Monday, August 10, 2020

Toobin examines Mueller investigation in new book

Katie Benner's New York Times review of Jeffrey Toobin's latest book, “True Crimes and Misdemeanors," wherein the author explains why President Trump came out basically unscathed, despite the fact that, as he writes, the president “never really pretended to be anything other than what he was — a narcissistic scoundrel.” He rightly argues that the investigation was an utter political failure.

Mueller ran a by-the-book, narrow inquiry and adhered to Justice Department rules that bar comment about ongoing investigations. He provided ample evidence that the president broke the law, but in the end he would not clearly say as much. His equivocation provided the president room to declare that Mueller found “no collusion and no obstruction.” Toobin says that this half-truth and falsehood, respectively, were a rhetorical success because “simplicity rarely loses to complexity in battles in the public square.”

Trump, bound by very little, used his pulpit to misrepresent the investigation as an out-of-control witch hunt and the investigators as partisan liars and leakers. Neither Mueller nor the Justice Department fought back, which Toobin says let Trump publicly define the special counsel’s work.

Toobin’s narrative unfolds like a tragedy. Before and after the tumult of the 2016 election, the Justice Department investigated the Trump campaign for ties to Russia; once in office the president opposed their work. As Trump pressured department officials to protect his associates, Mueller was quietly tapped in May 2017 to serve as special counsel and take over the investigation.

That Trump would eventually undermine Mueller seemed absurd on its face. Their résumés paint them as nearly caricatures of a hero and a villain: Mueller a decorated Vietnam War veteran and devoted civil servant who led the F.B.I. in the aftermath of 9/11; Trump a dishonest businessman and D-list reality show star who once described dodging sexually transmitted diseases as his “personal Vietnam.” Simply presenting them side by side “is to challenge the conventions of journalistic balance,” Toobin writes.

Toobin primarily relies on details from the Mueller report and the public record to reconstruct the investigation, but his own reporting yields striking new information, especially in the case against the Internet Research Agency, a Russian company that weaponized social media to manipulate voters. It was Facebook itself that brought the special counsel evidence that the Russian outfit had used the platform to help Trump. Jeannie Rhee, the Mueller team member who built the case against the I.R.A. for defrauding the United States, faced a quandary. The company hadn’t hacked Facebook or committed a traditional cybercrime. In fact, it used the platform as intended, sharing viral information that influenced users. Employed as designed, Facebook had become the perfect weapon, but how did that violate United States law?

That question foreshadowed one of the investigation’s central dilemmas: What do you do when you uncover acts that don’t explicitly violate the law but that clearly seem wrong?

Mueller’s prosecutors could not prove beyond a reasonable doubt that the Trump team coordinated with Russia, even though campaign associates seemed aware that the Kremlin was interfering in ways that likely favored them. Paul Manafort, Trump’s campaign manager, shared polling data with an oligarch linked to Vladimir Putin, the Russian president. Donald Trump Jr. agreed to meet at Trump Tower with a lawyer who represented Russian interests, after being told that he might obtain negative information about Hillary Clinton. But neither of those facts led to charges.

The 2017 revelation about the I.R.A. was part of the special counsel’s whirlwind first year. In the fall it unsealed a guilty plea from the former campaign associate George Papadopoulos, who had lied to investigators. It indicted Manafort for financial crimes related to his lobbying work for pro-Russian interests in Ukraine. It then indicted the I.R.A. for interfering in the election, as well as other Russian operatives for hacking the Democrats. And in November it had what felt like an enormous breakthrough: Don McGahn, the White House counsel, told Mueller’s team that Trump had demanded that he fire Mueller — the clearest evidence yet that the president obstructed justice.

But at that point, the investigation stalled and never regained momentum, in large part, Toobin says, because Mueller was overly cautious. He chose not to probe Trump’s financial ties to Russia, examine his personal finances or obtain his tax returns. Investigators tried other methods to establish connections between Trump and Russia but the president’s associates stymied efforts to penetrate Trump’s orbit.

Mueller didn’t subpoena Trump after he reneged on an agreement to be interviewed at Camp David in January 2018 — which Trump saw as a sign of weakness and Toobin as Mueller’s key misstep. Trump was further emboldened in May, when Mueller’s deputies told the White House that they would not indict the president, in deference to a Justice Department legal opinion on the matter. Trump’s public attacks helped to end the bipartisan support that Mueller initially enjoyed, and made it nearly impossible for Congress to use his findings as the basis for oversight measures, or even impeachment, once opinion about him broke along party lines.

Toobin’s absorbing, fast-paced narrative is anchored by detailed scenes of chaos inside the Trump administration and meetings between Trump’s and Mueller’s lawyers. But it provides no hard information about how and why Mueller came to make his most significant and ill-fated decisions. As a former prosecutor and legal analyst, Toobin can offer somewhat satisfying educated guesses, but ultimately Mueller’s caution and restraint remain an enigma.

What is clear is that the Mueller investigation ultimately taught Trump that he could largely act with impunity. No one in his administration, or in any other branch of government, stopped him from attacking the Russia probe, dodging an interview with Mueller’s team and dangling pardons before witnesses to keep them from cooperating with investigators. He emerged from the two-year inquiry unbroken, unbowed and emboldened. And before the ink was dry on the report, he embarked on an effort to strong-arm Ukraine into announcing that it would investigate Joe Biden and his son. It also taught the American people that our system of checks and balances no longer works when Congress believes it should enable, rather than oversee, the president.

The Mueller report has been eclipsed by a parade of fresh crises, and its immediacy has faded. A whistle-blower complaint about Trump’s dealings with Ukraine led to his impeachment this past winter. A pandemic has resulted in over 150,000 American deaths and brought the economy to a standstill. And several recent killings of unarmed Black people sparked a summer of nationwide protests and a revived civil rights movement.

But Toobin’s larger argument is that Trump’s attacks on democracy will grow only more extreme in the months to come. If he is right, then “True Crimes and Misdemeanors” stands as a chilling preview of what to expect should Trump win a second term, and also as a road map for all that needs repair should he lose.

To read more CLICK HERE

Sunday, August 9, 2020

U.S. Intelligence: Russia Continues Interfering in Election to Help Trump

Russia is using a range of techniques to denigrate Joseph R. Biden Jr., American intelligence officials said  in their first public assessment that Moscow continues to try to interfere in the 2020 campaign to help President Trump, reported the New York Times.

At the same time, the officials said China preferred that Mr. Trump be defeated in November and was weighing whether to take more aggressive action in the election.

But officials briefed on the intelligence said that Russia was the far graver, and more immediate, threat. While China seeks to gain influence in American politics, its leaders have not yet decided to wade directly into the presidential contest, however much they may dislike Mr. Trump, the officials said.

The assessment, included in a statement released by William R. Evanina, the director of the National Counterintelligence and Security Center, suggested the intelligence community was treading carefully, reflecting the political heat generated by previous findings.

The White House has objected in the past to conclusions that Moscow is working to help Mr. Trump, and Democrats on Capitol Hill have expressed growing concern that the intelligence agencies are not being forthright enough about Russia’s preference for him and that the agencies are introducing China’s anti-Trump stance to balance the scales.

The assessment appeared to draw a distinction between what it called the “range of measures” being deployed by Moscow to influence the election and its conclusion that China prefers that Mr. Trump be defeated.

It cited efforts coming out of pro-Russia forces in Ukraine to damage Mr. Biden and Kremlin-linked figures who “are also seeking to boost President Trump’s candidacy on social media and Russian television.”

To read more CLICK HERE

Saturday, August 8, 2020

GateHouse: Lifting barriers to success starts with reinstating driving privileges

Matthew T. Mangino

GateHouse Media

August 7, 2020

Paul Bell was a preacher in Georgia in the late 1960s. The weekend before Thanksgiving 1968, Bell was driving to one of the three churches he oversaw when 5-year-old Sherry Capes crashed her bicycle into the side of Bell’s car.

Bell didn’t have insurance. At the time, Georgia law provided that the registration and license of an uninsured motorist involved in an accident would be suspended unless the motorist posted a bond to cover the cost of any claim.

Bell fought his case all the way to the U.S. Supreme Court contending that before his license was suspended, he was entitled to a hearing to show he was not at fault. In 1971, the High Court ruled that the holder of a driver’s license has a property interest in that license and that the license may not be suspended or revoked without due process of law.

The requirements of due process include notice and an opportunity to be heard at a hearing. Due process may also require an opportunity to confront witnesses and the right to be represented by counsel.

In Bell’s case the Supreme Court concluded that once issued, a driver’s license was essential in the pursuit of Bell’s livelihood. Bell traveled to three different churches to serve his rural congregations. For everyone else, it meant a driver’s license was more than just a piece of paper - it had value and could not be arbitrarily taken.

Access to a driver’s license has an enormous impact on prisoner reentry. More than 620,000 people are released from federal and state prisons each year and return to their communities. While these and other individuals have already served their prison or jail sentences, are currently serving probation or parole, or have completely exited criminal supervision, they still face numerous barriers to reintegrating into society. Those barriers are known as the collateral consequences of their conviction.

According to the National Institute of Justice, there are more than 44,000 collateral consequences nationwide, including obtaining a driver’s license.

Nearly 50 years after Bell’s case, a number of states still impose mandatory driver’s license suspensions for certain drug offenses, without due process of law, regardless of whether the crime has anything to do with driving. In fact, Title 23 of the United States Code provides for withholding federal funding from any state that does not revoke or suspend the driver’s licenses of individuals convicted of drug offenses.

A study conducted by the American Association of Motor Vehicle Administrators revealed that more than one third of all driving privilege suspensions are for non-highway safety reasons.

A driver’s license is not a privilege - it is a necessity. Individuals who live in rural areas with limited access to public transportation - and there are a lot of such across the country - are essentially stranded without access to even basic necessities without the help of neighbors, family and friends.

When Pennsylvania Gov. Tom Wolf signed legislation eliminating driver’s license suspensions for non-driving infractions he said, “We need to break down even more unnecessary and especially difficult roadblocks to success and stability. Having a valid driver’s license often is the key to finding and keeping a job.”

The recent efforts to reverse the barriers to obtaining a driver’s license didn’t stop with Pennsylvania. California followed, ending the practice of suspending licenses for unpaid traffic fines, while officials in Michigan wiped out millions of dollars in debt from unpaid “driver responsibility fees” that led to thousands of license suspensions.

On July 1, a new Illinois law took effect that eliminates driver’s license suspensions for most non-moving violations, reinstating driving privileges for thousands of people.

Progress is being made, but there is more work to be done.

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 at @MatthewTMangino.

To read more CLICK HERE


Friday, August 7, 2020

DHS Secretary's former clients earn $160 million in government contracts

Several former lobbying clients of Chad Wolf, now the acting secretary of Homeland Security, have received millions of dollars’ worth of government contracts while he has held senior positions within the department, reported CNBC. 

Wolf, who became the acting chief of the department late last year, was a lobbyist for over a decade at Wexler & Walker before he took leadership roles with DHS under President Donald Trump. Wolf served as the acting chief of staff at the Transportation Security Administration in 2017 and later became the chief of staff for former Homeland Security Secretary Kirstjen Nielsen.  

Since then, several of Wolf’s former clients reaped a total of at least $160 million in contracts from DHS, according to a CNBC analysis of the public filings. 

A DHS spokesman told CNBC that Wolf has no involvement with any government contracts. 

“Acting Secretary Wolf has had zero involvement in DHS contract awards, including contracts won by his former clients. He leaves those matters to the career professionals in the DHS Chief Procurement Office,” the agency spokesman said. 

After joining TSA, Wolf recused himself from DHS matters that involved his former clients. He has maintained that recusal throughout his tenure at the department. 

Still, Democrats pounced on the revelation, arguing that it marks the latest example of how the Trump administration acts against the president’s own promise of “draining the swamp.” 

“Donald Trump and Chad Wolf’s flagrant conflicts of interest screw taxpayers over while rewarding their crony friends and special interests. When voters sent Trump to Washington, they thought he would ‘drain the swamp,’” Kyle Morse, a spokesman at Democratic super PAC American Bridge, told CNBC.

Trump signed an executive order in 2017 that banned former lobbyists and lawyers from taking part in government matters linked to their previous clients for the first two years of their tenure in the administration. Some Trump officials, however, have been given waivers to that rule. Wolf’s name is not on the public waiver list that was issued in April of this year.  A list created by ProPublica showing Trump aides who signed the ethics waiver also does not include Wolf. 

The executive order also called on former Trump officials not to take part in lobbying for the five years following their appointments. The nonpartisan Center for Responsive Politics shows that even after being a member of the Trump White House, many do go on to work for lobbying firms. 

The developments also come as Wolf and the department are under scrutiny by Democrats for how they treated protesters in Portland, Oregon. The protests stemmed from the unrest following the Minneapolis police killing of George Floyd, an unarmed Black man, on Memorial Day. 

Among the former Wolf clients to receive multimillion-dollar contracts are American Science and Engineering, an X-ray equipment manufacturer; ABB, an automation company based in Switzerland, and Analogic Corporation, a technology business owned by private equity firm Altaris. These companies did have other contracts with DHS before Wolf arrived there. 

One American Science and Engineering contract, which took effect on July 1, 2018, is worth just over $80 million, a filing says. The company, in this case, is dedicated to supplying U.S. Customs and Border Protection, which is under DHS, with maintenance and support services. AS&E, which, according to its website, is now owned by Rapiscan Systems, saw at least $93 million in DHS contract obligations in 2018.

Analogic received over $9 million in DHS contracts between 2017 and 2018. In 2017, Analogic announced a $4 million base contract with TSA, another agency under Homeland Security.  

The contract allowed Analogic “a 12-month development phase and 24 months of prototype warranty, with options for additional ConneCT prototypes and warranty for a period of 24 months at the TSA’s discretion,” the release, dated Nov. 2, 2017, says. 

From 2008 until 2010, Wolf lobbied TSA for Analogic on issues related to security equipment, lobbying disclosure reports say. The New York Times reported that Wolf tried to help Analogic sell its carry-on baggage equipment to TSA when he was still working at Wexler & Walker. Wolf, who also worked at TSA during the Bush administration, later became the agency’s acting chief of staff under the Trump presidency. 

ABB, which had tapped Wolf to lobby Congress on its behalf, also saw a major contract go its way while Wolf held top positions at DHS. ABB received a DHS government contract worth $5.6 million for services dedicated to the U.S. Coast Guard. 

Wolf lobbied for ABB until 2016. Filings show that during his last year of work for the company, he focused, in part, on issues related to the “United States Coast Guard Icebreaker,” a fleet of ships that have the ability to go through thick sheets of ice in places such as the Arctic.  

An ABB spokesman gave details about the focus of the contract and noted that the company has had no contact with Wolf since he finished his tenure as a lobbyist. 

“The contract referenced in your email is a service and maintenance contract for a vessel commissioned with an ABB Azipod propulsion system back in 2006,” the spokesman, Chris Shigas, explained. “To our knowledge, ABB representatives did not meet or discuss any agreements with Mr. Wolf since he left Wexler Walker.”  

Representatives for Analogic and AS&E did not respond to requests for comment. 

To read more CLICK HERE

Thursday, August 6, 2020

Manhattan DA expands investigation into Trump's defunct charity

In a recently released court filing, the office of Manhattan District Attorney Cyrus Vance Jr. said that the prosecutor has expanded the inquiry into President Trump’s now defunct charity beyond the original claims of illegal hush money payments and is investigating other potential criminal actions.

The Manhattan District Attorney’s office has been investigating claims since 2018 that Trump used funds from his private charity, the Trump Organization, to pay women with whom the President had extramarital affairs in exchange for their agreement not to publicly speak of the affairs. The President argued that the subpoenas issued by the office for his personal tax returns and those of his charity were illegal, an argument which the Supreme Court rejected in July. 

Following the Supreme Court decision, Trump’s attorneys amended their complaint at the District Court, arguing instead that the subpoenas sought by Vance were improper because of “overbreadth” and “in bad faith” because the records sought date from before the alleged hush money payments were made.

In the response to the amended complaint, Vance stated that allegations of further wrongdoing at the Trump Organization have been “public knowledge” and widely reported by media and therefore the subpoenas are not overbroad. In particular, the response cited numerous articles in the Washington Post and Wall Street Journal to illustrate that potential illegal activity at the charity was not limited to the hush money payments.

To read more CLICK HERE 

Wednesday, August 5, 2020

Gun violence on the rise in some big cities

Gun violence has been rising lately in some of the biggest American cities. It’s happened in New YorkChicagoPhiladelphia and, perhaps most notably, Minneapolis, the scene of the brutal killing of George Floyd and the intense protests that followed, reported the New York Times.

The trend raises a question: Is it possible to change the nature of policing in the United States — and to make it less violent, as protesters are demanding — without unleashing other kinds of violence?

First, the crime increase is not just statistical noise. It’s real, even if there are sometimes multiple causes, depending on the city. “It is a pattern,” Sharkey said. “When there have been large-scale protests against police, it is pretty clear that some police have stopped doing their jobs, and that’s destabilizing.”
Before this year, the biggest examples were in 2015, in Baltimore and in Ferguson, Mo., where crime also rose after protests. “I worry this is going to be a violent summer in a lot of cities,” Sharkey added.

But a second point is also vital: The rise in violence is not inevitable.

It happens because some police officers respond to criticism by staging a work slowdown — and because the U.S. relies on the police to fulfill so many roles that other civic organizations could accomplish. That reliance also has huge downsides.

“Police are effective at controlling violence, but there are all these costs,” Sharkey said. They include mass incarceration and widespread violence committed by the police, often against Black men.

“But there are alternatives that maintain safe streets without the costs,” says Sharkey, who was previously the scientific director of Crime Lab New York and is now a Princeton professor. “There is now a body of evidence showing these are not just feel-good stories. The effects are very real.”

The alternatives include conflict-resolution counselors, addiction and mental-health programs, summer-jobs and after-school programs and more. The Cure Violence program, in Chicago, New York and elsewhere, is an example. (For more detail, read this 2017 Times article.)

“We’ve asked police departments to be the primary force that responds to many situations,” Sharkey said. That’s not the only option, of course. But when it’s the approach that cities take — and when police then respond to protests by pulling back — violence often does increase.

Tuesday, August 4, 2020

PA Gov. Wolf signs two police reform bills into law

Gov. Wolf signed two police reform bills, one requiring police officers to disclose their employment history and the other requiring officers to undergo regular mental health evaluations and training.
The passage of these bills marked the first legislative action taken after the George Floyd protests at the capital, reported the Harrisburg Patriot.
“We have made progress in six weeks, but we are far, far from the finish line,” Wolf said. “My executive order and the bills I’m going to sign in the next few minutes are still not enough to halt the systemic racism and oppression that exists throughout our commonwealth.”
Attorney General Josh Shapiro, State Police Lt. Col. Christopher Harris, and state Reps. Dan Williams and Christopher Rabb also spoke at the signing.
“Today, Pennsylvania becomes one of the only states in our country to change our laws in the wake of George Floyd’s murder,” Shapiro said. “When the governor signs his name, that will be a downpayment on the types of reforms we need to deliver on here in Pennsylvania.”
Here’s what we know about each of the bills that passed:
House Bill 1841 will require police agencies to do thorough background checks of any new hires through a statewide database that holds information on disciplinary actions and separation records of all police officers in the state.
Before the passing of this bill, there was no standardized way for police departments to share misconduct records or disciplinary actions with other law enforcement agencies. That meant a police department hiring an officer had no way of knowing if that officer had a history of, for example, of being disciplined for excessive use-of-force.
House Bill 1910 will require enhanced training for police officers on how to treat people of diverse racial, ethnic and economic backgrounds. It also requires officers to take a Post Traumatic Stress Disorder test every two years, or within 30 days of a lethal use-of-force.
The bill also requires implicit bias training and annual training on appropriate use-of-force.
Police organizations across the state have voiced their support for these reforms, including the Pennsylvania State Troopers Association.
“Systemic racism is a complex issue, and it has existed for centuries, and in so many ways, it’s ingrained in our society,” Wolf said.
Two other police reform bills are headed to the state House for action. Senate Bill 459 would require all police departments to report any use-of-force incidents to the state police. The state police would then be required to present annual use-of-force reports to the attorney general. It’s uncertain if these reports will be made public.
Senate Bill 1205 would require police departments to publish their use of force policies and limits the use of chokeholds to instances where deadly force is needed.
To read more CLICK HERE

Monday, August 3, 2020

SCOTUS to decide if suspect who escapes after shot by police can sue

Last month, the Supreme Court refused to hear eight cases on qualified immunity, a doctrine that makes it hard to sue police officers and other officials for misconduct and, as a result, has become a flash point in the nationwide uproar over police brutality, wrote Adam Liptak of the New York Times. That move disappointed critics across the political spectrum who had hoped the court would play a role in helping resolve the broader debate.
But Ms. Torres’s case, which presents an even more fundamental issue, was already on the Supreme Court’s docket. It had been scheduled to be argued in March, but the court postponed it in light of the coronavirus pandemic. It will now be heard in October.
The justices may have wanted to duck the question of police violence. The case from Albuquerque, Torres v. Madrid, No. 19-292, will force them to confront it.Early on a summer morning in Albuquerque in 2014, two state police officers in dark tactical gear arrived at a housing complex to serve an arrest warrant. In the parking lot, they came upon Roxanne Torres, sitting in her car with the engine running.
Ms. Torres was not the woman they were looking for. But the officers, who did not identify themselves, approached her car. Taking them for carjackers, Ms. Torres started to drive away. The officers shot at her 13 times, hitting her twice, but she managed to flee. 
Ms. Torres sued the officers who shot her, Richard Williamson and Janice Madrid, saying they had used excessive force in violation of her Fourth Amendment rights. The amendment bars unreasonable searches and seizures, and the courts have long treated the use of excessive force by the police as a seizure.
Had the officers managed to stop Ms. Torres, there would be no question that she could sue. She might not win, as courts would then consider whether the seizure was reasonable and whether the suit was blocked by qualified immunity. But her suit would not have been shut down from the start.
The question for the justices is whether it should matter that Ms. Torres managed to escape. The United States Court of Appeals for the 10th Circuit, in Denver, ruled that it did. “A suspect’s continued flight after being shot by police,” the court said, “negates a Fourth Amendment excessive-force claim.”
That is hard to square with a statement in a 1991 Supreme Court decision, which said that “the word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.”
Precisely what happened on the morning of July 15, 2014, is contested, but there is no dispute that the officers shot an unarmed woman as she tried to drive away. The officers say they feared that Ms. Torres would run them over.
Ms. Torres soon lost control of her car, stopped in a parking lot and asked a bystander to call the police. Receiving no response, she stole a car that had been left running and drove 75 miles to a hospital in Grants, N.M.
She was airlifted to a hospital in Albuquerque, where she was arrested. She pleaded no contest to charges of fleeing from a police officer, assaulting a police officer and stealing a car.
Even the Trump administration says Ms. Torres was entitled to sue. “A subject’s escape will render the seizure fleeting,” Solicitor General Noel J. Francisco wrote in a friend-of-the-court brief, “but will not negate the seizure entirely.” The brief went on to say that Ms. Torres may well lose her case, but on other grounds.
The NAACP Legal Defense and Educational Fund, in a brief supporting Ms. Torres, urged the justices to take account of the history of police violence.
“From the very inception of modern American law enforcement, weapons — and firearms specifically — have been deployed as a means of policing and oppressing African-American communities,” the brief said. “Today, far too many police officers continue to draw and use guns as a means of unjustified control of African-Americans, rather than for valid law enforcement reasons. The 10th Circuit’s decision leaves these countless people without recourse.”
Even if Ms. Torres wins at the Supreme Court, she will have to overcome the doctrine of qualified immunity to prevail in the lower courts. Under that doctrine, officials may be sued for violations of constitutional rights only if the right at issue was clearly established at the time of the conduct in question.
The Supreme Court has used an exquisitely narrow definition of what counts as “clearly established.” Instead of looking to general principles, it requires the plaintiff to do something very difficult in most cases: to identify a decision that concerned nearly identical factual circumstances.
It will not be easy for Ms. Torres to find, for instance, an earlier decision based on circumstances very like her own.
Both Justices Clarence Thomas and Sonia Sotomayor, probably the court’s most conservative and liberal members, have criticized qualified immunity. Justice Thomas wrote that it was created out of thin air. Justice Sotomayor wrote that it had created an impenetrable legal barrier protecting police officers.
The court’s approach, Justice Sotomayor wrote in a 2018 dissent, “sends an alarming signal to law enforcement officers and the public.”
“It tells officers that they can shoot first and think later,” she wrote, “and it tells the public that palpably unreasonable conduct will go unpunished.”
To read more CLICK HERE

Sunday, August 2, 2020

Commission to study the impact of COVID-19 on criminal justice system

The Council on Criminal Justice (CCJ) has launched a national commission to assess the impacts of COVID-19 on the criminal justice system, develop strategies to limit outbreaks, and produce a priority agenda of systemic policy changes to better balance public health and public safety.
Led by former U.S. Attorneys General Alberto Gonzales and Loretta Lynch, the National Commission on COVID-19 and Criminal Justice will:
Evaluate the pandemic’s impact on the four major sectors of the justice system (law enforcement, courts, corrections, and community programs);
Identify the most effective ways to minimize the spread of COVID-19 and the impact of future pandemics on the proper functioning of the justice system, and on the people who work in and are served by it; and
·         Establish a priority agenda of policies and practices that should change, or remain changed, based on what the pandemic and response have revealed about the system’s fairness and effectiveness, particularly for communities of color.
·         At its opening meeting, the Commission was presented with the first in a series of reports presenting new research on COVID-19 and criminal justice. The study, by Richard Rosenfeld and Ernesto Lopez of the University of Missouri-St. Louis, examined crime trends from 27 cities leading up to the pandemic and through June. It found that:
·         Property and drug crime rates fell significantly, coinciding with stay-at-home mandates and business closings. Residential burglary dropped by 20% between February and June 2020. Larceny and drug offenses decreased by 17% and 57%, respectively, between March and June 2020. These declines reflect quarantines (residential burglary), business closings (larceny), and reduced police and street activity (drug offenses).
·         One exception to the drop in property crime was commercial burglary, which spiked by 200% for a single week beginning in late May. The spike is likely associated with the property damage and looting at the start of nationwide protests following the killing of George Floyd.
·         Rates of violent crime showed little change early in the pandemic but began to increase significantly in late May. Homicides (37%) and aggravated assaults (35%) rose significantly in late May and June. The increases could be tied to diminished police legitimacy in the wake of protests after Floyd’s killing.
·         Robbery rose significantly – by 27% — between March and June 2020.
·         Domestic violence also rose, but the increase was not significantly greater than in previous years. In addition, the finding was based on data from only 13 of the cities studied, and thus requires further examination.
To learn more CLICK HERE

Saturday, August 1, 2020

GateHouse: The Confrontation Clause and the return of jury trials

Matthew T. Mangino
GateHouse Media
July 31, 2020
A murder trial resumed this week in New York after the COVID-19 pandemic shut the proceeding down in March. When the trial restarted, after nearly a four-month break, the courtroom was a different place.
The recently resumed trial featured court personnel, jurors, attorneys, witnesses and spectators donning all sorts of personal protective equipment. According to Frank Runyeon of, the judge “was decked out in white latex gloves, a blue face mask, spectacles and a plastic face shield as he sat behind plexiglass dividers mounted to the bench.”
The judge’s speech was muffled to the point that attorneys, sitting behind their own fortress of plexiglass walls, masks and face shields, often asked him to repeat himself. The return of jury trials in the midst of a pandemic is crucial - men and women accused of crimes have been sitting in jail awaiting their day in court. Those men and women are guaranteed a speedy trial.
However, bringing those accused of a crime to trial brings with it a host of problems - some of which may be around long after the pandemic is gone. At this point, the primary concern is the health and well-being of everyone involved in the process. That is being addressed in a manner that may contravene the U.S. Constitution.
The Sixth Amendment to the U.S Constitution provides various rights to criminal defendants, one of which is the right to be confronted with the witnesses against them. This right is derived from what is known as the Confrontation Clause.
Since the onset of the pandemic, many courts have conducted hearings via video or telephone. I have participated in virtual hearings. While they help move things along, witnesses and attorneys participating over Skype, Zoom or some other platform are often subject to delay or the freezing of the video and/or audio. The record, the transcription of the proceeding, is often a mess with lawyers talking over witnesses or witnesses talking over judges or a mix of both.
However, a criminal trial is different. In a criminal trial, a person’s liberty is at stake. Remote testimony is inadequate. In 1988, the U.S. Supreme Court said that the Confrontation Clause guarantees “a right to meet face to face all those who appear and give evidence at trial.”
One hundred years earlier, the Supreme Court said the “primary object” of the Confrontation Clause is to prevent depositions or ex parte affidavits from being used in court in lieu of a “personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”
Can this be achieved when the lawyers conducting the examination are wearing a mask and the witness being examined is wearing a face covering as well? Can a juror adequately judge the credibility or believability of a witness who is wearing a mask?
The face-to-face encounter implicit in the Confrontation Clause is not only between accuser and accused, but between accuser and jury. Eugene Volokh, a blogger and professor at UCLA Law School, writing about a case involving a female witness wearing a headscarf, suggested, “That encounter enables the jurors ‘to obtain the elusive and incommunicable evidence of a witness’(s) deportment while testifying;′ an ability, our Supreme Court has explained, that is ‘as important a component of the right of confrontation as the defendant’s opportunity to cross-examine the adverse witness.’”
A witness with a face covering may be able to hide the pursing of lips, a smile or expression indicative of the witness’ comfort or unease, hesitance or confidence, indifference or nervousness.
A mask also puts the examiner at a disadvantage. Our system of zealous advocacy is based on a lawyer’s thorough probing of a witness to get at the truth. Cross-examination is often based on the observations of a trained trial attorney. Facial expressions and reactions to questioning often guide a lawyer through cross-examination.
The pandemic will end. The challenges to trials conducted remotely or without the protections of the Sixth Amendment will be around long 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 at @MatthewTMangino.
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Friday, July 31, 2020

President Trump on Twitter, July 30, 3020: 'Delay the Election until people can properly, securely and safely vote???'

Presidential elections are currently held on the first Tuesday after the first Monday in November. This year, that is November 3, 2020.

The US Constitution demands via the 20th Amendment that the President’s term must end on January 20 of the year following the general election, reported Jurist. The 20th Amendment also requires a new Congress to be installed by January 3. Article II, Section 1 provides guidance for the electoral process. Initially, each state much appoint a number of electors to the Electoral College. Then, Congress may determine “the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

Additionally, Congress has enacted a law to further control the date of elections. It clarifies: “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December . . . .” This year, that day is December 14, 2020. If the President of the US Senate and the Archivist do not receive electoral votes by the fourth Wednesday in December, or December 23, 2020, then the President of the Senate may request the votes by “the most expeditious method available.” Without a resolution by January 6, then the House selects the next president and the Senate selects the next vice president. 

States do have the power to delay election day, but federal elections are beholden to federal election law. Without the consent of Congress, States could only postpone election day to the extent they could still meet the December 14 deadline. From this, only Congress and the States may delay election day.  The President may not unilaterally postpone election day without the consent of Congress.

Finally, the Constitutionally mandated end-of-term, January 20, cannot be changed without a constitutional amendment.

Trump’s suggestion of postponing elections was met with bipartisan reproach Thursday. Senate Majority Leader Mitch McConnell weighed in on a delayed election, speaking to Kentucky TV station WNKY. He said:

Never in the history of this country, through wars, depressions and the Civil War, have we ever not had a federally scheduled election on time. We will find a way to do that again this November 3rd. We will cope with whatever the situation is and have the election on November 3rd as already scheduled.

Trump’s allegations widespread voter fraud are unfounded. Oregon, which has held postal elections since 2000, has had only 14 reported cases of postal fraud.

To read more CLICK HERE

Assistant AG Rosen in support of the federal death penatly

Jeffrey A. Rosen, deputy attorney general of the United States, wrote this op-ed for the New York Times in support of the death penalty.
This month, for the first time in 17 years, the United States resumed carrying out death sentences for federal crimes.
On July 14, Daniel Lewis Lee was executed for the 1996 murder of a family, including an 8-year-old girl, by suffocating and drowning them in the Illinois Bayou after robbing them to fund a white-supremacist organization. On July 16, Wesley Purkey was executed for the 1998 murder of a teenage girl, whom he kidnapped, raped, killed, dismembered and discarded in a septic pond. The next day, Dustin Honken was executed for five murders committed in 1993, including the execution-style shooting of two young girls, their mother, and two prospective witnesses against him in a federal prosecution for methamphetamine trafficking.
The death penalty is a difficult issue for many Americans on moral, religious and policy grounds. But as a legal issue, it is straightforward. The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790. The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof.
The recent executions reflect that consensus, as the Justice Department has an obligation to carry out the law. The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by Deputy Attorney General Eric Holder.
Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.
In a New York Times Op-Ed essay published on July 17, two of Mr. Lee’s lawyers criticized the execution of their client, which they contend was carried out in a “shameful rush.” That objection overlooks that Mr. Lee was sentenced more than 20 years ago, and his appeals and other permissible challenges failed, up to and including the day of his execution.
Mr. Lee’s lawyers seem to endorse a system of endless delays that prevent a death sentence from ever becoming real. But his execution date was announced almost a year ago, and was initially set for last December. It was delayed when his lawyers obtained six more months of review by unsuccessfully challenging the procedures used to carry out his lethal injection.
After an appellate court rejected their claim as “without merit,” the Justice Department rescheduled Mr. Lee’s execution, providing an additional four weeks of notice. Yet on the day of the rescheduled execution, after family members of his victims had traveled to Terre Haute, Ind., to witness the execution, a District Court granted Mr. Lee’s request for further review. That court entered a last-minute reprieve that the Supreme Court has said should be an “extreme exception.”
Given the long delay that had already occurred, the Justice Department asked the Supreme Court to lift the order so the execution could proceed. Mr. Lee’s lawyers opposed that request, insisting that overturning the order would result in their client’s imminent execution. After reviewing the matter, the court granted the government’s request, rebuked the District Court for creating an unjustified last-minute barrier, and directed that the execution could proceed.
In the final minutes before the execution was to occur, Mr. Lee’s lawyers claimed the execution could not proceed because Mr. Lee still had time to seek further review of an appellate court decision six weeks earlier lifting a prior stay of execution. The Justice Department decided to pause the execution for several hours while the appellate court considered and promptly rejected Mr. Lee’s request. That cautious step, taken to ensure undoubted compliance with court orders, is irreconcilable with the suggestion that the department “rushed” the execution or disregarded any law. Mr. Lee’s final hours awaiting his fate were a result of his own lawyers’ choice to assert a non-meritorious objection at the last moment.
Mr. Lee’s lawyers also disregarded the cost to victims’ families of continued delay. Although they note that some members of Mr. Lee’s victims’ families opposed his execution, others did not. Nor did the family members of Wesley Purkey’s victim, Jennifer Long, who were in Terre Haute on Wednesday afternoon. When the District Court again imposed another last-minute stoppage, granting more time for Mr. Purkey’s lawyers to argue (among other things) that he did not understand the reason for his execution, the Justice Department again sought Supreme Court review.
As the hours wore on, Justice Department officials asked Ms. Long’s father if he would prefer to wait for another day. The answer was unequivocal: He would stay as long as it took. As Ms. Long’s stepmother later said, “We just shouldn’t have had to wait this long.” The Supreme Court ultimately authorized the execution just before 3 a.m. In his final statement, Mr. Purkey apologized to “Jennifer’s family” for the pain he had caused, contradicting the claim of his lawyers that he did not understand the reason for his execution.
The third execution, of Dustin Honken, occurred on schedule, but still too late for some of his victims’ families. John Duncan — the father of the victim Lori Duncan and grandfather of her slain daughters, Kandace (age 10) and Amber (age 6) — had urged Mr. Honken’s execution for years. As John Duncan was dying of cancer in 2018, he asked family members to promise they would witness the execution on his behalf. On July 17, they did. “Finally,” they said in a statement, “justice is being done.”
Mr. Lee’s lawyers and other death penalty opponents are entitled to disagree with that sentiment. But if the United States is going to allow capital punishment, a white-supremacist triple murderer would seem the textbook example of a justified case. And if death sentences are going to be imposed, they cannot just be hypothetical; they eventually have to be carried out, or the punishment will lose its deterrent and retributive effects.
Rather than forthrightly opposing the death penalty and attempting to change the law through democratic means, however, Mr. Lee’s lawyers and others have chosen the legal and public-relations equivalent of guerrilla war. They sought to obstruct by any means the administration of sentences that Congress permitted, juries supported and the Supreme Court approved. And when those tactics failed, they accused the Justice Department of “a grave threat to the rule of law,” even though it operated entirely within the law enacted by Congress and approved by the Supreme Court. The American people can decide for themselves which aspects of that process should be considered “shameful.”
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Thursday, July 30, 2020

Opportunity for more Congressional oversight for DHS

Even before DHS deployed its military-styled law enforcement personnel into the streets of Portland, Oregon, more robust congressional oversight of the department was long overdue, reported Just Security. 

In the 18 years since its creation, DHS has ballooned: It operates with a $50 billion budget and has a workforce of more than 240,000 employees. It is also the country’s largest law enforcement agency, with over 60,000 law enforcement officers. And its activities have grown in parallel, so that they are now substantially out of sync with its statutory mandate. For instance, Homeland Security Investigations, a component of Immigration and Customs Enforcement (ICE), claims the authority to investigate literally any federal crime.

Oversight and accountability of this massive department have lagged far behind. The agency’s sheer size and its sprawling, diverse missions have hobbled effective internal oversight. The secretary’s office is too small (and, in the current administration, too politically pliable) to conduct adequate supervision. Internal controls, guidelines, and coordinating mechanisms are often lacking or woefully insufficient.

Oversight by congressional committees has also been difficult for two reasons. First, jurisdiction over the department is spread across more than 100 committees and subcommittees, creating competition, confusion, and gaps in coverage. That’s why consolidating congressional oversight of DHS remains the most important recommendation of the 9/11 Commission that has never been implemented. Second, the political dialogue concerning immigration and border security specifically has become so polarized that bipartisan cooperation on DHS oversight has been severely strained.

The DHS’ trend toward lawlessness is on full display in Portland. Videos captured by bystanders show unidentified federal agents, dressed in camouflage, conducting arrests and detentions that look more like kidnapping than law enforcement. Agents are routinely using tear gas and have fired rubber bullets at members of the press. And they appear to have gone far beyond their remit to protect federal facilities, encroaching on state police powers and the Tenth Amendment to the U.S. Constitution. Even the U.S. Attorney for the District of Oregon, an officer in Trump’s own Department of Justice, referred agents’ conduct for further investigation by the DHS Office of Inspector General.

Given this state of affairs, there is no excuse for Congress to rush through another multi-billion-dollar appropriation for the department. Before any funds are made available, Congress should conduct some of the oversight that’s been missing to date.

Congress should start by holding hearings to demand answers about the conduct of DHS agents in Portland (one such hearing is already scheduled for this Friday, but House leadership is still planning to move forward with DHS appropriations in the interim). But it should not stop there. Congress should insist that the president fulfill his constitutional responsibility to nominate a DHS secretary, a position that has been filled by “acting” secretaries since April 2019. It should require the department to develop, modernize and, to the extent consistent with national security, publish operational guidelines ensuring that the department’s law enforcement activities are conducted with appropriate care for constitutional rights and clear channels of accountability. It should commission a thorough outside review of the legal authorities and activities of Homeland Security Investigations. These actions can then inform, not only any conditions or limitations that Congress might want to place on funding, but additional legislative reforms to tackle the department’s many problems.

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Wednesday, July 29, 2020

Pittsburgh leaders approve policing reforms

Pittsburgh City Council gave final approval to a series of reforms to police procedures and policies. But council members say the reforms aren’t the city’s final answer to addressing issues raised after the May 25 death of George Floyd at the hands of Minneapolis police.
The legislation, sponsored by Councilmen Ricky Burgess and R. Daniel Lavelle, is supported by other council members and Mayor Bill Peduto, who is expected to sign the bills, according to Peduto’s spokesman, Tim McNulty.
They are highlighted by formation of a Stop the Violence Fund that will enact a police hiring freeze and redirect $250,000 remaining in a budget for new recruits to programs aimed at reducing crime and violence.
Redirect money, not defund
The city can’t defund the police, as some activists have called for, Burgess said. But it can stop hiring new police officers and redirect that money toward alternative programs that help people.
“This money is simply the first step. It is a good-faith effort to say we believe in programming,” Burgess said.
Council also approved a ban on use of chokeholds by police and a ban on buying surplus military equipment for police use without council’s approval.
Another bill that was passed requires sworn police officers to have a “duty to intervene” when faced with a situation within city limits that doesn’t put them at risk of bodily harm.
The move is an attempt to prevent incident similar to the Minneapolis case, where three police officers watched as Officer Derek Chauvin knelt on George Floyd’s neck until he died.
“Black lives actually matter, and we as a council now have a chance to prove it, in Pittsburgh,” Burgess said. “That is to protect the health and safety of Black people.”
The moves come as the police bureau was in the process of strengthening its policies, public safety spokeswoman Cara Cruz said.
“We have met with Council members and respect their recommendations,” Cruz said.
The reduction in funds for police recruits will hamper the department’s ability to build a diverse department, she said.
“We will work with city officials and council to ensure funding is available in the future to recruit new officers who represent the community they will serve and who are willing to make a difference,” Cruz said. “We will look forward to working together in the future.”
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Tuesday, July 28, 2020

AG Barr to testify before House Judiciary Committee today at 10 a.m.

Attorney General Bill Barr is scheduled to testify before the House Judiciary Committee today at 10 a.m. Here is what to expect:
The Justice Department’s independent inspector general has announced an investigation into the federal response to demonstrations, including the disputed and violent clearing of protesters from Lafayette Square near the White House last month before a photo opportunity for Mr. Trump in front of a church. The attorney general accompanied the president, and the White House initially said Mr. Barr had ordered the clearance, though he later said he had not given a “tactical” order, reported the New York Times.
Mr. Barr has since become the face of a Trump administration vow to send a surge of federal agents into cities to battle violent crime for an effort he is calling Operation Legend, which he has said would include 200 agents in Chicago and Kansas City, Mo., as well as three dozen in Albuquerque. Against the backdrop of the confrontations in Portland, Ore., the announcement received major attention.
Representative Pramila Jayapal, Democrat of Washington, said she was prepared to challenge Mr. Barr on what she said was a double standard in supporting Americans protesting coronavirus-related stay-at-home orders while opposing those protesting police violence and racism.
 “The ways Barr has undermined that and moved toward simply satisfying the president’s needs is quite stunning,” she said.
Democrats will also press Mr. Barr on accusations raised in a hearing last month that he has politicized high-profile criminal and antitrust cases, including the decisions to scrutinize California’s emissions deal with automakers after Mr. Trump attacked it and to harass marijuana sellers in states that have legalized the substance.
They may also ask about Mr. Trump’s firing last month of Geoffrey S. Berman as the top federal prosecutor in Manhattan. Mr. Berman has privately told congressional investigators that Mr. Barr unsuccessfully pressured him to resign.
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Monday, July 27, 2020

No correlation between the COVID-19 related jail releases and increase in crime

A study of 29 U.S. cities has found no correlation between the early release of detainees from the cities’ jails due to COVID-19 fears and any increase in crime in those cities between March and May, reported The Crime Report.
“The analysis confirmed that the amount by which a county changed their jail population wasn’t correlated with the amount of change in crime,” said the report by the American Civil Liberties Union, “Decarceration and Crime During Covid-19,” released Monday.
“We found no evidence of any spikes in crime in any of the 29 locations, even when comparing monthly trends over the past two years.”
The ACLU’s Analytics team looked for data on jail population and crime in locations with “the largest jail and overall populations,” using reported data from those 29 localities, which included Atlanta, Chicago, Philadelphia, Washington, D.C., and Los Angeles.
The researchers looked at “Part I” crimes only.
COVID-19 infection rates among prisoners have been 5.5 times higher than the U.S. population case rate, according to a recent study by the Journal of the American Medical Association.
The ACLU found that “nearly every county jail that we examined reduced their population, if only slightly, between the end of February and the end of April.”
Over the same period of time, researchers say that “the reduction in jail population was functionally unrelated to crime trends.”
“In fact, in nearly every city explored, fewer crimes occurred between March and May in 2020 compared to the same time period in 2019, regardless of the magnitude of the difference in jail population,” the report said.
The team said its findings were in line with recent reports that documented certain types of crime have gone down during the COVID-19 pandemic in the spring, which many have attributed to stay-at-home orders and decreased overall activity.
While political rhetoric may be putting the blame on early release from jails or prisons for a reported crime increase, no statistics have been released to support such claims.
COVID-19’s threat to the incarcerated has caused alarm in many quarters.
In its report, the ACLU said, “Since the pandemic began, more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died.”
In early April, Attorney General William P. Barr ordered the Bureau of Prisons to expand the group of federal inmates eligible for early release and to prioritize those at three facilities in Louisiana, Connecticut, and Ohio where known coronavirus cases had grown precipitous.
Barr wrote in a memo to Michael Carvajal, the director of the Bureau of Prisons, that he was intensifying the push to release prisoners to home confinement because “emergency conditions” created by the coronavirus affected the ability of the bureau to function, according to The New York Times.
For its report, the ACLU looked at crime data individually for each city or county. Because each location’s crime dataset was drawn from separate sources and contained varying categorizations of crime, crime patterns could not be compared between cities.
The stats can be seen here.

Judge refuses to stop federal arrests at Portland protests

A federal judge denied Oregon’s legal bid to stop federal law enforcement officer arrest tactics in Portland, reported Jurist. The State of Oregon filed suit following an investigation into federal law enforcement officers who had entered Portland following recent protests and riots over the George Floyd killing.
The State of Oregon alleged that unmarked federal officers had made arrests of protestors without probable cause. The state alleged First, Fourth, and Fifth Amendment violations and sought a temporary restraining order to require that officers identify themselves, state the reason for an arrest, and cease arrests without probable cause.
Judge Michael Mosmon denied the restraining order for lack of legal standing and insufficient evidence. Judge Mosmon wrote:
The State has alleged that the purportedly illegal seizures by Defendants have caused an injury to its citizens’ rights to speech and assembly. In other words, the State must show that the illegal seizures—analogous to the chokeholds in Lyons—will occur again in the future. The State could try to show, for example, that all of Defendants’ seizures are illegal, or that they are under orders to fail to identify themselves or to make random arrests without probable cause. The state has shown none of this. It has presented no evidence of any official orders or policies and has presented no evidence that these allegedly illegal seizures are a widespread practice. Despite the broad language in the complaint, Oregon has shown—at most— that this type of seizure has happened twice.
Mosmon also stressed that evidence of direct orders for officers to violate due process could be used in future proceedings.
The state has not indicated whether it will appeal the decision.
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Sunday, July 26, 2020

Mangino on WFMJ-TV21 Weekend Today

Watch my interview on the indictment of Ohio House Speaker Larry Householder with WFMJ-TV21 Weekend Today.  
To watch the interview CLICK HERE

The Legal: Pa. Superior Court Strikes Blow to DUI Sentencing Scheme

Matthew T. Mangino
The Legal Intelligencer
July 24, 2020
The Pennsylvania Superior Court recently changed the sentencing landscape for those facing prosecution for a second, or subsequent charge, of Driving Under the Influence. In Commonwealth v. Chichkin, 2020 Pa. Super. 121, No. 3473 EDA 2018 and Commonwealth v. Roche, 2020 Pa.Super. 121, No. 3475 EDA 2018, the Superior Court ruled the prior acceptance of accelerated rehabilitative disposition (ARD) does not qualify as a prior conviction for purposes of driving under the influence (DUI) sentencing.
Igor Chichkin was arrested and charged with DUI in Philadelphia for an incident that occurred during fall 2017. His case proceeded to trial in the Philadelphia Municipal Court in spring 2018, at which time he was found guilty of two counts of DUI-general impairment under 75 Pa.C.S. Section 3802 (a) (1), “An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.”
A violation of Section 3802 (a) (1) is punishable by six months of probation and $300 fine. However, in 2013, Chichkin had been arrested for DUI and was accepted into the ARD program pursuant to 75 Pa.C.S. Section 3807.
As a result, the court applied 75 Pa.C.S. Section 3804 (b) (2) (i) and imposed a mandatory minimum sentence of 30 days in jail because the current DUI was considered a second offense within 10 years.
The facts in Lisa Roche’s case were similar. She pleaded guilty in Philadelphia in 2018 and was sentenced to 30 days to four months because she had been admitted into the ARD program within the previous 10 years.
In both cases, the appellants argued that the application of a mandatory minimum sentence violated well-established decisions by Pennsylvania appellate courts and the U.S. Supreme Court.
In 1982, the Pennsylvania Superior Court ruled in Commonwealth v. Knepp, 453 A.2d 1016 (1982) admission into the ARD program is not considered a conviction for any purpose, other than the classification of the defendant as a recidivist.
For 38 years it has been clear that ARD is not a conviction. Defendants who enter the ARD program do not plead guilty. They apply to participate in the ARD program, admission is at the discretion of the district attorney. Once an applicant successfully completes the program he can apply for the expungement of their record.
Chichkin and Roche appealed their convictions to the Superior Court arguing the enhancement of their sentence based on a conviction for DUI within 10 years of a prior ARD is unconstitutional.
Relying on Alleyne v. United States, 570 U.S. 99 (2013) the appellants argued that in order to apply a mandatory minimum—without a trial or guilty plea on the prior offense—the commonwealth must prove the prior DUI beyond a reasonable doubt.
Allen Ryan Alleyne robbed a convenience store manager in Virginia. He was convicted of robbery and firearm possession by the U.S. District Court for the Eastern District of Virginia.
At the time, carrying a firearm during a violent crime carried a mandatory minimum penalty of five years. If the defendant was found to have “brandished” the firearm during the crime the mandatory minimum would increase to seven years. The judge, not the jury, determined at sentencing that Alleyne had “probably” brandished the firearm during the robbery, and imposed the seven-year mandatory minimum.
Alleyne’s case made its way to the U.S. Supreme Court. Justice Clarence Thomas wrote the opinion for a 5-4 majority. The court held that the Sixth Amendment guarantees the accused a right to a trial by a fair and impartial jury, which can only be accomplished if all of the facts that are elements of the crime are presented to the jury. If an element of the crime increases the mandatory minimum punishment, it must be submitted to the jury and found to be true beyond a reasonable doubt.
Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000) wherein the high court ruled criminal sentences cannot be enhanced above the limits provided by statute unless the jury finds beyond a reasonable doubt the existence of the specific aggravating factors giving rise to the enhancement.
Prior to Apprendi and Alleyne it was common in Pennsylvania drug prosecutions to enhance penalties without proving beyond a reasonable doubt the elements necessary to increase the sentence. For instance, the one-year enhancement for selling drugs within 1,000 feet of a school was determined by a judge not a jury. Having possession of a gun during a drug transaction or enhancing a sentence based on the volume of drugs were typically not proven beyond a reasonable doubt.
In 2014, the Superior Court ruled in Commonwealth v. Newman, 99 A.3d 86 (2014) applying sentence enhancements or imposing mandatory minimums without a jury finding was unconstitutional. In 2017, the Pennsylvania Supreme Court in Commonwealth v. Hopkins, 164 A.3d 1133 (2017), found the “1,000 feet of a school enhancement” unconstitutional. In order to enhance or impose a mandatory sentence, the trier of fact must make a finding beyond a reasonable doubt that the defendant committed the conduct that increased the penalty.
As a result, a number of mandatory minimum sentencing statutes have been struck down, because they allowed judges to make findings by a preponderance of the evidence instead of requiring the elements be found by a jury beyond a reasonable doubt.
The Chichkin and Roche opinion authored by Judge Daniel D. McCaffery analogized the Apprendi and Alleyne decisions—which struck down mandatory minimum sentences—to 75 Pa.C.S. Section 3806 that allowed for a defendant to receive an increased DUI sentence for a second or subsequent DUI despite no finding of guilt on the first DUI.
There was an exception carved out for prior convictions in the holdings in Apprendi and Alleyne. A prior conviction stood for itself and did not have to be proven beyond a reasonable doubt when used to enhance a subsequent sentence. However, ARD is not a prior conviction.
McCaffrey wrote, “We conclude the appellant’s acceptances of ARD cannot be categorized as ‘prior convictions’ exempt from the holding of Apprendi and Alleyne.”
Following this reasoning it is unconstitutional to apply heightened DUI penalties to individuals whose prior cases have not been subject to an admission or a verdict of guilt following trial. The Superior Court further reasoned that the purpose of the ARD program is not to convict the defendant but rather offer rehabilitation, treatment and a clean start. Therefore, the mere acceptance of ARD is not the same as a conviction.
In Chichkin and Roche, “The commonwealth seeks to label appellants as ‘recidivist drunk drivers’ based solely on their prior acceptances of ARD.”
McCaffery concluded, “75 Pa.C.S. Section 3806 (a), which defines a prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI sentencing enhancement purposes, offends the due process clause and is therefore unconstitutional.”
As a result, what was once a second offense is now a “second-first offense” for purposes of DUI sentencing. That alone will have a significant impact on those who come before the court after re-offending. In addition, for those who have already come before the court and have been sentenced as recidivist this decision may open the door to post-conviction relief. Expect a spike in petitions from those sentenced on second, third or subsequent DUI offenses who remain in jail, on parole or serving a term of probation.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George in New Castle. His weekly column on crime and punishment is syndicated by GateHouse Media. He is the author of The Executioner’s Toll, 2010. You can reach him at and follow him on Twitter @MatthewTMangino.
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