Hickton: Governments turning to artificial intelligence to make decisions

David Hickton, the founding director of The University of Pittsburgh Institute for Cyber Law, Policy, and Security wrote in The Hill:

Tomorrow’s government workers aren’t your neighbors. They’re algorithms. 

Federal and local governments increasingly are turning to data-trained models and artificial intelligence to help make decisions — big decisions, such as the length of a prison sentence, and smaller decisions, such as when to deploy health inspectors to restaurants. But these algorithms need oversight and it is nowhere to be found.

Congress should act on this critical issue, but so, too, should local governments, where some of the most consequential uses of government by algorithm can be found.

In Pittsburgh, for example, the city and county governments are using algorithms to perform a variety of functions. Like many localities across the country, algorithms are helping judges determine who gets bail and who does not. They are guiding police about where and when to send patrols. They are helping child welfare hotline screeners determine when to send in a case worker. And they’re only becoming more common.

Each of these applications has a worthy goal: public safety, preventing crime, and saving children from neglect, abuse or worse. It is possible that some of these algorithms are “better” at doing so than the humans who might be making decisions in their place. Algorithms can be programmed to take more evidence into account; they can do more, faster. The promise of big data and predictive analytics for improving our lives and society should not be ignored.

However, it is also possible that these algorithms could perpetuate — or even accelerate — existing discrimination patterns. Ask Amazon, whose now-discarded interview system trained itself to avoid selecting resumes that indicated the applicants were women. If the data that helped train policing patrol models is using years of notoriously biased data — such as information about historical arrests — how have we ensured that the algorithm doesn’t churn out biased outcomes? 

Yet too many of these algorithms operate like black boxes, with little to no means for the public and researchers to scrutinize how decisions are made. As algorithms increasingly are used for determining government services and benefits, or even whether or not someone goes to prison, what remedies do individuals have if the algorithm is biased?

We cannot rely just on good intentions, or even impressive processes and evaluations within agencies. Instead, we should want public oversight to ensure accountability and fairness. No jurisdiction in the United States has successfully grappled with the complexities of how to adapt to this new administrative state by algorithm, though some are trying, including New York City and Washington State. 

To be sure, this is no easy task. This is why the University of Pittsburgh Institute for Cyber Law, Policy and Security — Pitt Cyber — has formed the Pittsburgh Task Force on Public Algorithms to study oversight of local public algorithms. With support from The Heinz Endowments, we have gathered experts and community leaders to develop best practices and issue practical guidance for local policymakers wishing to take full advantage of the promise of data, while still ensuring accountability and equity for all residents. This task force will not work in isolation; we also will be working throughout the western Pennsylvania region to ensure that we learn from residents across communities. 

In a country where techno-optimism long has ruled, it is time we also ensure accountability and fairness. 

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Virginia bill to abolish death penalty for mentally ill moves forward

A bill that would end the executions of people who are judged severely mentally ill passed a Virginia Senate committee. It’s not the first time state lawmakers have tried to stop the punishment, reported Virginia Public Media.

Virginia executed a man named William Morva in 2017, despite numerous concerns about his mental health. 

The bill, introduced by Sen. Barbara Favola (D-Fairfax) would stop any future executions, in cases where experts determine a defendant was severely mentally ill at the time of the offense.

The bill defines severe mental illness as “the exhibition of active psychotic symptoms,” which Favola calls a “rigorous” standard. 

“We exempt the use of alcohol, drugs, or dementia. None of that,” she said. “This has got to be serious, serious mental illness at the time the crime was committed.”

There are two inmates on death row in Virginia, according to the Department of Corrections. 

The Republican-controlled state Senate passed the measure in 2019, but it failed to get enough votes in the House. With Democrats in control of the General Assembly this year, it will likely reach the Governor’s desk for a signature.

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PA Congressman seeks to ban 'hair-discrimination'

When a black New Jersey teen was forced to cut his dreadlocks in order to participate in a high school wrestling match in late 2018, U.S. Rep. Dwight Evans, D-3rd District, was taken aback.

The wrestler, Andrew Johnson, received a hurried haircut after he was told by a referee that his hair violated wrestling rules. He won the match and state officials opened a civil rights investigation, The New York Times reported. 

Now members of Congress are trying to make sure that never happens again, reported the Pennsylvania Capital-Star. 

The Pennsylvania Democrat and other federal lawmakers are pushing for a bill that would ban discrimination based on hair textures and styles, which backers say would improve equity in education, employment, housing and other public programs.

Their bill, known as the CROWN Act, would clarify that discrimination based on race or national origin encompasses hair texture and style. The legislative language specifically names styles commonly associated with black people, such as dreadlocks, cornrows, twists and Bantu knots.

Introduced in December, the bill has the support of more than three dozen House Democrats, including Evans. No other Pennsylvania lawmaker has signed on to the bill — or a companion measure in the Senate — at this point.

“The whole thing is to stamp out discrimination,” Evans told the Capital-Star. “That’s the message to it all.”

The issue is of particular concern to black women, whose hair is more likely than white women’s hair to be perceived as “unprofessional,” according to a 2019 study of 2,000 black and white women. It was supported by Dove, a beauty company that came under fire in 2017 for an ad that featured a black woman who took off her shirt and transformed into a white woman.

The study finds that black women are also more likely than white women to be sent home from their workplace because of their hair and more likely to report harsh judgments based on looks. Four out of five said they have to change their hair from its natural state to fit in at the office.

But women aren’t the only victims of hair-based discrimination. 

“This is about men as well,” said U.S. Rep. Rep. Brenda Lawrence, D-Mich., citing Johnson, the high school wrestler from New Jersey. Another example: Last October, Penn State football player Jonathan Sutherland received a letter calling his dreadlocks “awful” and “disgusting.”

Another high-profile incident involves Chastity Jones, a black woman who applied for a job in 2010 as a customer service representative with Catastrophe Management Solutions (CMS), an insurance claims company in Alabama. She got the job, but the company rescinded the offer because she wouldn’t comply with a request to cut her dreadlocks. 

The Equal Employment Opportunity Commission filed a lawsuit against CMS, but a district court ruled for the company, arguing that its grooming policy did not constitute intentional discrimination because hair styles, unlike skin color, are not an “immutable” characteristic. 

The Atlanta-based 11th U.S. Circuit Court of Appeals upheld the decision in 2016.

A ‘legal fiction’

Wendy Greene, a law professor at Drexel University, disputed the court’s reasoning, calling the doctrine of immutability a “legal fiction” that is “rooted in a discredited view of race as biological and unchangeable.” People classify individuals racially through various characteristics, including hairstyles and texture, she said in an interview, noting that such characteristics were used as a basis to enslave people. 

Black women in particular have a “narrow way” in which they can show up at work, she said. Conforming to biases favoring straight hair can be exhausting, timely and expensive, not to mention a threat to physical and mental health. “Our federal civil rights laws absolutely can and should protect against systematic discrimination,” she said.

Jones sought to appeal the case to the U.S. Supreme Court, but the court did not grant a motion that would have allowed the case to continue.

But that doesn’t mean change isn’t taking place. 

In the last decade, the U.S. military changed its policies regarding women’s hairstyles in response to objections of racial bias from members of the Congressional Black Caucus. Policies have improved, but some restrictions remain, according to Samara Sheff, a spokeswoman for Wisconsin Democratic Rep. Gwen Moore, a member of the caucus.

Last year, California, New York and New Jersey, as well as New York City, Cincinatti and Montgomery County, Md. — enacted bans on hair-based discrimination. 

Lawmakers in about a dozen other states — including Pennsylvania — have introduced similar state-level legislation.

Even so, action at the state and local levels is not enough, said Lawrence of Michigan. A federal law is needed to clarify, strengthen and unify anti-discrimination laws across the country. 

The CROWN Act will “send a message” that discrimination is not acceptable, Evans said.

Lawrence says the bill has the support it needs in the Democratic-controlled House, and said the Congressional Black Caucus — of which she and Evans are members — is pushing for a committee hearing on the issue this year. 

But prospects on the other side of the Capitol are dim.

U.S. Sen. Cory Booker, D-N.J., introduced a companion measure in the Senate in December.

But the GOP-controlled chamber is consumed with impeachment for the moment, and the presidential election year will make bipartisan agreement more difficult to achieve. Meanwhile, Senate Majority Leader Mitch McConnell, R-Ky., has been sitting on hundreds of bills passed by the Democratic-led House.

Evans declined to speculate about prospects in the upper chamber. “That’s an independent body from the House,” he said.

Even if the federal legislation doesn’t pass soon, the broader campaign to end hair-based discrimination could usher in larger social change, according to Steven Gatley, a California attorney who specializes in employment law. 

Federal, state and local initiatives are raising awareness about the problem and could encourage employers across the country to review grooming policies on their own, he said. In doing so, they may find that their hair-related policies are out of date, he said. 

Kansas high court rules a dwelling must be inhabited for a burglary

The Kansas Supreme Court ruled Friday that a dwelling must be inhabited to provide a burglary conviction for a break-in. In the case, a woman broke into a farmhouse used for storage, reported Jurist. No person had lived in the farmhouse for years prior to the break-in. The court ruled that such an uninhabited structure could not support a burglary conviction. This ruling requires that a person must have lived or subjectively intended to live in the dwelling for human habitation at the time of the break-in to consider the break-in a burglary. In his opinion, Justice Biles explained this requirement:

We agree with the [defendant’s] panel. Absent proof the place burgled was used as a human habitation, home, or residence, the statute’s plain language requires a showing of proof that, someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. And based on that, the sufficiency question in [the defendant]’s case turns on whether the evidence at trial, viewed in the light most favorable to the State, was sufficient for “a rational fact-finder” to find that the farmhouse was”intended for use” as a human habitation, home, or residence when the crime occurred.

This ruling will limit future burglary convictions in Kansas, as some break-ins will no longer be classified as break-ins.

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GateHouse Media: 'No crime, no impeachment’ defense a red herring

Matthew T. Mangino

GateHouse Media

January 24, 2020

The impeachment trial of President Donald Trump is in full swing. The United States Constitution provides in Article II, Section 4 that “The President ... shall be removed from Office on Impeachment for, and Conviction of ... high Crimes and Misdemeanors.”

Lawyers for the president have argued that he cannot be removed from office because he has not violated the law. One of Trump’s lawyers, Alan Dershowitz, has said that impeachment requires “criminal-like conduct.” Dershowitz told The Associated Press, “I will be making that argument as a lawyer on behalf of the president’s defense team against impeachment. That’s my role. It’s very clear. I have done it before.”

In a brief filed before the trial began, Trump’s lawyers argued that the article of impeachment claiming that the president abused his power is unconstitutional because he was not accused of a crime.

“House Democrats’ novel conception of ‘abuse of power’ as a supposedly impeachable offense is constitutionally defective,” the brief noted. “It supplants the framers’ standard of ‘high crimes and misdemeanors’ with a made-up theory that the president can be impeached and removed from office under an amorphous and undefined standard of ‘abuse of power.’”

The White House’s “no crime, no impeachment” defense has been pooh-poohed by the House impeachment managers. In their view, the standard of “high crimes and misdemeanors” is vague and open-ended for a reason and is meant to encompass abuses of power that are not necessarily illegal.

Rep. Adam Schiff, the rising star of the House prosecution team, called Trump’s defense an “absurdist position.” He added, “That’s the argument I suppose you have to make if the facts are so dead set against you.”

Don’t take Schiff’s word for it.

Here is what Princeton University Professor Keith E. Whittington wrote last fall, ”(T)he president can commit an impeachable high crime without violating the federal criminal law.” Whittington added, “To conclude otherwise would be to ignore the original meaning, purpose and history of the impeachment power; to subvert the constitutional design of a system of checks and balances; and to leave the nation unnecessarily vulnerable to abusive government officials.”

How about Alexander Hamilton’s word? In “Federalist Paper No. 65,” Hamilton noted that even an elected government would need an impeachment power to address “the abuse or violation of some public trust.”

As recently as 1982, the U.S. Supreme Court ruled a president’s “misconduct” - not necessarily criminal conduct - may lead to the “constitutional remedy of impeachment.”

How about the word of George Washington University law professor Jonathan Turley who recently argued in the House against impeachment? He wrote in The Washington Post this week that the “no crime, no impeachment” defense was politically unwise and constitutionally shortsighted.

Okay, you’re still not convinced. How about the president’s number one fan, ardent defender and United States Attorney General? Before William Barr was appointed Attorney General, he was asked to provide advice to the White House during the Mueller investigation.

Barr included the following passage in a memo he wrote in 2018, “Even without the possibility of criminal penalties ... a check is in place on presidents who abuse their discretionary power to control the executive branch of government - impeachment.”

As reported by The New York Times, the president’s friend and adviser, Attorney General Barr concluded, “Under the framers’ plan, the determination whether the president is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the people, through the election process, and the Congress, through the impeachment process.”

Apparently, President Trump’s defense team never got the memo.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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London ramps up use of facial recognition in police investigations

London’s police department said  that it would begin using facial recognition to spot criminal suspects with video cameras as they walk the streets, adopting a level of surveillance that is rare outside China, reported the New York Times.

The decision is a major development in the use of a technology that has set off a worldwide debate about the balance between security and privacy. Police departments contend that the software gives them a way to catch criminals who may otherwise avoid detection. Critics say the technology is an invasion of privacy, has spotty accuracy and is being introduced without adequate public discussion.

Britain has been at the forefront of the debate. In a country with a history of terrorist attacks, police surveillance has traditionally been more accepted than in other Western countries. Closed circuit television cameras line the streets.

The technology London will deploy goes beyond many of the facial recognition systems used elsewhere, which match a photo against a database to identify a person. The new tools use software that can immediately identify people on a police watch list as soon as they are filmed on a video camera.

The Metropolitan Police said in a statement that the technology would help quickly identify and apprehend suspects and help “tackle serious crime, including serious violence, gun and knife crime, child sexual exploitation and help protect the vulnerable.”

London has faced several terror attacks, and seen an increase in crime, in recent years. In November, the police shot and killed a man wearing a fake bomb on London Bridge, after two people were fatally stabbed. The police called the attack a terror incident. In 2017, another stabbing attack left eight dead and dozens wounded. Knife crime in England and Wales rose to a record high in the first nine months of last year, according to government statistics.

“Every day, our police officers are briefed about suspects they should look out for,” Nick Ephgrave, assistant commissioner of the police department, said in the statement. Live facial recognition, he said, “improves the effectiveness of this tactic.”

“As a modern police force, I believe that we have a duty to use new technologies to keep people safe in London,” he added.

Facial recognition, already widespread in China, is gaining traction in Western countries. Many cities and police departments, like the New York Police Department, use technology comparing photos and other static images against a database of mug shots. An investigation by The New York Times this month found that more than 600 law enforcement agencies are using a facial recognition system by the company Clearview AI.

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Florida high court reverses itself on death penalty

The Florida Supreme Court reversed a 2016 decision and ruled that unanimous jury recommendations are not necessary before death sentences can be imposed, reported CBSMiami4.

The 4-1 ruling offered a clear picture of how much the Supreme Court has changed since last January, when a conservative majority took control after the retirements of longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince.

Thursday’s majority opinion said the court “got it wrong” in 2016 when it required changes such as unanimous jury recommendations on death sentences. The 2016 ruling came as judges, lawyers and state leaders tried to move forward after the U.S. Supreme Court had found Florida’s death-penalty system unconstitutional.

“Last, lest there be any doubt, we hold that our state Constitution’s prohibition on cruel and unusual punishment … does not require a unanimous jury recommendation — or any jury recommendation — before a death sentence can be imposed,” said Thursday’s majority opinion shared by Chief Justice Charles Canady and justices Ricky Polston, Alan Lawson and Carlos Muniz. “The text of our Constitution requires us to construe the state cruel and unusual punishment provision in conformity with decisions of the (U.S.) Supreme Court interpreting the (U.S. Constitution’s) Eighth Amendment. Binding Supreme Court precedent … holds that the Eighth Amendment does not require a jury’s favorable recommendation before a death penalty can be imposed.”

But Justice Jorge Labarga wrote a highly critical dissent, arguing that the majority “has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida.”

“Today, a majority of this court recedes from the requirement that Florida juries unanimously recommend that a defendant be sentenced to death,” Labarga wrote. “In doing so, the majority returns Florida to its status as an absolute outlier among the jurisdictions in this country that utilize the death penalty. The majority gives the green light to return to a practice that is not only inconsistent with laws of all but one of the 29 states that retain the death penalty, but inconsistent with the law governing the federal death penalty.”

The ruling came in a Polk County case in which Mark Anthony Poole was convicted in the 2001 first-degree murder of Noah Scott, the attempted murder and sexual battery of Loretta White, armed burglary and armed robbery. After years of litigation, a jury in 2011 recommended by a vote of 11-1 that Poole should be sentenced to death — a sentence that a judge imposed.

But based on the Florida Supreme Court’s 2016 decision, Poole’s death sentence was later vacated because of the lack of a unanimous jury recommendation, Thursday’s opinion said. That spurred the state to appeal. The Supreme Court on Thursday ordered that Poole’s death sentence be reinstated.

The opinion came after a long, complicated series of issues that stemmed from a January 2016 ruling by the U.S. Supreme Court in a case dubbed Hurst v. Florida. That ruling found the state’s death-penalty system was unconstitutional because it gave too much authority to judges, instead of juries, in imposing death sentences.

The Florida Supreme Court in October 2016, in the similarly named case of Hurst v. State, interpreted and applied the U.S. Supreme Court ruling. In addition to requiring unanimous jury recommendations, it also dealt with a critical issue of jurors finding what are known as “aggravating factors” that can justify death sentences.

The Florida court said that before judges could impose death sentences, juries would have to unanimously find that aggravating factors were proven beyond a reasonable doubt; unanimously find that aggravating factors are sufficient to impose death; unanimously find that aggravating factors outweigh “mitigating” factors; and unanimously recommend death sentences.

But in Thursday’s opinion, the majority said that interpretation went too far. It said juries are required to unanimously find the existence of one or more aggravating factors, but it backed away from the other legal conclusions reached in October 2016.

“Without legal justification, this court used Hurst v. Florida — a narrow and predictable (U.S. Supreme Court) ruling that should have had limited practical effect on the administration of the death penalty in our state as an occasion to disregard decades of settled (U.S.) Supreme Court and Florida precedent,” the majority opinion said. “Under these circumstances, it would be unreasonable for us not to recede from Hurst v. State’s erroneous holdings.”

In 2017, the Legislature passed a law that required unanimous jury recommendations as it complied with the state Supreme Court ruling — a move that Thursday’s opinion acknowledged.

“Our decision today is not a comment on the merits of those changes or on whether they should be retained,” the opinion said. “We simply have restored discretion that Hurst v. State wrongly took from the political branches.”

But in his dissent, Labarga wrote that there is “every reason to maintain reasonable safeguards for ensuring that the death penalty is fairly administered.”

“I strongly object to the characterization of this court’s decision in Hurst v. State as one where this court ‘wrongly took (discretion) from the political branches.’ As the court of last resort in Florida’s third and co-equal branch of government —whose responsibility it is to interpret the law — that is what this court did in Hurst v. State. The constitutionality of a provision of Florida’s death penalty law is uniquely this court’s to interpret,” Labarga wrote.

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Violent crime fell in the U.S. during the first half of 2019

Both violent and property crime reports to local police declined in the first half of 2019 compared to the same time frame the previous year, says the FBI.

The report includes data from more than 14,000 law enforcement agencies that voluntarily submitted information to the FBI’s Uniform Crime Reporting Program, according to The Crime Report.

All categories of violent crime offenses decreased between the first half of 2018 and the first half of 2019, for an overall decrease in violence of 3.1 percent, the report says.

This includes murder, down 3.9 percent, robbery, down 7.4 percent, rape, down 7.3 percent and aggravated assault, down .3 percent.

Property crime also declined during the same period, including burglary, 11.1 percent lower, motor vehicle theft, 6.7 per cent lower and larceny theft, 4.2 percent lower.

It was the third consecutive year of reported crime declines in the first half of the year. In 2016, all violent crime categories increased compared with the first half of 2015.

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What if the impeachment trial were conducted as a criminal prosecution?

Stuart Gasner, of counsel at Keker, Van Nest & Peters, took a look at impeachment as a criminal proceeding for The National Law Journal:
Now that an impeachment trial in the Senate is imminent, what would it look like if Chief Justice John Roberts conducted it like a federal criminal trial with a properly instructed jury? It won’t be, of course, but you can bet that politicians on both sides of the aisle will be talking about what is and isn’t hearsay, how to determine intent, the significance of circumstantial evidence, what to make of missing witnesses, and generally, what evidence is reliable.

While the Senate trial will definitely not be governed by the Federal Rules of Evidence, it’s worth looking at them if only to see what guidance they provide. They are, after all, the product of many years of common law and statutory revision and exist “to the end of ascertaining the truth and securing a just determination.” Likewise with typical jury instructions used in federal court. So, let’s take a quick spin through the rules and standard instructions and clear up a few things.

First of all, practically all of what was described as “hearsay” in the House hearings is no such thing. Orders, commands and instructions—such as many of the text messages among Ambassador Gordon Sondland and other officials in the Ukraine saga—are often considered to be “verbal acts” that have legal significance regardless of their truth or falsity and are not hearsay at all. Most of the key emails and text messages would also be admissible to prove the recipient’s understanding or the sender’s state of mind. More broadly, many, if not all, of the communications between and among the central players would independently be admissible under the co-conspirator hearsay exception. Sen. Lindsey Graham, R-South Carolina, can come up with all the ridiculous analogies he wants—by the way, when has anyone ever been “convicted” of a parking ticket?—but the fact remains that virtually none of the key statements that emerged in the House impeachment inquiry would likely be excluded from a federal criminal trial as inadmissible hearsay.

Nor would it be significant in a real trial whether there was “direct” evidence of the president’s intent. Every federal circuit that issues pattern jury instructions makes it clear that circumstantial evidence is just as good as direct evidence. Courts often remark that direct evidence of intent is rarely available and intent is “generally proved with circumstantial evidence.” And most prosecutors would have a field day on the issue of intent based solely on the reconstructed memo of the president’s call with the Ukrainian president.

Would the president’s lawyers be allowed to argue in a real trial that his request for Ukraine to open an investigation into former Vice President Joe Biden and his son was motivated by a desire to root out corruption? Maybe in an opening statement. But they’d have to come up with some evidence during the trial in order to get a “theory of the defense” instruction. And such a defense would open the door to the prosecution showing the absence of other anti-corruption efforts by the president and his administration. There would also be a big fight over whether he could call the former vice president or his son as witnesses, with many federal judges likely hesitant to have a mini-trial over Burisma and Barack Obama-era foreign policy, especially where the real issue is the president’s motivation in asking for the investigation and his pre-existing factual basis, rather than the merits of the Biden allegations.

Would Roberts give a missing witness instruction if John Bolton, Mick Mulvaney and others failed to appear at our hypothetical trial under the Federal Rules of Evidence? Possibly. While this instruction is disfavored in many jurisdictions, the facts here would lend themselves to its application. A missing witness instruction is sometimes available where the absent witness “would have been able to provide relevant, noncumulative testimony on an issue in the case” and “the witness was peculiarly in the other party’s power to produce.” This rule has particular application where the missing witness “has such a relationship with one party as to effectively make her unavailable to the opposing party.” With the Senate in Republican hands and a clear record that the president has blocked key witnesses from testifying, many judges would likely exercise their discretion to allow an inference that the missing witness’s testimony would have been unfavorable to the president. In any event, evidence about the president’s blocking those witnesses from testifying—along with disregarding various congressional subpoenas—would surely be admissible in a criminal trial for obstruction of Congress.

Is the Senate trial going to look anything like a federal criminal trial? Of course not. But maybe we can hope that the senators, especially the lawyers among them, will think a bit about their actual experience in court before making claims about “hearsay,” “evidence” and other facets of trials where there are actually rules. After all, 10 senators in the 116th Congress are former prosecutors, 47 list the law as their professional occupation, and 53 hold law degrees.

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Hospitals cited for calling police on mental health patients

Vermont is a surprising case study in how things can quickly go wrong when hospitals invite police inside, reported Vice. At least nine of Vermont’s 14 emergency rooms, including six of its eight hospitals serving rural populations, have been cited by national regulators over the past five years for improperly calling police to help with mental health patients.

Cops are not trained in best practices to talk to or help someone suffering with mental health issues, let alone in an emergency room, and often arrest or hurt people they perceive as threatening—or worse. One study found that people with mental illnesses are 16 times more likely to be shot by police, despite a robust body of research showing that the mentally ill are no more dangerous than the average person.

As Vermont’s Department of Mental Health noted in a report from April of this year, federal requirements mandate only hospital staff are permitted to handle patients in psychiatric care. Outside contractors, like private security officers, need to be trained and “under the supervision” of hospital staff when handling patients. And police officers “cannot lay hands on an individual who is committing (or has committed) a crime in the emergency department unless they are going to arrest and remove the individual,” the report said.

But those standards have been ignored in Vermont hospitals in recent years.

One 2016 hospital report describes how a patient seeking treatment for anxiety, depression and suicidal thoughts was tackled by police with an arm-bar takedown; the officers then handcuffed the patient’s arm to a bed. Five officers were called in 2018 to intimidate a patient who was refusing to accept medication for their bipolar disorder. And in two different hospitals last fall, county sheriffs called by staff Tasered two separate patients seeking treatment for mental health issues, neither of whom were in police custody at the time. Only five hospitals nationally were cited in 2018 for the improper use of Tasers; the two in Vermont were the only ones outside major urban areas.

Doctors and nurses in hospitals are allowed to use physical force to calm down a patient who is seeking treatment for mental health issues and is getting agitated or violent. But these medical techniques for restraint, like soft straps to keep a patient in a bed or wheelchair and injectable sedatives, have strict regulations for use. Most techniques police officers use to restrain suspects—like handcuffs, Tasers, and tackling moves—are not considered medically appropriate for a person suffering from mental health problems.

Restraining a mental health patient “is a medical intervention in a hospital,” said Suzanne Leavitt, the state survey director at Vermont’s Division of Licensing and Protection, which licenses and certifies health care organizations in the state.

“If you have the police come in and handcuff somebody, that is not a medical intervention,” Leavitt said.

Vermont and national regulations say that while hospitals may call police for patients committing crimes in ERs, police must arrest the patient and take them into custody after treatment—not act as a security force.

“The hospital cannot call the police and say, we need your help restraining this guy, hold him down please, so we can give him a shot,” Leavitt said.

When hospitals don’t set clear boundaries with police, hospitals can get in trouble with national regulators. Hospitals with multiple bad reports risk losing funding and certification from national and state governments—-a potentially devastating blow to rural populations where medical access, and especially mental health access is already thin on the ground.

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Poll: Nearly 3-in-10 Pennsylvanians have been incarcerated or on probation

Nearly 3-in-10 Pennsylvania voters have a household or immediate family member who has been incarcerated or placed on probation, according to a poll commissioned by the REFORM Alliance, and conducted by Harper Polling in Harrisburg. 

Probation reform is personal for millions of Pennsylvania voters, as 28% say they have an immediate family or household member who has been placed on probation or incarcerated. 

Probation reform is not a regional issue. Geographically, rates of reported probation and incarceration reach their extremes in the rural Northern Tier (37%) and the metropolitan Southeast (34%).

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GateHouse: Buck v. Bell: The high court’s low point

Matthew T. Mangino

GateHouse Media

January 17, 2020

There is a scene in the American film classic “Judgment at Nuremberg” where defense attorney Hans Rolfe, played by Maximilian Schell, is cross-examining a Nazi judge about the Nazi sterilization of undesirable women. Schell cites a case where the high court of another country authorized the sterilization of a “feeble-minded” woman who was the daughter of a “feeble-minded” mother. The court opinion concluded, “Three generations of imbeciles are enough.”

Schell dramatically concluded his cross-examination by revealing that the author of the opinion was the vaunted American jurist Oliver Wendell Holmes. “Judgement at Nuremberg” was a fictional account of the war crime trials of German judges. However, Justice Holmes’ opinion in Buck v. Bell - which upheld the sterilization of women in the state of Virginia - was indeed cited in Nuremberg.

During the trial of German SS Officer Otto Hofmann, his defense cited Buck v. Bell as proof that a so-called enlightened country like the U.S. was also involved in the “science” of human improvement through controlled breeding. In the U.S. we called it eugenics, in Nazi Germany it was referred to as creating the master race.

Carrie Buck was born and raised in Charlottesville, Virginia. She became pregnant at age 16. Her foster parents had her institutionalized as a “feeble-minded moral delinquent,” despite her claims that she had been assaulted by their nephew.

When she gave birth, her child was adopted by her foster parents. Buck was sent to the Virginia State Colony for Epileptics and Feeble-minded in Lynchburg. Buck’s mother was already a resident there.

Just prior to Buck’s commitment, Virginia enacted a new law authorizing sterilization of, among others, the feeble-minded and the socially inadequate. With three generations available for examination, the colony set out to prove that the Buck women were defective. They sought to have Carrie Buck sterilized under the new law.

The Supreme Court supported Buck’s sterilization by a vote of 8 to 1. Holmes’ 1927 opinion is remembered as containing some of the most infamous language ever delivered by the high court.

According to the USA TODAY, Carrie Buck was the first victim of the 1924 sterilization law. As a result, about 8,300 Virginians were involuntarily sterilized. The law was repealed in 1974, but Buck v. Bell has never been overturned.

State laws permitting sterilization of individuals deemed unfit to reproduce - most commonly institutionalized persons with mental illness, or even conditions such as epilepsy - were common in the first half of the 20th century. According to the USA TODAY, more than 65,000 people were sterilized under such laws, which were enacted in more than 30 states.

In 2010, Paul Lombardo, a law professor at Georgia State University took a close look at the plight of Carrie Buck and other women subject to draconian sterilization regulations. His book, Three Generations, No Imbeciles: Eugenics, The Supreme Court, and Buck V. Bell revealed that the Buck women were not feeble-minded imbeciles.

Through his research, Lombardo found report cards for Carrie and her daughter Vivian. Buck had passed each year with “very good” marks. Vivian had made the honor roll. There was nothing to suggest any mental deficiency in either of them. Unfortunately, Vivian died at age 8.

It is astonishing that the United State was, not so long ago, a leader in eugenics. Leading medical professionals, legal scholars and lawmakers subscribed to a theory that espoused terminating the reproductive rights of the mentally ill, intellectually disabled or other “undesirables.”

Even more appalling, Holmes, a civil war hero himself, would in the wake of the horrors of World War I, introduce his argument in support of sterilization in the following manner, “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices.“
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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NEWSWEEK: EX-WHITE HOUSE ETHICS CHIEF CALLS MCCONNELL A 'PERJURER' AFTER SENATOR TAKES IMPEACHMENT OATH: HE SAID 'THE EXACT OPPOSITE'

Senate Majority Leader Mitch McConnell was branded a "perjurer" by former President George W. Bush's ethics chief, after the Republican senator took an oath swearing impartiality in the impeachment trial of President Donald Trump, reported Newsweek.

McConnell has explicitly indicated he has no intention of being impartial, vowing to work closely with White House counsel and Trump as the trial approached. Richard Painter, Bush's chief ethics lawyer from 2005 to 2007, denounced the senator on Twitter for contradicting himself by taking the oath.

"This man just swore an oath saying the exact opposite. This man is a perjurer," Painter tweeted, accompanied by a December NPR article featuring McConnell vowing to be anything but impartial during the trial.

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Trump adds Alan Dershowitz and Kenneth Starr to defense team

President Trump has added some high-profile lawyers to his legal team, including Harvard emeritus law professor Alan Dershowitz and former independent counsel Kenneth W. Starr, reported the Washington Post.

Word of the new firepower came as House impeachment managers and Trump’s lawyers scrambled to produce legal briefs ahead of the Senate’s return Tuesday after the holiday weekend.

The Senate trial opened Thursday amid new allegations about Trump’s dealings with Ukraine, including an assertion from Lev Parnas, a former associate of Trump’s personal lawyer Rudolph W. Giuliani, that Trump knew of Parnas’s role in the effort to dig up dirt in Ukraine that could benefit the president politically.

The impeachment charges center on the allegation that Trump withheld military aid and a White House meeting to pressure Ukraine to investigate his political rivals, including former vice president Joe Biden and his son Hunter Biden.

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Texas carries out 1st execution of 2020, seven more scheduled through May

The 1st Execution of 2020

Texas, the state that has put to death more people than any other by far, carried out the nation’s first execution of the decade Wednesday.

John Gardner was executed for the 2005 Collin County murder of his soon-to-be ex-wife. Tammy Gardner was shot and killed in her home weeks before the couple’s divorce was finalized, according to court records. She called 911 before she died to say her husband had shot her, according to the Texas Tribune.

With no pending appeals, John Gardner was taken into Texas’ death chamber in Huntsville and injected with a lethal dose of pentobarbital at 6:20 p.m. He was pronounced dead 16 minutes later.

Five of his friends and a spiritual adviser were expected to watch through a glass pane in a small room, according to a prison witness list. Tammy Gardner's mother, daughter and son planned to stand in an identical room next door. In his final words, he told his friends he loved them after apologizing to the victim's family.

"I would like to say sorry for the grief I have caused. I hope you find peace, joy and closure. Whatever it takes to forgive me. I am sorry. I know you cannot forgive, me but I hope one day you will," the 64-year-old man said.

John Gardner had a history of domestic violence, including the shooting of a previous wife who later died from her injuries, court records state.

He had argued for years that his crime should not have been prosecuted as a capital murder, which is the only crime in Texas that can result in the death penalty. A capital murder conviction in his case required the jury to decide that the killing was committed during another felony crime — home burglary or retaliation for his wife being a witness in their upcoming divorce proceeding.

Instead, his appellate attorneys said, John Gardner’s trial lawyers should have raised an “abandonment rage” defense. They argued that he didn’t break into his wife’s house and that he shot her to prevent her from leaving him, not because she was going to testify against him in court. Texas and federal courts rejected the argument.

The Gardners had been married for more than five years, and court records indicate it was an abusive relationship. Tammy Gardner’s friends and relatives testified at trial that her husband had put a gun to her head before and that she showed up to places with bruises on her face. After she filed for divorce, they said that she was terrified for her life and that John Gardner was harassing her, asking if she was going to go through with it.

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The day of the murder, her daughter said John Gardner was repeatedly texting his wife about the divorce and asked, “YES OR NO?”

At trial, while jurors weighed whether to sentence John Gardner to death or life in prison without the option for parole, his sister testified that they had grown up with abusive parents. Their father, a Baptist preacher, would interrupt church services to loudly beat his son with a belt in the hall, she said. John Gardner's appellate attorneys later said trial lawyers didn't properly search for other evidence that could have turned the jury toward life.

The slaying wasn’t John Gardner’s first domestic violence conviction. Three of his previous four wives had also reportedly been abused by him, according to a federal court ruling. In 1983, he was convicted of aggravated assault in the shooting of his wife at the time, Rhoda Gardner, who was pregnant and later died from her injuries. He served two years of an eight-year sentence in Mississippi. After two years on parole, he was again imprisoned after being accused of assaulting his new wife’s daughter, who required hospitalization, and kidnapping his wife at knifepoint.

At the Tammy Gardner murder trial, prosecutors also presented evidence that John Gardner sexually assaulted his wives’ young daughters.

His appellate lawyers argued most recently to the U.S. Supreme Court about the abandonment rage defense. They said lower courts had wrongly rejected such claims.

“[John Gardner’s] violent domestic history further supports the fact that he abused or killed his former spouses and their children ‘to manage his relationships,’ and not because of their status as a prospective witnesses who would testify against him,” his attorney, Lydia Brandt, wrote in a petition. “The killing of Tammy Gardner was an estrangement killing — which is not a capital murder offense.”

If he had been convicted of murder, not capital murder, the harshest punishment he would have received is life in prison. The Texas Attorney General’s Office argued to the high court that John Gardner killed his wife because of the upcoming divorce, where she was a prospective witness, and not earlier at the time of the breakup.

John Gardner’s appellate attorneys also said the lack of evidence of a forced entry showed that he wasn’t committing a burglary, the other felony that could trigger the capital murder offense. The state argued Tammy Gardner’s 911 call and her fear for her life indicated she would not willingly let him into her home.

“In fact, uncontrollable rage triggered by abandonment makes it more likely Gardner entered Tammy’s home without her effective consent and for the purpose of harming her,” wrote Texas Assistant Attorney General Matthew Ottoway.

Texas has seven more executions scheduled through May.

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Pelosi designates 7 House managers to prosecute Trump impeachment trial

House Speaker Nancy Pelosi  announced the seven House Democrats managers who will act as the "prosecutors" in the Senate impeachment trial of President Donald Trump, reported NBC News.

The managers are: Reps. Adam Schiff of California, who will be the lead manager; Jerry Nadler of New York' Hakeem Jeffries of New York; Jason Crow of Colorado; Zoe Lofgren of California; Val Demings of Florida; and Sylvia Garcia of Texas.

The managers have varied biographies: Schiff was a federal prosecutor; Demings was a police chief; several are attorneys, and Lofgren was a staffer on the House Judiciary Committee during the Nixon impeachment and a House member during the Clinton impeachment.

"This is about the Constitution of the United States and it's important for the president to know and Putin to know that American voters — voters in America — should decide who our president is," Pelosi said at a press conference with the managers.

She said the House would vote today to approve the managers and transmit the two articles of impeachment to the Senate. The trial is set to begin on Tuesday; it's not yet clear if witnesses will be called.

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Trump's defense team for Senate impeachment trial is taking shape

President Trump's defense team for his Senate impeachment trial is taking shape, reports NPR.

Here are some of the lawyers expected to be in the room when the Senate trial begins:

Pat Cipollone

Cipollone will lead the team. He played a key role in the House impeachment inquiry, writing aggressive letters to House investigators to deny congressional subpoenas. He mainly stayed out of public view, but he will now take a more prominent role. 

"I know that he's held in high esteem by the president," said Ty Cobb, a former White House lawyer.

Trump picked Cipollone, who served as an outside adviser during the Mueller probe, to replace Don McGahn as White House counsel in October 2018.

Jay Sekulow

Sekulow is a personal attorney to Trump. He was a key player in the president's defense during former special counsel Robert Mueller's two-year investigation into Russian interference in the 2016 election.

"He's probably the best constitutional lawyer who will be participating," said Cobb, who worked closely with Sekulow on the White House response to the Russia investigation. 

Sekulow, the chief counsel for the firm American Center for Law and Justice, has also represented Trump on other matters, including the fight over the president's tax returns. He is known for his advocacy on religious liberty issues.

"As the president's private counsel, since I've been involved in all of these inquiries since the beginning, we thought it was then appropriate," said Sekulow of joining the impeachment defense. 

Pat Philbin

Pat Philbin is a deputy to Cipollone. A graduate of Harvard Law School and former partner at Kirkland and Ellis, Philbin clerked for Supreme Court Justice Clarence Thomas. Philbin later served in senior positions in the George W. Bush Justice Department.

As deputy assistant attorney general, Philbin drafted opinions on behalf of the Bush administration in 2001, arguing that President George W. Bush had the authority under the Constitution to establish military commissions at Guantanamo Bay to try to punish people tied to the Sept. 11 attacks.

Mike Purpura

Mike Purpura is another deputy to Cipollone. The former federal prosecutor and Justice Department official joined the White House at the same time as Cipollone.

A former associate counsel in the George W. Bush White House, Purpura negotiated with witnesses who testified in the House impeachment inquiry. For example, he met with Fiona Hill, Trump's former top adviser on Russia and Europe, to discuss her plans to comply with a congressional subpoena. Purpura later wrote a letter to Hill and her attorney outlining the White House's expectations of how she would protect executive privilege.

Alan Dershowitz 

A professor emeritus at Harvard Law School who wrote a book called The Case Against Impeaching Trump, last week told NPR's Here and Now that President Trump had considered adding him to the team. "The reports are true, but I can't comment about whether or not I've agreed to join his legal team. But there's been some discussion of that," Dershowitz said.

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SCOTUS has the power to review impeachment trials

Cleveland Attorney James Robenalt wrote in the Washington Post:

If Senate Majority Leader Mitch McConnell follows through on his desire to hold an abbreviated impeachment trial without witnesses — as many in his party would prefer — he will be testing the limits of the impeachment trial clause of the Constitution. Minority Leader Charles E. Schumer has declared that a trial without witnesses (or perhaps even any documents) would amount to “a coverup.” Worries about a rubber-stamp trial are one reason House Speaker Nancy Pelosi has delayed submitting the articles of impeachment.

If such a sham trial comes to pass, is there any remedy? In fact, there is a stronger case than many think that the Supreme Court has the power to review impeachment trials, to ensure that Senate procedures meet a basic level of fairness.

The only Supreme Court decision addressing the Senate impeachment trial clause is Nixon v. United States (1993) — which has nothing to do with Richard Nixon. When Walter L. Nixon, a federal judge in Mississippi, was impeached in 1989 and removed from office, he sued the United States, the secretary of state and the Administrative Office of the U.S. Courts, arguing that the Senate had not conducted a proper “trial” as required by the Constitution.

The court, with Chief Justice William Rehnquist writing for the majority, ruled against him. It concluded that how the Senate conducted impeachment trials was essentially a political question, because the Constitution gives that body the “sole power” to try impeached officials. That meant the dispute was, in the legal jargon, “nonjusticiable.” But other justices — namely Byron White, Harry Blackmun and David Souter — argued that, while Nixon deserved to lose, it was possible that one day the Senate would conduct such an unfair impeachment trial that the courts would be obliged to hear a case if an aggrieved party sought a judicial remedy. That’s precisely the situation we may face today.

In the events that led to his impeachment, Nixon was convicted of crimes (two counts of making false statements to a grand jury, related to an attempt to interfere in the investigation of a friend’s son) and sentenced to prison. But he refused to resign and continued to collect his judicial salary behind bars. The House therefore impeached Nixon and sent articles to the Senate to conduct a trial.

Under rules established by the Senate to handle impeachments, Nixon’s case was referred to a committee of senators to “receive evidence and take testimony.” After four days of hearings and 10 witnesses, the committee presented the full Senate with a transcript of its proceedings and a report. The House managers and Nixon submitted briefs to the full Senate; after oral arguments from the Senate floor, a personal appeal from Nixon and questions from several senators, the full Senate voted to remove him from office. He appealed, claiming that the Senate had not really “tried” him: Delegating so much work to a small committee was a shirking of its duty, he argued, and not what the founders had intended.

The Supreme Court’s vote against Nixon was 9 to 0. But White and Souter filed concurring opinions (Blackmun joined White’s) that contemporary courts might draw on, should the Senate vote, after a trial that’s clearly perfunctory, to keep Trump in office.

As the court noted in Nixon, the Constitution lays out several indispensable elements of an impeachment trial: The Senate “shall be on Oath or Affirmation”; if it’s the president who’s on trial, “the Chief Justice shall preside”; and conviction requires a two-thirds majority of the members present. Beyond this, the terms of how the Senate tries an impeachment are left to its discretion.

But there are surely limits, White, Blackmun and Souter argued. What if the trial were manifestly bogus? The issue had come up in the oral argument for the case. White asked the solicitor general (Kenneth Starr, as it happens) if, after the House sent over articles of impeachment, the Senate could, “without any procedure whatsoever,” unanimously find the accused guilty on the grounds that he was “a bad guy.” The government replied that, yes, the Senate indeed had that latitude.

That answer troubled several justices. While conceding that it was “extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges,” White wrote, the scenario was hardly unimaginable — and would provide grounds for judicial review. “Were the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House it is quite clear that the Senate will have failed to ‘try’ impeachments,” White wrote

If the Senate were to convict “upon a coin-toss,” Justice Souter added, “or upon a summary determination that an officer of the United States was simply ‘a bad guy,’ judicial interference might well be appropriate.”

“In such circumstances,” he wrote, “the Senate’s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence.”

McConnell has said he does not intend to be impartial — and in fact will work, lockstep, with the White House during the trial. That would violate his oath to “do impartial justice according to the Constitution and laws.” If he dispenses with witnesses and speedily steers the outcome to the one desired by the White House, that would reduce the Senate proceeding to the kind of “summary determination” that the three justices warned about. Collectively, such actions could be seen by reasonable judges as “seriously threatening the integrity of the results” — the standard Souter suggested should trigger judicial review.

Since the Constitution grants the chief justice the privilege of presiding over the trial, he ought to have — and in my view does have, under proper constitutional interpretation — considerable power to steer the Senate toward reasonable standards for weighing evidence and rendering judgments. He cannot and should not be a potted plant. The current Senate rules, however, reduce the chief justice’s role to one of subservience and ceremony; even his rulings on admissibility of evidence can be overridden by the Senate. That cannot possibly be what the founders intended.

Yes, the founders provided that the House would have “sole power” over impeachments and the Senate “sole power” over trials of impeachment. But the Constitution also grants “all legislative powers” to the House and Senate, and still the Supreme Court exercises routine judicial review over laws. If McConnell and his Republican colleagues insist on setting rules that turn the trial into a farce, then the matter would be ripe for judicial review, as outlined by the various justices in Nixon v. United States. The House — through the speaker or the impeachment managers — could take the matter to court.

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WashPo: The Senate has conducted 15 impeachment trials. It heard witnesses in every one

President Trump’s allies in the Senate want to move forward to an impeachment trial without a commitment to calling witnesses, reports the Washington Post. They insinuate that precedent is on their side, but they’re wrong.

The Senate has heard testimony from witnesses at every trial it has completed in its 231-year history. If the current Senate takes seriously its constitutional responsibility to conduct an impeachment trial of Trump and the oath its members will take to “do impartial justice,” then it must not depart from this unambiguous body of precedent. It must hear from witnesses to the president’s misconduct.

Only 19 other individuals besides Trump have been impeached by the House of Representatives. The Senate completed a trial in 15 of those cases, and in every single one of them, it heard testimony from witnesses. Those cases include the only two prior instances in which a president was impeached. At the impeachment trial of Bill Clinton, the Senate permitted House managers to obtain trial depositions of three witnesses — Monica Lewinsky, Clinton confidant Vernon Jordan and White House aide Sidney Blumenthal — and the full Senate viewed video excerpts of those depositions. At 

The Senate has obtained testimony from a large number of witnesses in every impeachment trial conducted in the last 50 years: 21 in the 1986 trial of Judge Harry Claiborne; 55 in the 1989 trial of Judge Alcee L. Hastings; 10 in the 1989 trial of Judge Walter Nixon, and 26 in the 2010 trial of Judge Thomas Porteous. Although at least one senator has suggested that the Senate has no duty to go beyond testimony obtained by the House, that has happened on multiple occasions. The Senate heard from seven witnesses at Walter Nixon’s trial who had not testified before the House; three at Clinton’s trial who also had not testified before the House; and 17 at Porteous’s trial who had not testified before the House.

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PA Supreme Court to study “alleged systemic failures” with Philadelphia’s cash bail system

In an unusual move, the Pennsylvania Supreme Court says it plans to study “alleged systemic failures” in Philadelphia’s cash bail system, reported the Pennsylvania Capital-Star.

In an order issued Monday, the high court says it’s open to suggestions to improving the existing cash bail system, but “any attempt to advocate for the abolition of cash bail,” is not on the table.

In its order, the court agreed to take on the inquiry as part of its “King’s Bench” powers, which gives it supervisory powers over the rest of the statewide judiciary. Typically, the court only wields this authority in matters of “great public importance. Judge John M. Cleland, a senior judge from McKean County, has been named the special master who will oversee the investigation, court documents indicated.

In March, attorneys for the Pennsylvania branch of the American Civil Liberties Union and the Washington D.C.-based law firm Arnold & Porter Kaye Scholer filed a lawsuit on behalf of 10 incarcerated people, as well as a community advocacy group, arguing that “bail magistrates in Philadelphia’s First Judicial District have failed to consider alternatives to cash bail and have assigned cash bail to people who are too poor to afford it.”

In a statement, ACLU Executive Director Reggie Shuford, said his organization is “grateful that the court understands that this situation needs more investigation.

“People who have not been convicted of a crime are sitting in Philadelphia jails only because they are too poor to pay the bail they’ve been assigned. The Philadelphia courts have effectively criminalized poverty,” he said.

In its legal filing, the ACLU claims that Philadelphia courts are violating procedural rules with their bail practices. The high court’s Monday order gives the ACLU and the Philadelphia court officials named as defendants in the case 90 days to submit their evidence. From there, Cleland has 60 days to submit his recommendations to the high court.

“There are people sitting in Philadelphia’s jails right now who have not been proven guilty of a crime,” Nyssa Taylor, criminal justice policy counsel for the ACLU of Pennsylvania, said in a statement. “Bail hearings in Philadelphia typically last less than three minutes, which is wholly insufficient to inquire into someone’s ability to pay, and the person whose liberty is on the line is not even in the room, as they watch the proceedings by video. The bail system in Philadelphia must change.”

Some legal reform groups, including the Brennan Center for Justice at New York University, have called for the elimination of cash bail, arguing that the decision regarding “whether a defendant should be jailed while awaiting trial is often based on a defendant’s wealth and not on public safety considerations.”

The center’s research has further found that “80 percent of the accused are too poor to afford an attorney, more than 60 percent are people of color, and the bulk of the cases are low-level, non-violent offenses. Most of this population cannot afford bail and are incarcerated before trial for long periods even though they have not been found responsible for any crime.”

“[Sixty] percent of the jail population is not convicted but being held pretrial,” Brennan researchers pointed out in a 2012 report, adding that this “issue is a huge contributor to the mass incarceration of people in the United States, resulting in overcrowded facilities and unsustainable budgets … those too poor to pay a money bail remain in jail regardless of their risk level or presumed innocence … U.S. Attorney General Eric Holder in 2011 stated that keeping people awaiting court dates in county jails costs around $9 billion each year.”

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GateHouse: Weinstein lawyers try to remove judge for admonishing client

Matthew T. Mangino

GateHouse Media

January 10, 2020

This past week, each morning a feeble looking Harvey Weinstein hobbled into the State Supreme Court building in Manhattan, New York for the start of his much anticipated sexual assault trial.

Celebrity trial aficionados know the routine - aging defendant, in rumpled suit, arm-in-arm with counsel, looking lost and bewildered. Remember the inexplicably “blind” comedian convicted of sexual assault?

Weinstein stands accused in criminal court of the alleged sexual assault of two women. He has been accused of assaulting as many as 70 other women who, by law, cannot pursue criminal charges due to the passage of time.

Harvey Weinstein appears as though he can’t walk without the aid of a walker, which, by the way, has its metal legs inserted into yellow tennis balls.

Monica Hesse, a Washington Post style-columnist, asked “Can you for one second imagine him (Weinstein) showing up with neon tennis balls?” referring to the Golden Globe Awards ceremony, ironically held the night before his trial began.

The trial is merely at the jury selection stage and already the sparks are flying.

The nearly immobile Weinstein apparently still has good dexterity in his hands. On the second day of jury selection, Judge James Burke admonished Weinstein for using his phone in the courtroom - actually two phones. Judge Burke told Weinstein, “Is this really the way you want to end up in jail for the rest of your life, by texting and violating a court order?”

Weinstein had been noncompliant with court’s order not to use cellphones in the courtroom and with court personnel who asked him to put away his phones on at least three occasions.

Social media was abuzz, was this judge biased against Weinstein? Did the judge want to put this feeble 78-year-old man in prison for life for using a cellphone?

Attorneys for Weinstein showed up the next day in court with a request for Judge Burke to hand the case over to another judge. According to the USA Today, the request for recusal alleged that Burke’s scolding reflects “animus” toward the defendant, and has “created a situation in which the Court’s ‘impartiality might reasonably be questioned,’ in violation of New York State’s Rules of Judicial Conduct.”

In New York, the sole statutory authority for judicial recusal is Section 14 of the Judiciary Law. Section 14 provides that a judge who has a financial interest in a case or is a relative of one the parities must recuse herself from presiding over the case - scolding a defendant for violating court rules is not on the list.

The courts in New York have ruled, “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court.”

Judge Burke refused to step aside.

There is a long standing doctrine in the law known as the “duty to sit.” The duty to sit encourages judges to hear and decide cases unless there is a compelling reason for recusal.

The duty to sit also discourages litigants from forum shopping - defense attorneys using recusal to find a more favorable judge. The doctrine also makes it difficult for judges to simply recuse themselves from controversial cases. Jeffrey T. Fiut, writing in the University of Buffalo Law Review, explained ”(T)he judge has a responsibility to hear and decide cases, one that should not be shirked for political or personal reasons.”

“There’s nothing prejudicial or inflammatory (about) scolding a defendant,” said Judge Burke. “If using strong or even hyperbolic language succeeds after stern admonishments have failed, then the court has accomplished its goals.”

Weinstein’s feeling are hurt - someone told him “no.” There will be many more distractions as this case moves forward, but the ultimate goal will not change - justice for the accused and justice for the victims.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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