Tuesday, March 31, 2020

GOP lawmaker wants Pennsylvania businesses to reopen in the midst of spreading pandemic

A Republican state lawmaker from Adams County says he wants to send Pennsylvanians back to work -- despite a Wolf administration order mandating the shutdown of all "non-life sustaining" businesses, reported the Pennsylvania Capital-Star.

In a memo seeking support for his plan, Sen. Doug Mastriano accused Democratic Gov. Tom Wolf of picking "winners and losers" with his proposal, and said the waiver process the administration had set up allowing business owners to appeal the order is "flawed, ineffective, lacks accountability, has no oversight, and is riddled with unconstitutional powers."

As it's currently written, Mastriano's proposal would allow businesses to reopen their doors if they "[utilize] health and safety guidelines outlined by the Centers for Disease Control, and the U.S. Dept. of Labor's Occupational Safety & Health Administration," he said in a statement.

“This legislation will allow all businesses to reopen if they agree to abide by Centers for Disease Control mitigation measures to contain the spread of the virus,” Mastriano said. 
To read more CLICK HERE

Misconduct by Police, Prosecutors, and other Government Officials Continues to Drive Majority of Wrongful Convictions, Report Shows

In 2019, the National Registry of Exonerations recorded 143 exonerations, setting a record for the number of years lost to prison for crimes exonerees did not commit. Collectively, innocent people who were exonerated last year spent 1,908 years incarcerated, an average of 13.3 years lost per exoneree. Official misconduct by police, prosecutors, or other government actors accounted for at least 93 exonerations in 2019. Seventy-six defendants were exonerated of homicide. 

“Right now, there are likely thousands of innocent people in U.S. jails and prisons as a result of wrongful convictions. It is hard to imagine the horror of being incarcerated today -- innocent or guilty -- as the COVID-19 virus is spreading through these closed spaces and threatening lives,” said Barbara O’Brien, the report’s author, who is a law professor at Michigan State University and the editor of the National Registry of Exonerations.

Illinois had the most exonerations in 2019 with 30, followed by Pennsylvania (15), Texas (15), New York (11), Michigan (9), and California (7). The main reason for the high number of exonerations in Illinois was the continuing fallout from a scandal involving police officers who planted drugs on people who refused to pay them.  

The 2019 report shows that, when faced with the power of the state, wrongly accused defendants can succumb to coercion, fear, and exhaustion and wind up behind bars, even though they are innocent. Last year, 24 exonerations involved false confessions. Thirty-four exonerations were for convictions based on guilty pleas. Fifty exonerations were for convictions in which no crime was committed, such as drug prosecutions for substances that were not illegal drugs.

County prosecutors and state attorneys general continue to open Conviction Integrity Units -- divisions of prosecutors’ offices that are dedicated to preventing, identifying, and remedying false convictions -- at a fast rate. As of the date of publication, there are 60 CIUs in operation. The 2019 report records 14 new offices that opened in 2019, as well as a newly noted CIU in Alameda County, California. The locations of the new CIUs include Contra Costa County, California; Broward County (Fort Lauderdale), Florida; Fulton County (Atlanta), Georgia; and St. Louis County, Missouri. New Jersey and Michigan opened statewide CIUs in 2019 and Pennsylvania opened a statewide CIU in 2020.

The most common form of official misconduct documented in the Registry involves police or prosecutors concealing evidence that points to the defendant’s innocence. For example, Charles Finch was sentenced to death in 1976 and was exonerated in 2019 after spending almost 43 years in prison in North Carolina for a murder he did not commit. At trial, the prosecution presented testimony that pellets from a shotgun found in Mr. Finch’s car were “just like” pellets found in the victim’s body. The prosecution failed to disclose that the North Carolina State Bureau of Investigation had examined the pellets and was unable to find sufficient similarities. Decades later, attorneys at the Wrongful Conviction Clinic at Duke University School of Law obtained the ballistics report and other evidence that had never been disclosed to Mr. Finch or his attorneys. When he was released last year, Mr. Finch, at 81 years old and using a wheelchair, said, “I’m just glad to be free. I feel good.”

This summer, the Registry will launch a new section of exonerationregistry.org to document “group exonerations.” Group exonerations involve a pattern of misconduct by official actors; most often, it is police officers who repeatedly and systematically frame innocent defendants. The study of group exonerations is important for uncovering instances and patterns of official misconduct and preventing it in the future.
Read the report “Exonerations in 2019” at http://bit.ly/ExonsIn2019

Monday, March 30, 2020

Police departments being ravaged by COVID-19

More than a fifth of Detroit’s police force is quarantined; two officers have died from coronavirus and at least 39 have tested positive, including the chief of police. reported The Associated Press.
For the 2,200-person department, that has meant officers working doubles and swapping between units to fill patrols. And everyone has their temperature checked before they start work.
An increasing number of police departments around the country are watching their ranks get sick as the number of coronavirus cases explodes across the U.S. The growing tally raises questions about how laws can and should be enforced during the pandemic, and about how departments will hold up as the virus spreads among those whose work puts them at increased risk of infection.
 “I don’t think it’s too far to say that officers are scared out there,” said Sgt. Manny Ramirez, president of Fort Worth Police Officers Association.
Nearly 690 officers and civilian employees at police departments and sheriff’s offices around the country have tested positive for COVID-19, according to an Associated Press survey this week of over 40 law enforcement agencies, mostly in major cities. The number of those in isolation as they await test results is far higher in many places.
Anticipating shortages, police academies are accelerating coursework to provide reinforcements. Masks, gloves and huge volumes of hand sanitizer have been distributed. Roll call and staff meetings are happening outside, over the phone or online. Precinct offices, squad cars and equipment get deep cleaned in keeping with Centers for Disease Control and Prevention guidance.
Yet, many are worried it’s not enough. This week, groups representing American police and fire chiefs, sheriffs, mayors and county leaders asked President Donald Trump in a letter to use the Korean War-era Defense Production Act to ensure they have enough protective gear.
“We’re in war footing against an invisible enemy and we are on the verge of running out” of protective supplies, said Houston Police Chief Art Acevedo, president of the Major Cities Chiefs Association. “We’ve got hospitals calling police departments, police departments calling each other, and it’s time to nationalize in terms of our response.”
Police are accustomed to meeting staffing crunches by canceling vacations and leave, putting officers on 12-hour on, 12-hour off schedules and, when necessary, by shifting detectives and other specialized personnel to patrol.
To read more CLICK HERE

Sunday, March 29, 2020

New York police report a drop in crime during pandemic

Measures adopted to stop the spread of the coronavirus in New York appear to have put a dent in crime, New York City’s police commissioner, reported the New York Times.
The drop in crime is not just in New York.  In fact, in Chicago, Detroit, Los Angeles and San Francisco, recent data show big drops in crime reports, week over week. The declines are even more significant when we compare this year with the same time periods in the three previous years.
Police Commissioner Dermot F. Shea, expressed concern about the persistence of violent crimes like robberies and shootings. And he specifically said he was troubled by a “dramatic” decline in reports of sexual assaults and domestic violence.
“We saw an immediate drop in most categories in crime,” Commissioner Shea said at a news briefing, when asked how the new restrictions on businesses had affected public safety.
Compared with the previous week, the police recorded 443 fewer serious crimes, like assault and burglary, in the week that ended on Sunday, a 24.5 percent decline. Officers also made 1,538 fewer arrests last week compared with the week before.
Last week, detectives received just 25 new complaints that met the federal threshold for rape, compared with 51 the week before. The number of other sex crimes reported fell to 62 last week, compared with 102 on March 15.
“Maybe I’m just glass half empty here,” Commissioner Shea said, “but I can’t imagine that the crimes aren’t happening. I’m sure that there’s many crimes happening.”
Mr. de Blasio noted a surge in bias attacks aimed at the city’s Asian residents, and he urged the victims of such crimes to contact the police right away.
As crime ebbed, more Police Department employees became infected. As of Tuesday, Commissioner Shea said, 211 department members had tested positive for the virus, including 177 uniformed officers.
Two of the city’s biggest police unions say the department is failing to inform officers when someone they have worked with has tested positive.
The Police Benevolent Association, which represents rank-and-file officers, has instructed members to log sick time or time spent in quarantine related to the virus on line-of-duty injury forms, while the Sergeants Benevolent Association has assigned its delegates to monitor commands for reports of new cases and exposures.
The goal, an official said, was to avoid something similar to what occurred after the Sept. 11, 2001, terrorist attacks, when many officers who worked to clean the wreckage at the World Trade Center site did not have records of the time they spent there.
To read more CLICK HERE

Saturday, March 28, 2020

President wants to implement unprecedented tri-state cordon sanitaire

President Trump is not seeking to quarantine New York, New Jersey and Connecticut. He is seeking  authority to order a “cordon sanitaire” which is not just a quarantine it is the forceful dentition of people who are ill and not ill.  A cordon sanitaire is right out of a sci-fi movie--a state or states where no one can go in or out.
 Normally this authority rests with state governors.Such authority has far-reaching implications for those not yet infected. They are being forcefully detained in an area where infected persons remain.
The last known time that a cordon sanitaire was used was with towns in Zaire during the Ebola outbreak.
The government attempts to balance the good of the community with individual liberty. In times of international crisis, there is a heightened need to zealously protect those individual rights.

GateHouse: DOJ seeks to curtail rights during health emergency

Matthew T. Mangino
GateHouse Media
March 27, 2020
In the face of a surging COVID-19 pandemic, the U.S. Department of Justice has asked Congress for the ability to detain people indefinitely without trial, to extend the statute of limitations in criminal cases and limit the constitutional right to confrontation.
There is no question that the nation is facing an unprecedented emergency, but now, especially now, is not the time to ignore the U.S. Constitution.
At stake are three fundamental rights that are afforded all persons accused of a crime - the right to a speedy trial, the government’s responsibility to file charges within a reasonable, statutorily established, period of time, and the right to confront one’s accuser.
A defendant’s right to a speedy trial has constitutional and statutory underpinnings. The Sixth Amendment provides, through the Speedy Trial Clause, that an accused formally charged or detrained pretrial is entitled to have his case heard with reasonable diligence. Rule 48 of the Federal Rules of Criminal Procedure grants trial courts discretion to dismiss cases that are not brought to trial promptly.
The reason for a speedy trial rule is to prevent the government from arresting an accused and letting him or her languish in jail without being proven guilty. During this health emergency it is important to bring pretrial detainees to trial as quickly as possible or let them out of jail until trial.
The Constitution grants people habeas corpus which gives the accused the right to appear in front of a judge and ask to be released before trial. Adopting Attorney General William Barr’s recommendations would essentially suspend habeas corpus indefinitely until the emergency ended. However, Article I, Section 9, Clause 2 of the U.S. Constitution provides, “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion ...” A national health emergency is not listed as a reason to suspend habeas corpus.
Federal statutes of limitations provide a time frame within which charges must be filed. For instance, in state court the statute of limitations might be two years for a misdemeanor theft. If charges are not filed within two years of the date of the crime the charges are forever barred.
Such limitations are a product of the Fifth Amendment Due Process Clause. The purpose and effect of a statute of limitations is to protect defendants. The statute is based on the premise that if the government has a case they should pursue it with reasonable diligence. A delay could result in the defendant losing evidence necessary to disprove the claim; and litigation of a long-dormant accusation may result in an injustice.
The justification for extending the statute of limitations is that due to the health emergency the police are too busy and the courts may be closed - so the statute should be extended to pursue untimely cases. If those cases were butting up against the statute before the emergency, they have already been delayed for nearly two years or five years or longer depending on the alleged criminal conduct.
Instead of a blanket extension, the court should conduct a hearing to determine if prosecutors used due diligence to bring the case to trial before the health emergency and then, as swiftly as possible, after the emergency.
Finally, the Sixth Amendment guarantees the right to confront the witnesses against the accused. This right is known as the Confrontation Clause. This clause guarantees criminal defendants the opportunity to face the prosecution’s witnesses in the case against them and dispute the witnesses’ testimony.
The right to confront witnesses face-to-face is a fundamental right for those accused of a crime. The DOJ wants to use videoconferencing to permit a defendant in jail to participate in a proceeding remotely. Remote hearings are already being utilized for bail and extradition, but not for “critical stage” proceedings.
The idea of conducting a critical stage hearing without the defendant being present is extreme. In fact, some states had to amend their state constitutions to permit child victims to testify by video conferencing - outside the presence of the defendant.
Congress needs to proceed with caution. Setting aside fundamental constitutional rights for any reason is dangerous.
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.
To visit the column CLICK HERE

Friday, March 27, 2020

Americans willing to sacrifice civil-rights to confront pandemic

To assess how Americans weigh the trade-off between preserving civil liberties and halting the spread of the coronavirus, The Atlantic conducted a survey last week, just as state and local governments were beginning to implement their most restrictive policies yet. The survey reveals a remarkable willingness to tolerate civil-rights violations in order to confront the pandemic, regardless of party affiliation.
We presented a nationally representative sample of 3,000 U.S. residents with eight possible policy responses to the outbreak, all of which may be unconstitutional, including forced quarantine in a government facility, criminal penalties for spreading misinformation, bans against certain people entering the country, and conscription of health-care workers. We also asked our sample to imagine that public-health officials had reviewed the policies and estimated that each would likely save some number of lives, hypothetical figures that we provided.
A majority of respondents supported all eight of these policies, most by considerable margins. The proposals with the lowest support were seizing businesses and banning all citizens and noncitizens outside the country from entering, but these policies still had 58 and 63 percent support, respectively. The proposals with the highest levels of support were banning noncitizens from entering the country (85 percent) and conscripting health-care professionals to work despite risks to their own health (78 percent). Both policies burden a defined minority of the population, so it’s not surprising that large majorities support them. But criminalizing speech based on its content, an idea antithetical to modern American constitutionalism, was also very popular: About 70 percent of respondents supported restricting people’s ability to say things that may qualify as misinformation. Likewise, 77 percent of respondents support suspending all religious services and gatherings, thereby restricting religious freedom. And even when we explicitly told half of our sample that the policies may violate the Constitution, the majority supported all eight of them—even the speech restrictions.
Perhaps the most striking feature of our results is the broad bipartisan endorsement of these liberty-restricting policies. Like other surveys, ours reflected a huge gap between Democrats and Republicans in approval of President Donald Trump’s handling of the pandemic: 34 percent of Democrats expressed approval, while 88 percent of Republicans did. One might have reasonably concluded that different policy preferences were driving these responses: that Democrats want aggressive government intervention, which they feel the president has failed to deliver, while Republicans—encouraged by Trump’s early dismissal of the outbreak—prefer a wait-and-see or laissez-faire approach.
To read more CLICK HERE

Wednesday, March 25, 2020

SCOTUS rules states not required to offer traditional insanity defense

The U.S. Supreme Court ruled that the due process clause doesn’t require states to offer a traditional insanity defense based on a defendant’s inability to distinguish right from wrong, reported the ABA Journal.
The Supreme Court ruled 6-3 in the case of Kansas death row inmate James Kraig Kahler, who was convicted of killing four family members in 2009. Justice Elena Kagan wrote the majority opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.
In Kansas, a defendant can invoke mental illness to show he lacked the required mental state that is a required element of the crime. A defendant can also raise any kind of mental illness after conviction to seek a lower prison term or commitment to a mental health facility.
Kansas is among a handful of states that don’t recognize the traditional insanity defense that provides for acquittal when a mentally ill defendant is unable to distinguish right from wrong.
A mentally ill defendant in Kansas who was able to form the intent to kill, even if he or she believed the murder was morally justified, would be convicted, Kagan said.
That means a defendant in Kansas who killed someone because he believed God had ordained the sacrifice would be convicted, Kagan wrote in her opinion. But a defendant who didn’t understand the function of a gun or the consequences of its use would be acquitted in a fatal shooting.
Kahler had argued that the traditional insanity test was so rooted in the common law that it could not be jettisoned. Kagan disagreed. “No insanity rule in this country’s heritage or history was ever so settled as to tie a state’s hands centuries later,” she wrote.
“Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like. That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds.”
Justice Stephen G. Breyer said the traditional insanity defense was rooted in “700 years of Anglo-American legal history” and Kansas could not constitutionally eliminate any inquiry into the blameworthiness of the defendant. Justices Ruth Bader Ginsburg and Sonia Sotomayor joined the dissent.
Breyer offered his own example to illustrate the Kansas law.
“In Prosecution One,” Breyer wrote, “the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim.
“Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.”
The ABA said in an amicus brief that it supported the traditional insanity defense.
To read more CLICK HERE

Tuesday, March 24, 2020

Colorado abolishes its death penalty

Colorado abolished its seldom-used death penalty, joining a growing number of states that have eschewed capital punishment as a deterrent to the most serious crimes, reported The New York Times.
Gov. Jared S. Polis, a Democrat, signed the repeal into law after it had reached his desk from the state legislature. It had passed the Senate in January and the House in February after several failed attempts to end capital punishment in the state.
Colorado had executed just one person since reinstating the death penalty in the mid-1970s: Gary Davis, who had been convicted of the rape and murder of Virginia May, was given a lethal injection in 1997.
On Monday, Mr. Polis also commuted the sentences of three men on death row — Robert Ray, Sir Mario Owens and Nathan Dunlap — to life in prison without the possibility of parole. He said in a statement that he wanted the law to be applied consistently.
 “Commutations are typically granted to reflect evidence of extraordinary change in the offender,” Mr. Polis said, noting that this was not the reason he was commuting the three sentences.
“Rather, the commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the state of Colorado,” he said, “and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the state of Colorado.”
Colorado joined 21 other states that have repealed the death penalty, according to the advocacy group Equal Justice USA, which had campaigned for the end of capital punishment in the state. The organization mounted similar efforts in New York, New Jersey, Connecticut, Maryland and Illinois, which have all abolished the death penalty.
Shari Silberstein, the group’s executive director, said in a statement that it was a proud moment for Colorado.
 “With Gov. Polis’s signature, the state liberated itself from one of the most glaring failures of the legal system and is charting a new path toward justice,” she said. “Instead of wasting millions of dollars every year, the state can focus on the healing that survivors of violence need while also working toward making families and communities safe by preventing future violence.”
George Brauchler, a Republican district attorney in Colorado, criticized the repeal in a statement on Monday.
“There are a few in Colorado today who will cheer the sparing of the lives of these coldblooded murderers,” he said. “For the rest of Colorado, make no mistake: We will save no money. We are not safer. We are not a better people. And the only lives spared are those who commit the ultimate acts of evil against us.”
To read more CLICK HERE

Monday, March 23, 2020

New Jersey releases jail inmates in the face of pandemic

On Sunday, March 22, New Jersey Chief Justice Stuart Rabner signed an order that had been negotiated by criminal justice stakeholders, including the ACLU-NJ. All people serving sentences in county jails across the state are subject to the order, although prosecutors can challenge the release of specific individuals where they contend there exist significant risks to the person being released or to public safety. The order could impact up to 1,000 people incarcerated in county jails.
The order (PDF) does not commute people’s sentences, but instead orders their temporary release during the COVID-19 public health crisis. At the conclusion of the emergency, judges will determine whether any sentences should be commuted. The Order takes extraordinary steps to prevent unnecessary incarceration or superfluous interactions with the criminal justice system altogether during this time, such as suspending most outstanding warrants and preventing in-person reporting to probation officers.
The order coincides with heroic efforts from the Office of the Public Defender to secure the release of many of their clients from pretrial detention in county jails. The efforts of public defenders have been met with success in many counties due to the defenders’ tireless work, as well as prosecutors’ understanding of the practical benefits of reducing jail populations by reconsidering requests for pretrial detention in this unprecedented time.
To read more CLICK HERE

Sunday, March 22, 2020

GateHouse: Release non-violent pretrial detainees to combat spread of COVID-19

Matthew T. Mangino
GateHouse Media
March 20, 2020
Local officials nationwide must immediately take action to release all non-violent detainees being held pretrial in local jails and prisons.
Those sitting in local jails awaiting trial have not been convicted of a crime. Everyone accused of a crime, with the exception of those accused of first degree murder, are entitled to bail.
Monetary bail was introduced as a way to ensure that those accused of a crime would show up in court to face the charges against them. Those sitting in jail awaiting trial would be on the street, but for their inability to afford a cash bond.
Think about that concept - poverty is a ticket to jail. If you have money, no matter what the risk level, regardless of the alleged wrongful conduct, you remain in the community.
There has been growing concern about the inequity of money bail. That concern is amplified by the COVID-19 outbreak. As colleges and universities close; local schools shut down; sporting events, concerts and Broadway plays go into hiatus - state and federal governments have declared a national health emergency.
Many states are declaring that groups of more than 10 people should not gather. All non-essential businesses have been ordered to close. The Centers for Disease Control and Prevention is promoting social distancing - maintaining a distance of six feet from others.
Try implementing those suggested restrictions in the local county jail.
Infectious diseases thrive in environments where groups of people are gathered in close proximity to one another. Couple that with a generally unsanitary environment; with an often inadequate number of working sinks and toilets; limited access to toiletries like soap and sanitary towels; where hand sanitizer is contraband - and you have a recipe for disaster.
“One of the greatest fears for any prison director” is a pandemic, said Laurie Robinson, a former assistant attorney general who was part of a congressional task force that examined the federal prison system in 2015.
“You have a confined population that already may not be in the best of health due to prolonged drug use and alcohol abuse,” Robinson told the USA Today. “There is often no way to set up an effective quarantine” because prisoners are confined in small cells. “You also have staff in those very close quarters that makes them so vulnerable, too,”
The concern with the spread to prisons and jails is real and it is here. Two Santa Clara County jail inmates are in quarantine, they were visited by a defense attorney who later tested positive for coronavirus, reported the San Jose Mercury.
This week, the New York City Department of Corrections reported its first case of inmate COVID-19. The Federal Bureau of Prisons has reported that six inmates in Seattle tested negative for the virus after exhibiting flu-like symptoms. At least 65 people in jail in Washington, D.C., are in quarantine after contact with a carrier from law enforcement.
For many pretrial detainees their stay might be getting longer. According to the ABA Journal, all federal criminal cases scheduled for jury trial in the Southern District of Ohio are delayed for 30 days. Dozens of states are also pausing trials statewide according to the National Center for State Courts. Those states include Arizona, Colorado, Hawaii, Louisiana, Maryland, Missouri, Pennsylvania and Virginia. Other states have scaled back jury trials including New York, New Jersey and Florida and Massachusetts. There is sure to be more to follow.
There are 3,163 local jails across the country. According to the Prison Policy Institute, within those walls are 612,000 inmates, of which 462,000 have not been convicted of a crime.
Should the non-violent segment of those 462,000 people now experience isolation from family; the extension of their time behind bars awaiting trial; all the while being exposed to the potential rapid spread of a deadly virus just because judges and prosecutors want to make sure they show up for trial?
The following recommendations would go a long way in protecting those being held in prisons and jails. All non-violent pretrial detainees should be released. Courts should immediately refrain from admitting any new non-violent pretrial detainees. All new admissions to jails and prisons should be tested for COVID-19, and confirmed cases of the virus, and those displaying symptoms, should be isolated, or quarantined, in a correctional facility adapted for that purpose.
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.
To visit the column CLICK HERE

Thursday, March 19, 2020

Colorado death penalty trial moves forward in spite of pandemic

This is the third in a series of blogs today regarding the interplay between the pandemic and the death penalty.  Earlier I wrote about the state of Texas canceling an execution due to the pandemic; a Pennsylvania death row inmate who wants released because he has COVID-19 symptoms; and now the death penalty trial proceeding in Colorado despite a State Supreme Court order suspending normal state court operations as a precaution against the pandemic, as reported by the Colorado Independent. 
Dreion Dearing, 24, is accused of killing Adams County Deputy Heath Gumm in January 2018. 
The showdown playing out between Dearing’s public defenders and Adams County’s 17th Judicial District judges pits the constitutional right to a speedy trial against the constitutional rights to a public and fair trial. All this at a time when the state legislature just passed a bill to repeal the death penalty, which Gov. Jared Polis is expected soon to sign into law.
“From what I’ve read and seen, the 17th Judicial District and state judicial (branch) have failed in their obligation to ensure a safe environment for jurors and all involved individuals in order to rush to kill Mr. Dearing, another man of color facing the death penalty in Colorado,” said Faisal Salahuddin, a civil rights and criminal defense lawyer in Denver who is not involved in the case.
Dreion Dearing and his family members (picture included in a court motion)
“What’s the purpose of all the metal detectors, cameras and security you have to go through in courthouses if they’re willing to put jurors at risk like this? I mean, is it all just a show?” he added. “This is unreal.”
District Attorney Dave Young, who is prosecuting Dearing, has said through his spokeswoman that his office has no response to the defense’s concerns.
Colorado Supreme Court Chief Justice Nathan Coats issued an order Monday shutting down most state courts through at least April 3. 
He has left the door open for chief state district judges to allow some proceedings, including those for bail, protection orders, probation revocation, child protection and parenting time, emergency health proceedings, and “proceedings necessary to protect the constitutional rights of criminal defendants.”
Dearing’s case falls into the last category because his right to a speedy trial expires on March 23, a six-month time frame based on when he entered his plea.
But his lawyers and District Judge Mark Warner have disagreed about whether the trial already has started. 
Beginning March 9, the judge had potential jurors report to the courthouse in groups of 250 each morning and afternoon to fill out questionnaires in the case. In what experts say is an unusual move, Warner refused to let Dearing and his lawyers sit in on videotaped instructions to prospective jurors and observe their reactions. The judge then set what he called a “hearing” Tuesday, also prohibiting Dearing and his lawyers from attending. (The judge also has barred this reporter from all future proceedings for taking pictures in his nearly empty courtroom during a recess in violation of court policy. The pictures included one of dirt from a courtroom bench on a disinfectant wipe.)
Adams County Deputy Heath Dumm (picture included in a court motion)
Tuesday morning, 17th Judicial District Chief Judge Emily Anderson issued an order saying that because of the coronavirus outbreak, the courthouse in Adams County will be closed to the public, operating with reduced staff and “a focus on matters of immediate concern for public safety.” Anderson — who has not responded to a Colorado Independent inquiry today — ordered that Dearing’s proceeding, set for 1:30 this afternoon, go forward despite health concerns. 
Dearing’s lawyers filed a response this morning objecting to the court holding any part of the proceedings in a closed courtroom, saying it violated his rights to a public trial. They argue that his trial started on March 9, when jurors were first summoned to the courthouse about the case, and met the speedy trial requirement. Today’s proceeding would not be a hearing, they say, but rather part of Dearing’s trial.
Judge Warner, in response, issued an order at 10 a.m. postponing the proceeding until tomorrow, Wednesday. 
Jurors are scheduled to appear this Friday, March 20, for voir dire, the process in which prosecutors and defense lawyers personally question them for jury selection. They are expected to be asked about their views of the death penalty, their willingness to avoid publicity about the case, and factors that would make jury duty a hardship. 
A “hardship,” defense experts tell The Independent, would include health concerns about having to sit through what likely will be a months-long trial during a time of pandemic, social distancing, and, potentially, quarantine. 
Judge Warner said at a hearing on Friday that his staff has taken precautions by measuring off seats six feet apart from each other so potential jurors may undergo questioning at a safe distance from each other. Six jurors will be called in each morning, then six in the afternoon each day until lawyers agree on a pool of 125. From there, lawyers will whittle down that pool to a panel expected to consist of 12 jurors and six alternates. 
One of Dearing’s defense lawyers, Joe Archambault, chief deputy state public defender, asked Warner on Friday to ensure that all potential jurors be tested and deemed COVID-19 free before reporting back for jury duty. The judge — who has promised his staff would use paper towels and disinfectant in jury spaces — denied that request. 
To read more CLICK HERE

PA death row inmate wants released because of symptoms of COVID-19

Pennsylvania death row inmate has developed symptoms of the coronavirus, but hasn't been tested or received the necessary medical treatment, reported Newsweek.
Walter Ogrod, 55, has spent almost 28 years behind bars for the 1988 murder of four-year-old Barbara Jean Horn.
But last month, the Conviction Integrity Unit of the Philadelphia District Attorney's Office filed a request for his conviction and death sentence to be vacated after determining that Ogrod is "likely innocent," citing unreliable scientific evidence, false testimony, and alleged misconduct by police and prosecutors.
Earlier this week, Ogrod's attorneys learned the Philadelphia Court of Common Pleas would not grant their request for a prompt hearing. His next court date, set for March 27, has been postponed until June 5.
Now, Ogrod's lawyers and the district attorney have filed emergency motions to secure his release from state prison and transfer to a hospital after he developed symptoms of COVID-19, the disease caused by the novel coronavirus.
Walter Ogrod has developed serious symptoms for COVID-19, but hasn't received a test or adequate medical care, his attorneys said.
He developed a high fever, cough, and difficulties breathing, his attorney James Rollins said, but hasn't been given medical treatment despite being in a high-risk category due to his age and medical conditions.
"Walter Ogrod is an innocent man who has spent nearly three decades on Pennsylvania's death row for a crime he did not commit," Rollins said in a statement provided to Newsweek. "He is now showing potentially life-threatening signs of COVID-19 with a high fever, cough, and difficulty breathing.
To read more CLICK HERE

COVID-19 has saved its first life, for now

A Texas man who killed his pregnant wife, father-in-law and five-year-old daughter has been spared from death by COVID-19. The Texas Court of Criminal Appeals delayed the execution of John William Hummel due to the COVID-19 outbreak, reported Jurist. The execution was scheduled for March 18, 2020, but the court determined that “the execution should be stayed at the present time in light of the current health crisis and the enormous resources needed to address that emergency.”
In the motion to the court, Hummel’s attorney, Michael Mowla, claimed that if there are unexpected absences due to the novel coronavirus, “the execution could be botched in an unexpected and grotesque manner.”
Mowla went as far as to suggest that the execution could itself assist in spreading COVID-19. “Gathering all these people in one location presents a substantial risk of transmission of COVID-19/Coronavirus if anyone is infected.” Further, Texas delayed executions in the wake of September 11, 2001 and Hurricane Harvey according to Mowla.
Hummel was convicted of the 2009. The execution was scheduled for Wednesday, March 18, but is stayed for 60 days.
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Tuesday, March 17, 2020

Kentucky sheriff: Please stop committing crimes until coronavirus pandemic ends

In the midst of the coronavirus crisis, the Powell County sheriff’s office is trying a new approach to stop crime: ask nicely, reported the Lexington Herald Leader.
“Due to the coronavirus, the sheriff’s department is asking that all criminal activities stop until further notice,” the department said in a Facebook post. “Thank you for your anticipated cooperation in the matter. We will update you when we deem it’s appropriate to proceed with yo bad selves.”
COVID-19 has led to a lot of cancellations and postponements for sporting and other public events, conferences and more locally, in the state and worldwide. It hasn’t, however, caused a temporary stop in criminal activity.
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Sunday, March 15, 2020

Courts postpone majority of operations in Cook County, Illinois

The vast majority of Cook County court operations, both criminal and civil, will be postponed for nearly a month beginning Tuesday as a precaution against coronavirus, the chief judge’s office confirmed, reported the Chicago Tribune.
Courthouses across the county will remain open “though there will be fewer cases,” according to a statement from the office. Regular operations are expected to resume April 15 at the earliest, according to a statement from Chief Judge Timothy Evans’ office.
Attorneys and other court personnel now face the prospect of shuffling around thousands and thousands of criminal cases, from murders to drug possession.
The county court system is not known for its efficiency even in the best of circumstances, and such a delay has the potential to create chaos. Even brief closures last year due to extreme cold weather threw schedules off balance for weeks.
The courts, by design, keep people from all over Cook County in close quarters — in jury rooms, holding cells and courtroom galleries. And such close contact would be expected to accelerate the spread of the disease, officials said.
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Saturday, March 14, 2020

GateHouse: Supreme Court takes another look at juvenile life without parole

Matthew T. Mangino
GateHouse Media
March 13, 2020
During the summer of 2004, 15-year-old Brett Jones was living with his grandparents in Lee County, Mississippi. One afternoon Jones got into an argument with his grandfather and stabbed him to death.
Jones had claimed he acted in self-defense. Prosecutors argued that Jones was an angry young man who killed his 67-year-old grandfather by deliberately stabbing him eight times, hiding his body and fleeing.
Jones was tried and convicted of first-degree murder. The court sentenced Jones to a mandatory sentence of life in prison without the possibility of parole - the only sentence available at the time.
Less than three months before the verdict in Jones’ case, the United States Supreme Court struck down the death penalty for juveniles. In Roper v. Simmons, the high court ruled that a national consensus had established the nation’s evolving standards of decency against executing juveniles.
The Supreme Court’s ruling permitted Jones to narrowly escape execution. That is not the only time a Supreme Court ruling would indirectly help Jones. Now his case is scheduled for review by the Supreme Court.
The journey that Jones has taken through the criminal justice system exemplifies the high court’s evolution as it relates to the punishment of juveniles.
In 2010, in a case out of Florida, 17-year-old Terrence Graham was convicted of a home invasion and sentenced to life in prison without the possibility of parole. A year earlier, he was convicted of burglary and attempted armed robbery.
In Graham v. Florida, the Supreme Court ruled that a juvenile can only be sentenced to life without parole if he is convicted of murder. Justice Anthony Kennedy wrote, “The concept of proportionality is central to the Eighth Amendment.” As a result of abolishing the most serious punishment - death - for juveniles, the penultimate punishment - life without parole - must now be reserved for murder.
Two years later, the high court further restricted punishment for juveniles, ruling in Miller v. Alabama that mandatory life in prison for juveniles was unconstitutional. At the time, there were about 2,500 inmates serving life sentences for murders committed as juveniles.
However, the court did not determine if the Miller decision was retroactive until 2016. Once the court ruled that all inmates sentenced to mandatory life in prison prior to Miller were entitled to be resentenced, Jones’ case came back to a Mississippi court for review.
The Mississippi Supreme Court vacated the sentence and remanded the case to the circuit court for resentencing. The circuit court conducted a hearing and found that Jones was not entitled to parole eligibility under Miller.
This week, the Supreme Court agreed to hear Jones’ appeal. The issue raised by Jones is whether a court resentencing a juvenile lifer must determine, and make a finding, that an inmate is not amenable to rehabilitation and is incorrigible. The sentencing court in Jones’s case did neither.
One insight into what the Supreme Court may be thinking is to look at the oral argument last fall in the case of Lee Boyd Malvo, the juvenile D.C. Beltway Sniper, whose case became moot after Virginia enacted a new law that made juveniles, who were sentenced to life in prison, eligible for parole after they had served 26 years.
According to the New York Times, several justices during the Malvo argument indicated that consideration of incorrigibility was important. Left-leaning Justice Elena Kagan said the court’s prior retroactivity decision could be boiled down to two words: “Youth matters.”
Conservative Justice Brett M. Kavanaugh said the Court’s prior rulings required judges to distinguish between “someone who’s merely immature as opposed to incorrigible.“
Will the Supreme Court come to the aid of Brett Jones yet again? Only time will tell, a decision is not anticipated for another year.
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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Thursday, March 12, 2020

Federal judge blasts Robert's Court for 'undermining American democracy'

Judge Lynn Adelman, of the Eastern District of Wisconsin District Court, latest piece in the Harvard Law Review is powerful, reports the blog Above the Law.
The article goes hard after the Roberts Court and the conservative majority who has made it their mission to move American jurisprudence to the far right. A move Adelman calls out as “undermining American democracy.” He begins by pulling the mask off the veneer of impartiality that John Roberts, in particular, loves to drape himself in:
By now, it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes” was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.
And that’s the opening paragraph, y’all.
Adelman then traces the jurisprudential influences to show how the long arc of history has been bent not just to the right, but the far right under the Roberts Court:
[I]n the last third of the twentieth century in response to a number of economic and political developments, including the egalitarian movements of the 1960s, corporations and wealthy conservative donors began to invest large sums of money in promoting conservative ideas. At the same time, a conservative legal movement emerged, and it provided the context in which all of the members of the Roberts Court’s conservative majority came of age. I note that in conjunction with several other developments, the conservatives’ aggressiveness has contributed to causing economic and political power to became increasingly concentrated at the top. As a result of this concentration, government policies have become less and less responsive to the needs of ordinary Americans. I point out that under these circumstances, it would be highly desirable to have a Supreme Court that could at least play some role in righting the ship as the Warren Court did in the 1950s and 1960s when it addressed such long standing deficiencies of American democracy as segregation, malapportioned legislative districts, and a brutally unfair criminal justice system. Rather than counteracting the anti-democratic trends in the country, however, the Roberts Court reinforces them.
Adelman keeps hitting at the Roberts Court throughout the article, resulting in this dire warning:
We are thus in a new and arguably dangerous phase in American history. Democracy is inherently fragile, and it is even more so when government eschews policies that benefit all classes of Americans. We desperately need public officials who will work to revitalize our democratic republic. Unfortunately, the conservative Justices on the Roberts Court are not among them.
But of course, since it is a federal judge taking a political stand, there’s a fair amount of handwringing going on about whether it is okay that Adelman said what he said. But as Dahlia Lithwick and Mark Joseph Stern write for Slate, turnabout is fair play. Conservative jurists make it a habit to “own the libs” — a trend that has only gotten worse since Trump appointees have flooded the federal bench — and Adelman’s writing is no different:
Is it somehow over the ethical line when a progressive judge puts these observations into writing?
Five years ago, we’d have said yes, it goes too far. Under any set of ordinary circumstances, it is always better for life-tenured jurists to stay in their lane, avoid partisan political criticism, and work to preserve the vitally important norms of judicial independence and nonpartisan, oracular judicial temperament. But there remains the question—possibly the abiding question of our time—about whether only one side can remain beholden to norms when the other has eviscerated them.
Evisceration is not an exaggeration. Judge James Ho, a Trump appointee to the 5th U.S. Circuit Court of Appeals, has assumed the role of robed Fox News commentator. He disparages women who get abortions, as well as judges who uphold their right to do so. He claims that we can stop mass shootings by shielding police from lawsuits when they accidentally murder innocent people. He intentionally misgenders transgender litigants—as does his colleague, Kyle Duncan, a fellow Trump appointee. Another judge on the 5th Circuit, Edith Brown Clement (a George W. Bush appointee), penned a partisan attack on her colleagues. And, under the influence of Trump’s judges, the 5th Circuit as a whole has begun defying Supreme Court precedent in a series of blatantly political decisions.
There’s something glorious about the clear way Adelman lays out his argument against the Roberts Court, especially for liberals who’ve taken so many Ls over the course of the Trump administration. But the real judge of the validity of Adelman’s arguments will be history.
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Tuesday, March 10, 2020

SCOTUS to take up another nuance of JLWOP

The Supreme Court agreed to decide whether judges must determine that juvenile offenders are incorrigible before sentencing them to die in prison, reported The New York Times. The case, involving a teenager who killed his grandfather, is the latest in a series of cases on the constitutionality of harsh punishments for youths who commit crimes before they turn 18.
The case, Jones v. Mississippi, No. 18-1259, concerns Brett Jones, who had recently turned 15 in 2004 when his grandfather discovered his girlfriend in his room. The two men argued and fought, and the youth, who had been making a sandwich, stabbed his grandfather eight times, killing him.
In 2005, Mr. Jones was convicted of murder and sentenced to life without the possibility of parole, the mandatory penalty under state law.
In 2012, in Miller v. Alabama, the Supreme Court ruled that automatic life sentences for juvenile offenders violated the Eighth Amendment’s ban on cruel and unusual punishment. The decision repeatedly criticized mandatory sentences, suggesting that only ones in which judges could take account of the defendant’s age were permissible.
In Montgomery v. Louisiana in 2016, the court made the Miller decision retroactive. In the process, it seemed to read the Miller decision to bar life without parole not only for defendants who received mandatory sentences but also “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.
After the U.S. Supreme Court’s decision in Miller, the Mississippi Supreme Court granted Mr. Jones a new sentencing hearing.
After the hearing, the trial judge resentenced Mr. Jones to life without parole. “The court did not find that Brett was permanently incorrigible, nor did it acknowledge that only permanently incorrigible juvenile homicide offenders may be sentenced to life without parole,” Mr. Jones’s lawyers told the U.S. Supreme Court in their petition seeking review. “In fact, it did not address Brett’s capacity for rehabilitation at all.”
The question of whether judges must find that juvenile offenders are incorrigible before sentencing them to die in prison has divided state supreme courts.
In his response to Mr. Jones’s petition, Jim Hood, Alabama’s attorney general, wrote that Mr. Jones had received an adequate hearing and that no specific finding of incorrigibility was required.
The Supreme Court had been set to decide the issue presented in Mr. Jones’s case in the case of Lee Malvo, the younger of the two men who terrorized the Washington region with sniper shootings in the fall of 2002.
When that case, Mathena v. Malvo, No. 18-217, was argued in October, several justices said consideration of whether juvenile offenders were incorrigible was important.
Justice Elena Kagan, who wrote the majority opinion in the Miller decision, said it and the Montgomery decision could be boiled down to two words: “Youth matters.”
“You have to consider youth,” she said, “in making these sorts of sentencing determinations.”
Justice Brett M. Kavanaugh said the two rulings required judges to distinguish between “someone who’s merely immature as opposed to incorrigible.”
The court dismissed Mr. Malvo’s appeal last month after a new Virginia law largely made the case moot.
To read more CLICK HERE

Voters support Alabama policy that permits sheriff's to keep savings from prisoner food allotment

Voters in two Alabama counties passed local constitutional amendments that allow sheriffs to use money allocated for feeding people incarcerated at their jails for purposes other than food, reported The Appeal. The change comes nearly a year after Alabama lawmakers tightened restrictions on the use of these funds to ensure that jail food fund money was not misappropriated. 
Under the amendment, Etowah County Sheriff Jonathon Horton and Marshall County Sheriff Phil Sims will be able to use all money leftover from a designated food fund on law enforcement purposes such as new equipment or staff positions. Legislation passed in May 2019 limited that figure to 25 percent, and required that the rest of the money be transferred to the next year. 
Critics of the plan say they are concerned that the new rules will lead to sheriffs misusing the funds and cutting back on prisoner meals to pay for other needs. “It does certainly seem to run counter to the intent of the legislation, which is money to feed people should be spent on feeding people with only a small fraction going elsewhere,” said Carla Crowder, executive director of advocacy group Alabama Appleseed, which filed a lawsuit on the issue in 2018 along with the Southern Center for Human Rights. 
“This incentivizes them once again to underfeed people in their custody if they know the extras can be used on bells and whistles or guns,” she added.
Horton told The Appeal: Political Report that he hopes to use any surplus money to pay for more school resource officers, law enforcement officers from the sheriff’s office who work in schools. Studies have found that putting more police officers in schools increases arrests for nonviolent behavior, and make public school students more exposed to criminal charges. The county expanded the program last year, but he said there are still not enough officers for each school.
Horton took over the Etowah County sheriff’s office last year after ousting Todd Entrekin, who became known as the “beach house sheriff.” During his tenure, Entrekin pocketed roughly $750,000 from jail food funds and bought a $740,000 beach house while prisoners said they were served rotten lettuce, beans, and noodles, an AL.com investigation found. Another sheriff kept $212,000 from the food fund while serving prisoners corn dogs for each meal for weeks. 
As part of the legislation passed last year, the state increased its payment to $2.25 from $1.75 per inmate per day and required that sheriffs put the money in a separate public fund. Previously, sheriffs could keep the money in a private fund to use at their discretion. 
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Monday, March 9, 2020

Pennsylvania Must End Suspicionless Traffic Stops

Matthew T. Mangino
The Legal Intelligencer
March 5, 2020
Thirty years ago, the U.S. Supreme Court determined that a suspicionless investigatory intrusion on a motorist was justified based on the public’s interest in reducing driving under the influence (DUI). The high court was considering the constitutionality of sobriety check points when it decided Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).
In a 6-3 decision, the court held that sobriety check points did not violate the Fourth Amendment. The court noted that “no one can seriously dispute the magnitude of the drunken driving problem or the states’ interest in eradicating it.” The court then found that “the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight.”
In Pennsylvania, a sobriety check point is “a well-marked, stationary roadblock conducted by the police for several hours at a time.” In Commonwealth v. Beaman, 880 A.2d 578 (2005) the Pennsylvania Supreme Court found, “DUI roadblocks constitute a reasonable means of advancing the vital public interest in reducing drunk driving deaths and injuries, and that they only involve a modest intrusion on the privacy and liberty of motorists. Accordingly, the court has found that suspicionless stops at such roadblocks are constitutionally reasonable.”
The legislature provided statutory authority for sobriety check points at 75 Pa.C.S.A. 6308 (b). The statute provides, “Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.”
The determination of the constitutionality of a checkpoint in Pennsylvania involves balancing the extent of intrusion against the promotion of the legitimate government interest in public safety.
Sobriety check points permit a police officer to evaluate the operator of a motor vehicle for intoxication without having reasonable suspicion or probable cause to make a traffic stop. The police can make a lawful arrest without having any other reason for briefly detaining the operator but some statistics, a public disclosure and a prominent road block.
What the law does not permit are random suspicionless motor vehicle stops to enforce safety on Pennsylvania roadways. Conducting a motor vehicle stop without reasonable suspicion or probable cause is violation under Article 1, Section 8 of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments to the U.S. Constitution.
Section 6308 (b) cited above was amended in 2004. The change involved the replacement of the phrase “articulable and reasonable ground to suspect” with “reasonable suspicion,” thereby lowering the statutory level of suspicion necessary for a police officer to execute a lawful traffic stop.
Although the Fourth Amendment has been interpreted as requiring probable cause to effectuate a lawful arrest, the Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968), created a new level of suspicion somewhere between a hunch and probable cause. In Terry, the court concluded that police may briefly detain an individual for purposes of investigation in circumstances where specific and articulable grounds exist to reasonably suspect that criminal activity is in progress.
Terry’s reasonable suspicion standard, as well as probable cause, requires a police officer to articulate the reason she conducted a motor vehicle stop.
Whether it’s a brief investigatory stop or a stop to effectuate the issuance of a citation for a motor vehicle violation—no one questions that the law requires an articulable reason for the stop.
With that in mind, it does in fact appear that Pennsylvania law permits a police officer to pull over a vehicle for any reason, or no reason at all, investigate the driver for intoxication, conduct sobriety tests and ask that driver to submit to a blood test or breathalyzer. If that driver refuses, her license is suspended.
A license suspension is a civil matter—but was it ever contemplated that a police officer could randomly pull over drivers, conclude they may be intoxicated and have imposed a “penalty” for failing to cooperate.
In  Zwibel v. Department of Transportation, Bureau of Driver Licensing, 832 A.2d 599, (Pa.Cmwlth.2003), the Commonwealth Court established what the Department of Transportation must prove at a statutory appeal hearing. First, that the licensee was arrested for driving while under the influence by a police officer who had reasonable grounds to believe that the licensee was operating a vehicle while under the influence of alcohol or a controlled substance; two, the driver was asked to submit to a chemical test; three, he refused; and four, he was warned that a refusal would result in a license suspension.
In a driver’s license appeal hearing an unlawful arrest in a criminal proceeding is not admissible. The Pennsylvania Supreme Court held in Department of Transportation v. Wysocki, 535 A.2d 77 (Pa. 1987), “although the fact that the initial stop may have been improper would not necessarily prevent a suspension of license where there was a subsequent refusal to submit to a breathalyzer test, such a suspension will not be allowed if the officer’s request was not supported by reasonable grounds for the officer to have believed that the person was under the influence of alcohol.”
The standard of reasonable grounds under the Implied Consent Law is not very demanding, and does not rise to the level of probable cause required for a criminal prosecution. Rather, the test for reasonable grounds is whether a person in the position of a police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that a motorist was operating a vehicle while under the influence of alcohol.
To determine whether the officer had reasonable grounds to conclude that the licensee was operating a vehicle under the influence, a court must consider the totality of the circumstances.
In Sisinni v. Department of Transportation Bureau of Driver Licensing, 31 A.3d 1254 (Pa. Cmwlth. 2011), the Commonwealth Court determined there was no set list of behaviors or conditions that a person must exhibit for an officer to have reasonable grounds for making an arrest. However, the court provides a series of examples that relate to outward manifestations of intoxication such as staggering, swaying, falling down, belligerent, slurred speech, uncooperative behavior and the odor of alcohol. None of the examples relate to the operation of a vehicle or reasonable grounds for stopping a motor vehicle.
In Kachurak v. Department of Transportation Bureau of Driver Licensing, 913 A.2d 982 (Pa. Cmwlth. 2006), the Commonwealth Court determined, “It is well settled that “’ an officer may acquire reasonable grounds to believe that a licensee was driving under the influence of alcohol at any time during the course of interaction between the officer and the licensee.”’
Wysocki does not hold that reasonable grounds must be formed prior to the traffic stop as a prerequisite to a valid license suspension. The case law consistently supports that reasonable grounds are determined by interacting with the vehicle operator. As a result, there are no restrictions or limitations on the basis for stopping a vehicle.
The question is, how was the interaction brought about? Did the police officer have a basis to bring about the interaction? Obviously the officer cannot engage the individual while both the individual and the officer’s vehicle are moving. The officer must bring the vehicle to a stop to engage the driver or occupants.
What is the basis for stopping the vehicle? Should a police officer be required to articulate reasonable grounds for stopping the vehicle? It doesn’t have to be probable cause or reasonable suspicion—both criminal degrees of suspicion—but the reason for the stop should be part of the equation.
The reason for the stop must be more than arbitrary or random. Otherwise, as Justice Nicholas P. Papadakos noted in a dissent in Wysocki, “a police officer can stop anyone, anyplace, anytime of the day or night for no articulable reason at all, and then form a reasonable” ground that the vehicle operator was driving while intoxicated.
That is not justice, and the Pennsylvania Supreme Court needs to address the matter posthaste.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. 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 www.mattmangino.com and follow him on Twitter @MatthewTMangino). Contact him via email at matthewmangino@aol.com.
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Sunday, March 8, 2020

Mangino appears WFMJ-TV Weekend Today

My appearance on WFMJ-TV Weekend Today discussing isolation 
and quarantine. To watch the interview CLICK HERE

Federal judge sharply criticized AG Barr on handling 0f Mueller Report

A federal judge sharply criticized Attorney General William P. Barr’s handling of the report by the special counsel, Robert S. Mueller III, saying that Mr. Barr put forward a “distorted” and “misleading” account of its findings and lacked credibility on the topic, reported the New York Times.
Mr. Barr could not be trusted, Judge Reggie B. Walton said, citing “inconsistencies” between the attorney general’s statements about the report when it was secret and its actual contents that turned out to be more damaging to President Trump. Mr. Barr’s “lack of candor” called into question his “credibility and, in turn, the department’s” assurances to the court, Judge Walton said.
The judge ordered the Justice Department to privately show him the portions of the report that were censored in the publicly released version so he could independently verify the justifications for those redactions. The ruling came in a Freedom of Information Act lawsuit seeking a full-text version of the report.
The differences between the report and Mr. Barr’s description of it “cause the court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary,” wrote Judge Walton, an appointee of President George W. Bush.
Mr. Barr’s public rollout of the Mueller report has been widely criticized. Still, it was striking to see a Republican-appointed federal judge scathingly dissect Mr. Barr’s conduct in a formal judicial ruling and declare that the sitting attorney general had so deceived the American people that he could not trust assertions made by a Justice Department under Mr. Barr’s control.
A department spokeswoman had no immediate comment. The lawsuit centers on Freedom of Information requests by the Electronic Privacy Information Center and by Jason Leopold, a BuzzFeed News reporter.
Judge Walton’s decision focuses on the period last spring between the delivery of the Mueller report to the attorney general, his publicly issued summary of it two days later that drew widespread condemnation and the release of the report itself a month later that revealed several discrepancies between the documents.
Among those Judge Walton cited: Mr. Barr’s obfuscation about the scope of the links that investigators found between the Trump campaign and Russia, and how the report documented numerous episodes that appear to meet the criteria for obstruction of justice, echoing the complaints of many critics of Mr. Barr’s summary of the report.
The attorney general issued an initial four-page letter in March 2019 — two days after receiving the 381-page Mueller report — that purported to summarize its principal conclusions. But within days, Mr. Mueller sent letters to Mr. Barr protesting that he had distorted its findings and asking him to swiftly release the report’s own summaries. Instead, Mr. Barr made the report public only weeks later, after a fuller review to black out sensitive material.
Among the issues Judge Walton flagged: Mr. Barr declared that the special counsel had not found that the Trump campaign had conspired or coordinated with Russia in its efforts to influence the 2016 presidential election, and left it at that.
But while Mr. Mueller did conclude that he found insufficient evidence to charge any Trump associates with conspiring with the Russians, Mr. Barr omitted that the special counsel had identified multiple contacts between Trump campaign officials and people with ties to the Russian government and that the campaign expected to benefit from Moscow’s interference.
Judge Walton also wrote that the special counsel “only concluded” that the investigation did not establish that the contacts rose to “coordination” because Mr. Mueller interpreted that term narrowly, requiring, in the report’s words, agreement that is “more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.”
In addition, Mr. Barr told the public in March that Mr. Mueller had made no decision about whether the president obstructed justice, then pronounced Mr. Trump cleared of those suspicions.
But Mr. Barr “failed to disclose to the American public,” Judge Walton wrote, that Mr. Mueller had explained that it would be inappropriate to make a judgment while the president was still in office about whether he committed obstruction crimes. The report also said that if the evidence had cleared Mr. Trump, Mr. Mueller would have said so, but he was unable to exonerate him.
“The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller report, causes the court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller report — a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller report,” Judge Walton wrote. 
The judge also blasted similar “inconsistencies” in public comments made by Mr. Barr hours before he released the redacted version of the report in April.
Because of that pattern, Judge Walton wrote, he could not look away from the fact that the portions of the Mueller report that the Justice Department was withholding in the Freedom of Information Act case mirrored the deletions made under Mr. Barr’s guidance in the version of the report released in April.
That echoing, he wrote, causes “the court to question whether the redactions are self-serving and were made to support, or at the very least to not undermine, Attorney General Barr’s public statements and whether the department engaged in post-hoc rationalization to justify Attorney General Barr’s positions.”
Appointed to the Federal District Court bench in Washington in 2001, Judge Walton has presided over a variety of high-profile cases, including the perjury trial of the former baseball pitcher Roger Clemens and the trial of I. Lewis Libby Jr., the onetime chief of staff to Vice President Dick Cheney who was convicted of lying in connection with the leak of the identity of a C.I.A. operative. Mr. Trump pardoned Mr. Libby in 2018.
A former prosecutor who handled drug and street crime cases, Judge Walton is known for handing down tough sentences and for being careful and methodical. He also once broke up a street brawl near the courthouse.
The Mueller ruling was not the first time that Judge Walton had criticized the actions of the Barr Justice Department. Last month, he unsealed the transcript of a September closed-door meeting with prosecutors about whether and when the department was going to charge Andrew G. McCabe, the former acting F.B.I. director whom Mr. Trump has vilified for his role in the Russia case, in connection with a leak investigation.
Noting in that September hearing that prosecutors had said to him weeks earlier that a decision about charging Mr. McCabe could come “literally within days,” Judge Walton chastised them for stringing along Mr. McCabe and noted the president’s comments about Mr. McCabe with disapproval, saying they created the appearance of a “banana republic.”
 “I don’t think people like the fact that you got somebody at the top basically trying to dictate whether somebody should be prosecuted,” the judge said, adding that even if Mr. Trump’s moves were “not influencing the ultimate decision, I think there are a lot of people on the outside who perceive that there is undue, inappropriate pressure being brought to bear.”
Nevertheless, the Justice Department continued to keep Mr. McCabe hanging for another five months, announcing only last month that he would not be charged. Hours later, Judge Walton unsealed the transcript of the closed September hearing, which was part of a Freedom of Information lawsuit filed by the liberal watchdog group Citizens for Responsibility and Ethics in Washington.
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Saturday, March 7, 2020

GateHouse: Someone is checking out your jeans and it’s not what you think

Matthew T. Mangino
GateHouse Media
March 6, 2020
The FBI has apprehended and convicted suspects in criminal cases by analyzing light and dark patches - wear marks - along the seams of the suspects’ blue jeans.
and convicted suspects in criminal cases by analyzing light and dark patches - wear marks - along the seams of the suspects’ blue jeans.
A leading proponent of blue jean analysis is Richard W. Vorder Bruegge of the FBI’s Forensic Audio, Video and Image Analysis Unit in Quantico, Virginia.
According to ProPublica, an independent group of investigative journalists, Vorder Bruegge wrote an article in the 1999 Journal of Forensic Sciences on the photographic analysis of denim “trousers” arguing that wear marks create, effectively, a barcode that is unique on every pair.
“Every piece of clothing that you own is going to undergo abuse during your lifetime,” Vorder Bruegge said. “If you’re a kid, maybe you’re sliding down hills and getting a lot of scrapes on the jeans. Or maybe your jeans get washed and ironed. But you’re rubbing them back and forth, and the blue dye is abraded.”
Apparently, Vorder Bruegge believes that those markings can be identified to the exclusion of nearly every other pair of jeans on earth.
Last year, ProPublica conducted an investigation that revealed FBI examiners have tied defendants to crimes in thousands of cases by using crime scene photographs in unproven ways and, at times, have given jurors baseless statistics to say the risk of error in their analyses was extremely low.
As a result, Hany Farid, a University of California, Berkeley, computer science professor and leading forensic image analyst, and Sophie Nightingale, a postdoctoral researcher in image science, tested the FBI’s method and found several serious flaws.
In 1998, the FBI’s Vorder Bruegge explained continued washing of jeans causes the dye to rub off and exposes the white cotton underneath. Jeans fade in a unique pattern, he said, because in their manufacture, the motion of pulling the jeans through a machine causes inconsistent bumps along the seams.
Nightingale and Farid sought to test photographic pattern analysis, involving matching crime scene photographs with wear on blue jeans. The researchers bought 100 pairs of used blue jeans from thrift stores and second-hand shops. They photographed the jeans and had images supplied of more than 100 additional pairs of jeans.
The researchers took photographs of the jeans under various conditions and found a substantial error rate. According to Ars Technica, “this means the technique of matching up jeans is likely to be pretty hit and miss - not catching actual similarities a lot of the time and possibly throwing up a high rate of false alarms. And that’s under controlled experimental conditions using high-quality images and jeans laid out nice and flat, not grainy security footage showing jeans being worn.”
Farid told ProPublic, “If you’re willing to tolerate that only one in four times this will be useful, OK, fine, use the analysis.”
Last fall, Washington Post Columnist Radley Balko, cited a 1999 Chicago Tribune article to explain the dubious process of blue jean matching. He also suggested that part of the blame lies with his colleague’s lack of skepticism - taking the claims of forensic analysts at face value.
Brandon Garrett, a Duke University law professor who studies the reliability of forensic science, told ProPublica, “This is one of many studies uncovering non-trivial error rates for forensic techniques,” he continued, “Any lawyer or any judge in a case involving this discipline should, at minimum, hear about the error rates. Many people assume that these techniques are perfect.”
Judges, lawyers and jurors cannot blindly accept that a new investigative technique lives up to the hype. Just as with journalists, a heavy dose of skepticism is the best practice.
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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