before was, before reporting crimes we wanted to take it upon ourselves to determine whether there was a crime to report, and that’s not what we should be doing.”
In response, Cardinal Joseph W. Tobin, chair of the Clergy, Consecrated Life and Vocations Committee, said all bishops should follow the law in reporting crimes to authorities.
The meeting follows a grand jury report that documented decades of clergy abuse and cover-ups in Pennsylvania, which thrust the Catholic Church’s sex assault scandal back into the mainstream last fall and spurred prosecutors across the U.S. to launch investigations of their hometown dioceses.
Since then, many states have launched telephone hotlines or online questionnaires for confidential complaints including Virginia, Nebraska and California.
Pennsylvania has been flooded with calls, some 1,800 from victims and families over the last three years. In Iowa, 11 people who identified themselves as victims and their relatives came forward in the hotline and questionnaire’s first three days. New Jersey and Michigan’s tip lines have received about 500 calls each, while Illinois has received nearly 400 calls and emails, including 160 from survivors.
In contrast, Delaware’s attorney general tip line has had four calls since November, 2018, a spokesperson said. Officials in Vermont say they cannot comment because the investigation is ongoing, but that they are aware of dozens of victims of alleged criminal misconduct.
While priests have been prosecuted in the past, top law enforcement scrutiny of church authorities has been relatively rare. In 2012, Bishop Robert Finn of the Kansas City-St. Joseph diocese in Missouri was the first and only American prelate convicted for his role in aiding a priest, when he was found guilty of failing to report child pornography on a cleric’s laptop to authorities.
AP reached out to attorneys general in 18 states, federal prosecutors in three jurisdictions and the U.S. Justice Department to learn more about the new round of investigations. Some of the accused priests in Pennsylvania had ties to other states, prompting those attorneys general, such as New Mexico, for example, to take a fresh look.
Before Pennsylvania’s attorney general got involved, cases against predator priests were largely the purview of local police and prosecutors, or private attorneys bringing lawsuits and civil claims. Although Pennsylvania’s attorney general office says prosecutors have spoken with their counterparts from almost every state, most attorneys general in the U.S. have not taken public action.
In Kentucky, Attorney General Andy Beshear wanted to investigate but lacked jurisdiction. He worked to change state law, but the bill failed to make it through the legislature.
Attorneys general who are investigating are using a range of tools. Michigan executed search warrants, which means police show up and raid the offices. Delaware, West Virginia and Nebraska have issued subpoenas, which is a less assertive approach, making a legal request for the records. New Jersey officials have started to make arrests, while Washington D.C.’s attorney general is weighing civil charges.
To read more CLICK HERE

Tuesday, June 11, 2019

The Appeal: Pleading guilty to get out of jail in Franklin County, Pennsylvania

In 2016, more than 100 people held in Franklin County Jail who were found not guilty, had their cases dismissed, or entered a guilty plea and got released on a non-incarceration sentence, reported The Appeal. The Appeal collected and reviewed more than 2,200 criminal dockets filed in the county by scraping dockets filed in the Unified Judicial System of Pennsylvania. The review includes all of the criminal cases filed in the county that were not expunged before the review.
In more than 75 percent of the cases, the person charged faced no more than a misdemeanor as the lead charge. The average case lasted 30 days before the defendant was released. What’s more, those cases in which the individual did not pay bail have cost the county the equivalent of more than 8,000 bed days at the jail, or an average of roughly $71 per person, per day.
“We’ve created a machinery that churns out low-level convictions based not on individual guilt or culpability, but on an individual’s ability to pay,” Alexandra Natapoff, professor of law at the University of California, Irvine and author of “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” told The Appeal.
Natapoff described the combination of prosecution of misdemeanor level offenses and unreasonably high bail amounts as the “criminalization of poverty,” lamenting “a now-infamous phenomenon of people pleading guilty merely to get out of jail.”
On any given day, approximately 500,000 people sit in county jails pretrial across the United States, most because they are unable to pay bail. A 2018 study of defendants in Philadelphia and Miami-Dade counties by researchers at Princeton, Stanford, and Harvard universities reports that people being held for an inability to pay bail earned roughly $4,500 a year on average.
The researchers found that less than half of the people who were required to pay bail were able to do so within three days—yielding negative impacts on their cases, such as a higher likelihood of guilty pleas, and on their post-release lives, such as a loss of employment and a greater likelihood of committing a new crime. The authors also found that, compared to defendants who were held for three days or more pretrial, people who were able to post bail within three days were nearly 25 percent less likely to be found guilty or plead guilty. People who were able to post bail were also nearly 25 percent more likely to find gainful employment afterward.In Franklin County, the criminalization of poor people also costs taxpayers. Between 2009 and 2019, the county jail’s operations budget increased more than 40 percent to nearly $13 million per year, which is paid almost exclusively through tax revenue. In that time, the jail’s population has also swelled. In 2009, an average of 297 people per day were held there, according to data compiled by the Vera Institute. About 94 of those people were being held pretrial. By 2015, those numbers rose to 394 and 175. In April, roughly 500 people were being held, and 200 of those were awaiting a trial or sentencing each day.
And yet, the number of reported crimes, criminal case filings, and people receiving a jail sentence—all of which are factors that could cause a rise in incarceration—have remained largely flat. The jail incarceration rate in Franklin County is now more than double that of neighboring Cumberland County and higher than the state average.
Franklin is a rural county in south-central Pennsylvania, on the border with Maryland, that has about 150,000 residents with a median household income of roughly $58,000. More than a quarter of all households earn less than $35,000 and a little more than 10 percent of the population lives at or below the federal poverty line.
The county jail has a rated capacity of a little more than 300 people, which this year forced officials to send an average of 24 people each month to other jails to reduce overcrowding. As a result, the county must pay a daily rate of $55 to $65 per person to use other county jails, costing more than $170,000 through the first four months of this year alone.
Dave Keller, chairperson of the County Commissioners, acknowledges that bail amounts are higher than other counties, but he said he did not believe bail was the driving factor in the increase in the jail population. Keller said the average length of a jail stay has risen substantially while the use of a day reporting center, which allows people to be released before completing their minimum sentence, has decreased.
However, those factors are most likely to affect people who are sentenced to jail and would not account for the more than doubling of the number of people in jail awaiting trial or sentencing.
Keller said the county is in the process of implementing new software that will help better evaluate the role of bail and pretrial incarceration on the jail population.
“The heart of the reform, the heart of the change, would require the misdemeanor system to stop criminalizing poverty,” Natapoff said. “To stop conditioning incarceration and punishment on an individual’s ability to pay.”
To read more CLICK HERE

Monday, June 10, 2019

Is Winston Churchill still alive?

Vanity Fair:
Piers Morgan: “Do you see similarities in yourself to Winston Churchill?”

President Trump: “Well if I ever said that I would be ridiculed all over. He is a great gentleman. I would certainly like to see similarities, but I can’t say that.”

To read more CLICK HERE

Sunday, June 9, 2019

Mentally ill Pennsylvania inmates sit in jail waiting on hospital bed

Pennsylvania is one of many states that has far too few hospital beds for the mentally ill defendants who need them, leaving people to languish in jail while they wait for a spot, reported The Marshall Project. It has ranked among the worst states when it comes to these wait times, a nationwide problem that experts say may be linked to the downsizing of psychiatric hospitals and inadequate community mental-health resources.
In some cases, people facing minor charges have spent longer in jail waiting to go to a hospital than the time they would have served had they been sentenced. State officials across the country are looking for possible solutions, from building more beds to keeping individuals with mental illness out of the justice system entirely.
In Pennsylvania, the state chapter of the American Civil Liberties Union (ACLU) sued the state Department of Human Services in 2015 over these delays, settled twice and has since filed another motion asking the court to intervene.
Data from the state Department of Human Services obtained by The Marshall Project and Frontline show that defendants are finally getting into hospital beds more quickly. As of April, defendants in Pennsylvania waited an average of 24 days to be admitted for “competency restoration”—the legal term for providing basic mental health care so someone is coherent enough to understand the charges against them and assist in their defense. That’s down from the peak of the crisis in January 2017, when defendants had been waiting an average of eight months to get into a hospital and an average of more than a year for Norristown State Hospital.
A spokesperson for the state Department of Human Services said in an email that the agency was working to speed up the system even more, after investing over $63 million since 2016, in part to add 175 more hospital beds, and also funding community treatment options. “We are not able to control the number of referrals we receive for competency restoration treatment,” wrote the spokesperson, Ali Fogarty. “We have been and remain committed to reducing the length of time that individuals in the criminal justice system wait for mental health and psychiatric treatment.”
But wait times are still too long, said Vic Walczak, legal director of the Pennsylvania ACLU. And as the statewide legal battle plays on, families like Marcelline's are stuck in the middle. The ACLU is now pushing for a seven-day limit; federal courts have ruled that anything longer is a violation of rights. “Keeping them in jail is illegal. And from a health perspective, some of them could suffer irreparable harm,” Walczak said.
Legal battles have also been waged over wait times in OregonColoradoAlabamaLouisianaNevadaUtah and Washington. Many states have struggled to comply with court rulings, some racking up millions of dollars in fines and investing millions to build beds to try to meet the need. Civil rights attorneys have filed numerous lawsuits trying to fix this problem by setting strict time limits. But without enforcement, states are routinely blowing past these deadlines.
Attorneys, forensic psychiatrists and hospital administrators say the real problem is a system that fails to distinguish between who needs to be in the justice system and who could be served in a cheaper community setting.
To read more CLICK HERE

Saturday, June 8, 2019

GateHouse: The presumption of innocence

Matthew T. Mangino
GateHouse Media
June 7, 2019
Has the presumption of innocence given way to the presumption of “guilt?”
The concept of presumed innocence is not specifically mentioned anywhere in the U.S Constitution - although a jury, or judge, must presume an accused person innocent until proven guilty beyond a reasonable doubt.
Although the presumption of innocence is an issue for trial, the presumption of “guilt” pre-trial is a growing concern. In a nation that incarcerates more people for longer periods of time than nearly every other nation in the world, the concern is valid.
In this media-driven world with an endless news cycle, men and women “accused” of a crime are vilified within hours of their arrest or even before an arrest - without regard to the fact that the reporting is based on mere allegations.
No one is entitled to the presumption of innocence before trial begins. Scrupulous prosecutors are careful to affix “alleged” when talking about a suspect. Defense attorneys are eager to point out that their clients are innocent until proven guilty. NBC legal analyst Dan Abrams once wrote in The Wall Street Journal, “Demanding that all of us presume every defendant innocent outside of a courtroom is to demand that we stop evaluating facts, thereby suffocating independent thought and opinion.”
Beyond the media, there are a growing number of situations that appear to encroach on fundamental liberty rights before an accused is adjudicated guilty. DNA collected from individuals after arrest, rather than after conviction, is an example of over reach. Opponents say it is unconstitutional and supporters say the measure would prevent violent crime.
The U.S. Supreme Court ruled in 2013 that police can take DNA samples from people who are arrested, but not yet convicted of a crime, and determine if the DNA matches any samples from unsolved crimes in a national database. If the accused is later found not guilty, or exonerated in some manner, his or her DNA is not removed from the database.
I wrote last week about bail pending trial. Those who fight for bail reform argue that imprisoning individuals while awaiting trial, which could easily be months or years in the future, is an egregious civil rights violation and establishes a precedent that could be used to punish or coerce someone accused of a crime.
Those who support a monetary bond system seem satisfied that merely a strong suspicion of guilt is enough to set in motion the punitive aspects of the criminal justice system. How about the movement in many states to extend or repeal the statute of limitations for rape cases? Some argue that rape is one of the vilest things a human being can do to another human being and there should be no limit for prosecuting an alleged rapist. An accused could face criminal prosecution based on allegations of rape that occurred 50, 60 even 70 years ago. The statute of limitation has been around since antiquity. As time passes, memory fades, witnesses die and evidence disappears. The statute of limitations protects individuals from facing charges under those hopeless circumstances.
Finally, a fundamental principle of criminal law has long been that the government must prove a defendant’s criminal intent to commit a crime. This legal protection is now being eroded as Congress continues to churn out legislation in dramatic numbers. In the last quarter century, there has been an onslaught of federal laws enacted that weaken the government’s responsibility to prove criminal intent. The increasing number of crimes and the absence of having to prove the willful nature of conduct is alarming.
While the presumption of innocence is for trial, judges and lawmakers alike should not make it increasingly more difficult for an innocent person to protect his or her liberty interests and the right to mount a vigorous defense.
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, June 7, 2019

The Crime Report: 'Judges Influenced by Fox News Give Harsher Sentences'

Elected judges impose harsher criminal sentences on defendants if they watch conservative news media, in particular Fox News, according to a Columbia Business School research paper, reported The Crime Report.
“Higher Fox News viewership increases incarceration length, and the effect is stronger for black defendants and for drug-related crimes,” wrote Elliot Ash, Ph.D., Assistant Professor of Law, Economics, and Data Science at ETH Zurich, and Michael Poyker, Ph.D., a postdoctoral researcher at Columbia University.
Building on the assumption that “greater exposure to partisan television news has an impact on voting in presidential elections and congressional position-taking,” the study authors scrutinized whether partisan news has an effect on judges’ rulings, scrutinizing data on almost 7 million criminal sentencing decisions in the United States for the years 2005 to 2017.
Their conclusion: “Conservative television media exposure has a causal effect on judge decision-making.”  
To research their paper, “Conservative News Media and Criminal Justice: Evidence from Exposure to Fox News Channel,” Ash and Poyker used word clouds, compared national sentencing data, and examined Fox viewership.
“We use combined microdata on criminal sentencing decisions from the National Corrections Reporting Program and a unique dataset with the universe of sentencing decisions linked to judge biographies from ten states … paired with data on cable news viewership at the county level,” they wrote.
Conservative-news watching had no measurable effect on appointed judges, according to the research paper.
“The appointed judges have tenure, and therefore face minimal political pressures once in office,” Ash and Poyker wrote. “We find that Fox News increases sentencing only for elected judges. Voters might become more conservative due to Fox News exposure, and in particular due to media attention on felony cases.
Meanwhile, lawyers/prosecutors put active pressure on judges threatening to find candidates to displace then; that would increase electoral pressures on judges to be harsher in sentencing decisions.”
The study authors trained word2vec, a popular word embedding model, on transcripts for Fox, CNN, and MSNBC, for the years 2001 through 2013. “This model works by reading through sentences and locating words close to each other in a vector space if they tend to occur in similar contexts (that is, windows of neighboring words). Similarity between words can then be measured using the cosine of the angle between the vector representations of each word.
In the transcripts data, the most similar words to ‘crime’ were ‘crimes,’ ‘murder,’ ‘homicide,’ ‘perpetrator,’ ‘felonies,’ and other synonyms or closely related terms.”
Ash and Poyker took sentencing data from the National Corrections Reporting Program (NCRP) that contains information for “all prison admissions in the United States from 2000 to 2014.” NCRP’s data was cross-referenced with sentencing data from a previous study done by Poyker and Dippel (2019)because of its case-level detail of accessible judge’s information.
From there, Ash and Poyker only used data from 10 states with judges’ information in the case files. Those states are Alabama, Colorado, Georgia, Kentucky, Minnesota, North Carolina, Pennsylvania, Tennessee, Virginia, and Washington.
“We establish a racial bias in the effect of conservative discourse on criminal justice decisions, and this is linked to drug crimes,” they wrote. “As Blacks are disproportionately arrested for non-violent drug related offenses, the effect could be driven by racial bias in media messaging. Alternatively, it could be that ‘tough-on-drugs’ rather than ‘tough-on-crime’ rhetoric matters in this setting.”
Ash and Poyker looked at viewership based on Nielsen’s channel positions and ratings analytics that categorized viewership with zip codes. (Ctrl-F Media Data)
Interestingly, the effect of Fox News on elected judges becomes weaker in the run-up to the election date, according to this report.
“One interpretation of this result is that politicized information and politicized incentives are substitutes, rather than complements. As electoral pressures become stronger, media effects are reduced.
Another possibility is that Fox News content becomes more election-focused, and less devoted to crime, in the run-up to elections.”
To read more CLICK HERE