Monday, August 31, 2020

Federal government executes fifth inmate in six weeks

The 12th Execution of 2020

Keith Dwayne Nelson was executed On August 29, 20202 at 4:32 p.m., according to the Bureau of Prisons, marking the fifth federal execution in the past six weeks, reported CNN.

The Justice Department reinstated federal executions in mid-July after a 17-year hiatus.

Nelson, 45, had been sentenced to death for the 1999 kidnapping, sexual abuse and subsequent killing of a 10-year-old girl, Pamela Butler, he abducted while she was rollerblading in front of her Kansas home. Nelson confessed to raping Butler and strangling her with a wire.

Nelson's attorneys had filed a flurry of last-minute legal challenges to his execution, including arguments that the use of the drug pentobarbital, used in every federal lethal injection this summer, violated the Food, Drug and Cosmetics Act. The appeals court in Washington, DC, ultimately ordered his execution must move forward despite his claim. They did not appeal to the Supreme Court.

Friday's execution of Keith Dwayne Nelson will move forward after decision from appeals court

His attorneys, Dale Baich and Jen Moreno, said that "the execution of Keith Nelson did not make the world a safer place. Over the years, we have come to know Keith as someone who was different than the person who committed the horrible crime to which he admitted and pled guilty to in 2001. We saw his humanity, his compassion, and his sense of humor."

When a prison official standing over Nelson asked him if he had any last words, he was met with silence. Nelson did not utter a word, grunt or nod. The official waited for about 15 seconds, his eyes fixed on Nelson, then turned away and began the execution procedures. Nelson was pronounced dead about nine minutes after the injection began.

To read more CLICK HERE

Sunday, August 30, 2020

Qualified immunity applied unevenly nationwide

 A Reuters investigation of qualified immunity reveals a new aspect to the problem: Across the United States, judges apply the doctrine unevenly. A plaintiff’s chances of overcoming a cop’s immunity defense depend largely on where the lawsuit is filed.

That finding, lawyers told Reuters, adds to the evidence that the doctrine is unfair. “It’s essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas,” said Paul Hughes, a prominent civil rights attorney who frequently argues before the U.S. Supreme Court.

Reuters examined 529 federal appeals court decisions and another 435 federal district court rulings.

Among the takeaways:

  • On appeal, plaintiffs fared worst in the 5th U.S. Circuit Court of Appeals, which encompasses Louisiana, Mississippi and Texas. There, where judges habitually follow precedents that favor police, the appellate court granted 64% of police requests for immunity in excessive force cases from 2005 to 2019.
  • By contrast, the 9th Circuit — covering 11 Western states and territories, including California — has set a higher bar for police. Appellate judges there granted just 42% of police requests for immunity in excessive force cases over the same years.
  • The regional disparities also exist in federal district courts, where excessive force lawsuits are heard and which must follow precedents set by their respective appellate courts. In an analysis of 435 federal district court rulings in excessive force cases from 2014 to 2018 in California and Texas, America’s two most populous states, Reuters found that judges in Texas granted immunity to police at nearly twice the rate of California judges — 59% of cases, compared to 34%.
  • A plaintiff’s chances of success are far higher in California. A plaintiff in California who was armed in an encounter with police is more likely to overcome a qualified immunity defense than is an unarmed plaintiff in Texas.
  • A 50-year-old creation of the Supreme Court, qualified immunity is meant to protect government employees from frivolous litigation. But as Reuters reported in May, just two weeks before Floyd’s deadly police encounter, courts have been granting cops immunity at increasing rates — even when judges found the police behavior so egregious that it violated a plaintiff’s civil rights.
  • Police won 57% of cases in which they claimed immunity from 2017 through 2019, a Reuters review of appeals court cases showed. That’s up sharply from the three years ending in 2007, when they won 44% of the time. The increase is thanks largely to Supreme Court guidance that favored police.

Amid protests in the wake of George Floyd’s death, expectations ran high that the Supreme Court would move to restrict or end qualified immunity by taking up at least one of several petitions to hear cases backed by opponents of the doctrine. But in early June, it rejected those petitions.

Congress moved swiftly to draft police reform measures, but legislative proposals have stalled, including some that would have ended qualified immunity. President Donald Trump’s White House and some Republicans in Congress called eliminating qualified immunity for police a “non-starter” on the grounds that it would deter police officers from doing their jobs properly.

To read more CLICK HERE


Saturday, August 29, 2020

GateHouse: The slippery slope of unchecked authority

Matthew T. Mangino
GateHouse Media
August 27, 2020

Earlier this year the U.S. Office of Special Counsel (OSC) entered into a settlement agreement with an employee of the Department of Energy (DOE) who violated the Hatch Act.

The employee had given a tour of a nuclear power plant to a candidate for Congress. OSC deemed the employee’s actions to be a “flagrant” Hatch Act violation because three days before she gave the tour, she received a reminder that the tour could violate the Hatch Act. Information and photographs from the tour were then used to further the candidate’s campaign.

The Hatch Act, a federal law passed in 1939, and amended as recently as 2012, limits certain political activities of federal employees, as well as some state and local government employees who work in connection with federally funded programs. ​

The Act prohibits federal employees from engaging in most political activity inside federal buildings or while on duty. The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are promoted based on merit and not based on political affiliation.​​​​

Contrast the DOE employee’s conduct with the glitzy Republican National Convention on the lawn of the White House complete with military guard, a naturalization ceremony and an act of clemency by the president. Not to mention speeches by cabinet members and a number of other federal officials.

During the convention, Secretary of State Mike Pompeo delivered a speech in Jerusalem while on a diplomatic mission for the United States government. Pompeo praised President Donald Trump’s foreign policy. He also celebrated the relocation of the U.S. embassy from Tel Aviv to Jerusalem - a talking point of the Trump Campaign.

This summer, Pompeo and top State Department officials sent memos to employees reminding them they must be careful to adhere to the Hatch Act. Another memo said, “Senate-confirmed Presidential appointees may not even attend a political party convention or convention-related event.”

“This video (of Pompeo) is an egregious violation of the Hatch Act,” wrote Claire O. Finkelstein and Richard W. Painter, the two law school professors who have filed a Hatch Act complaint over the speech.

Last year, soon departing White House special adviser Kellyanne Conway was cited by the special counsel for violating the Hatch Act. The Special Counsel recommended she be fired. She wasn’t fired and didn’t resign. What she did was defiantly tell reporters, “Blah, blah, blah ... If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”

Disputes over violations of the Hatch Act end up before the Merit Systems Protection Board - an independent agency created by Congress in the wake of Watergate to provide independent oversight of Hatch Act investigations.

However, Steve Vladeck, a professor at the University of Texas Law School, wrote that the board currently lacks a quorum - because the Senate has not acted to confirm any of Trump’s nominees. As a result, the board has amassed a backlog of nearly 3,000 cases. Vladeck added, the “board does not even have jurisdiction over presidential appointees.”

Just two days after acting Department of Homeland Security (DHS) chief Chad Wolf appeared at the Republican National Convention, DHS employees were reminded through an agency wide email not to engage in “partisan political events.”

The agency notified staff that they are prohibited from “conducting any political activity while on duty or while in a government room, building, vehicle” or participating in political activity “wearing a DHS badge or insignia, or while using government equipment.”

When confronted with the seemingly obvious violations of the Hatch Act at the Republican National Convention White House chief of staff Mark Meadows said that “nobody outside of the Beltway really cares.”

Well they should. Every time the Trump Administration flouts laws, rules, regulations or norms - while those who should care look the other way - it’s another step toward autocracy. When speaking of Trump’s conduct we often hear the rejoinder, “No one is above the law.” If no one is enforcing the law - Trump is not only above the law, he has unchecked authority.

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

To visit the column CLICK HERE


Friday, August 28, 2020

John Oliver takes on the power of Prosecutors

CLICK HERE to watch the segment.

John Oliver’s Last Week Tonight has untangled some of the knottier aspects of the criminal justice system in the past, including the public defender system, reported Slate. The show looked to the other side of the courtroom, at a group that often has an outsize amount of power over a defendant’s fate: prosecutors. Just as we take phrases like “user agreement update” or “Tyler Perry presents” for granted, Oliver argues that “prosecutors will decide” has become such a common refrain in local news stories that you may not seriously consider what it means, even though it’s actually pretty important.

Not only can prosecutors determine whether to bring charges against a person, they can also pressure even innocent people to accept plea bargains to avoid the prospect of a harsher sentence from a judge or jury if wrongfully convicted. And if a defendant does choose to go to trial instead, prosecutors have a number of tactics to influence the outcome, including manipulating jury selection and withholding evidence that might help the defendant’s case from the other side.

Thursday, August 27, 2020

Federal government executes only Native American on death row

The 11th Execution of 2020 

The Justice Department executed the only Native American man on federal death row on August 26, 2020, against the wishes of Navajo leaders and hundreds of Native American citizens who called for President Trump to spare his life, reported the New York Times.

Lezmond Mitchell, 38, was put to death by lethal injection at the federal penitentiary in Terre Haute, Ind. He was declared dead at 6:29 p.m., according to the Bureau of Prisons.

He had been sentenced to death for the 2001 murder of a grandmother, Alyce Slim, and her 9-year-old granddaughter, Tiffany Lee. As a member of the Navajo Nation, he was the first Native American man to be executed by the federal government in recent history, in part because federal law allows tribes to opt in or out of capital punishment for certain crimes.

Moments before his death, a prison official asked Mr. Mitchell if he had any last words for the family members of his victims and witnesses, according to a report from a journalist in attendance. Mr. Mitchell responded nonchalantly, “No, I’m good.”

Mr. Mitchell’s supporters claimed that the Justice Department obtained his sentence only by exploiting a loophole in the law and disregarding tribal sovereignty.

In the weeks before his death, leaders of the Navajo Nation implored Mr. Trump to commute his sentence to life in prison. Myron Lizer, the tribe’s vice president, spoke at the Republican National Convention on Tuesday night in support of Mr. Trump’s re-election bid; Jonathan Nez, its president, spoke at the Democratic National Convention last week.

Mr. Mitchell’s execution was the fourth since the Trump administration resurrected federal capital punishment after a hiatus of nearly two decades. The fifth man is scheduled to be executed on Friday.

The Federal Death Penalty Act of 1994 allowed tribes to opt in to the death penalty, and nearly all — including the Navajo Nation — have opted out. But Mr. Mitchell was convicted of a federal crime to which the tribal option did not apply, “carjacking resulting in death.”

Around the time of Mr. Mitchell’s sentencing, Marlene Slim, the mother and daughter of the victims, testified against the death penalty. However, lawyers representing the victims’ relatives said in a statement that the family now supported the government’s efforts to put Mr. Mitchell to death.

“Mr. Mitchell’s attorneys or advocates and the Navajo Nation do not speak for these victims and have not accurately expressed their wishes,” the statement read.

Late Tuesday night, the Supreme Court denied Mr. Mitchell’s pleas to stay his lethal injection, effectively paving the way for his execution on Wednesday.

In 2001, Mr. Mitchell and three others plotted to carjack a vehicle to use in an armed robbery. Mr. Mitchell and Johnny Orsinger, his 16-year-old accomplice, killed Alyce Slim and her granddaughter, before decapitating them and disposing of the bodies in a shallow hole. Three days later, Mr. Mitchell and two others robbed a trading post on the Navajo reservation, using Ms. Slim’s pickup truck.

Mr. Orsinger, who was ineligible for the death penalty given his age, was sentenced to life in prison.

Mr. Mitchell’s lawyers raised concerns about his case that stemmed from his race. Mr. Mitchell was held in tribal jail for 25 days and interrogated by F.B.I. agents without a lawyer. He was brought before a federal magistrate judge only after he confessed to the crimes. Additionally, his jury included only one member of the Navajo Nation.

Even as a federal appeals court denied his request to delay his execution, judges expressed concern about the imposition of the death penalty.

To read more CLICK HERE


Wednesday, August 26, 2020

Why is Portland protesting? 40 people killed by police since 2003

Against the backdrop of current demands for far-reaching change, The Oregonian/OregonLive analyzed fatal shootings by Portland police since 2003, reported The Crime Report.

The police have shot and killed 40 people.

They were suicidal or in the throes of an emotional crisis. Some people were trying to flee police. In other cases, officers were responding to calls about break-ins, robberies or assaults. Most of those killed had guns or knives. A handful had replica pistols.

Those fatally shot were disproportionately Black.

At least half of the cases involved people with mental illness.

None of the more than five-dozen officers who pulled a trigger in the shootings were ultimately disciplined or indicted by a grand jury, despite attempts to fire or suspend some of them.

Those stubborn and troubling patterns are now spurring the thousands of people who have taken to the streets in Portland in the last two months, saying the names of Black Oregonians killed by police and decrying a criminal justice system that too often harms people of color.

To read more CLICK HERE

Tuesday, August 25, 2020

California Supreme Court overturns death sentence for Scott Peterson

The California Supreme Court upheld the conviction but overturned the 2005 death sentence for Scott Peterson in the slaying of his pregnant wife, and said prosecutors may try again for the same sentence if they wish in the case that attracted worldwide attention, reported The Mercury News.

Laci Peterson, 27, was eight months pregnant with their unborn son, Connor, when she was killed. Investigators said that on Christmas Eve 2002, Peterson dumped their bodies from his fishing boat into San Francisco Bay, where they surfaced months later.

“Peterson contends his trial was flawed for multiple reasons, beginning with the unusual amount of pretrial publicity that surrounded the case.,” the court said. “We reject Peterson’s claim that he received an unfair trial as to guilt and thus affirm his convictions for murder.”

But the justices said the trial judge “made a series of clear and significant errors in jury selection that, under long-standing United States Supreme Court precedent, undermined Peterson’s right to an impartial jury at the penalty phase.”

It agreed with his argument that potential jurors were improperly dismissed from the jury pool after saying they personally disagreed with the death penalty but would be willing to follow the law and impose it.

“While a court may dismiss a prospective juror as unqualified to sit on a capital case if the juror’s views on capital punishment would substantially impair his or her ability to follow the law, a juror may not be dismissed merely because he or she has expressed opposition to the death penalty as a general matter,” the justices said in a unanimous decision.

They rejected Peterson’s argument that he couldn’t get a fair trial because of the widespread publicity that followed, although the proceedings were moved nearly 90 miles away from his Central Valley home of Modesto to San Mateo County, south of San Francisco.

Stanislaus County District Attorney Birgit Fladager did not immediately say if she would again seek the death penalty.

Peterson, who is now 47, was convicted of first-degree murder in the death of his wife and the second-degree murder of their unborn son.

“We are grateful for the California Supreme Court’s unanimous recognition that if the state wishes to put someone to death, it must proceed to trial only with a fairly selected jury,” Cliff Gardner, Peterson’s appellate attorney, said in an email.

His well-known trial attorney, Mark Geragos, said he objected at the time to what he said was “clear error” in jury selection.

Geragos said he does not expect prosecutors to retry the penalty phase. “Frankly, I think the only reason that they sought the death penalty was to get a guilt-prone jury panel,” he said.

California has not executed anyone since 2006 because of legal challenges to the way it would carry out the death penalty, and Democratic Gov. Gavin Newsom has a moratorium on executions for as long as he is governor.

That moratorium helped lead other California prosecutors to negotiate a plea deal in the more recent high-profile Golden State Killer case. Former police officer Joseph DeAngelo was sentenced to multiple life terms on Friday in exchange for his guilty pleas to 13 murders and 13 rape-related charges.

To read more CLICK HERE


Monday, August 24, 2020

Business interruption suit due to COVID-19 permitted to move forward against insurance company

A Missouri federal judge allowed a lawsuit to go forward against an insurance company for a coronavirus pandemic business interruption claim, reported

U.S. District Judge Stephen Bough of the Western District of Missouri denied Cincinnati Insurance Co.’s motion to dismiss a complaint filed by Studio 417, which operates hair salons in Springfield, Missouri, along with a group of salons and restaurants there and in Kansas City. Bough ruled Aug. 12 that the 54-page complaint with 253 separate allegations adequately states claims that can be litigated.

Bill Cash of Levin Papantonio Thomas Mitchell Rafferty Proctor in Pensacola, Florida said hr tried and failed to survive a motion to dismiss in a couple of similar cases, but sees this one as a hopeful sign for hundreds of other clients.

“These cases could come out differently in different states, but we are encouraged,” Cash said. “We are heartened by this decision.”

The prevailing legal team on the Missouri case certainly shares that sentiment.

“This is a significant early win in our case against Cincinnati Insurance Co.,” said Brandon Boulware of Boulware Law in Kansas City, Missouri. “And because the key language in the Cincinnati policy is similar to language in policies offered by other insurance companies, the court’s decision in our case will likely have a rippling effect in other lawsuits filed against other carriers.”

He represents the businesses along with Jeremy Suhr of Boulware Law, Jack Hyde, Tom Rottinghaus and Tyler Hudson of Wagstaff & Cartmell and Todd Johnson of Votava Nantz & Johnson, all in Kansas City.

“Our case, like others on file, seeks to compel the carrier to abide by the terms of the insurance policies that the carrier itself drafted,” Boulware said. “It is a well-established rule in insurance law that where a policy is ambiguous, such ambiguity is construed against the carrier and in favor of coverage. Our position is that the Cincinnati policy is not ambiguous and provides coverage, but even if ambiguity is found, that ambiguity benefits the policyholders.” 

The businesses purchased all-risk policies, which means anything not expressly excluded is covered, the judge said.

“Plaintiffs seek coverage under the policies for losses caused by the coronavirus (‘COVID-19′) pandemic. Plaintiffs allege that over the last several months, it is likely that customers, employees, and/or other visitors to the insured properties were infected with COVID-19 and thereby infected the insured properties with the virus,” Bough said. “Plaintiffs allege that COVID-19 ‘is a physical substance,’ that it ‘live[s] on’ and is ‘active on inert physical surfaces,’ and is ‘emitted into the air.’”

The judge said the businesses also have alleged that the presence of COVID-19 “renders physical property in their vicinity unsafe and unusable,” and that they “were forced to suspend or reduce business at their covered premises.”

Of course, he noted, in response to the COVID-19 pandemic, “civil authorities in Missouri and Kansas issued orders requiring the suspension of business at various establishments,” including those owned by the plaintiffs. Those orders “have required and continue to require” ceasing or significantly reducing operations and access. The businesses claim the virus and the closure orders “caused a direct physical loss or direct physical damage to their premises,” the judge said.

“The court finds that plaintiffs have adequately stated a claim for direct physical loss,” Bough said. He added that because the policies do not define a direct “physical loss” he must “rely on the plain and ordinary meaning of the phrase.”

To read more CLICK HERE


Sunday, August 23, 2020

Child-abuse pediatricians often conflicted

 Child abuse is a pervasive and complex problem: Few children or abusers report harm themselves, so it’s up to other authorities, such as medical personnel and teachers, or bystanders, such as neighbors, to report suspected abuse. Some 3.5 million children in America were reported as being suspected victims of child abuse in 2018, the most recent year for which data are available; about 680,000 were ultimately determined by authorities to have been abused or neglected.

When suspected abuse has a medical component, like an injury or a bruise, child-abuse pediatricians step in to examine injuries, rule out causes other than abuse, such as a disease, and consider the family’s explanations, reported The Marshall Project. They are trained in what types of fractures generally stem from abuse, and what bleeding patterns in the brain can be caused by shaking. With an abuse expert on staff, the thinking goes, regular pediatricians don’t need to worry about overreacting to an innocent bruise, or missing warning signs because parents are convincing liars. Child-welfare workers also rely on this expertise as they consider removing children from their homes. The American Board of Pediatrics certified the first group of child-abuse pediatricians in 2009; there are now 344 such specialists nationally, stationed in all but three states.

A review of dozens of cases, including thousands of pages of medical records, child-welfare agencies’ records, and testimony, along with court decisions, contracts, and emails from child-abuse pediatricians, shows that these doctors can have near-unilateral power in labeling abuse—even though their conclusions are sometimes at odds with the opinions of specialists like orthopedists and hematologists. Their judgments are echoed, amplified, and often unblinkingly accepted by investigators. Indeed, instances in which medical professionals make reports to child-welfare agencies are 40 percent more likely to be substantiated—meaning the agencies found that abuse occurred—than reports by nonmedical professionals, according to a Marshall Project analysis of the National Data Archive on Child Abuse and Neglect.

But child-abuse pediatricians may have a conflicted perspective. Many are paid in part by child-welfare departments and work directly with state lawyers in cases where the state is removing children from homes, and end up shaping arguments against parents, testifying in court, and working within a system that parents don’t understand is stacked against them. This is particularly problematic because child-removal cases play out in family court, where the state’s burden of proof is low and parents have limited legal rights.

 “The first time I started to hear what parents are going through, I was shocked,” Maxine Eichner, a family-law professor at the University of North Carolina School of Law, told me. “There should be a role for child-abuse pediatricians,” she said, but many are “going well beyond their medical expertise and wielding the power of the diagnosis in ways that are really harmful for children and families.”

To read more CLICK HERE

Saturday, August 22, 2020

GateHouse: Border Wall brings down Trump insider

Matthew T. Mangino
GateHouse Media
August 21, 2020

You’ve probably never heard of Brian Kolfage. He was the founder of “We Build the Wall,” a grassroots effort to raise money, through the internet platform Gofundme, to build a wall on the U.S-Mexico border.

Within the last week, he made news when he tweeted, “Because @Gofundme supports the racist attacks by #blackLivesMatter, @WeBuildtheWall has officially deleted its campaign from their site and we are moving to @FundRzr We had the largest Gofundme campaign in history.”

While Kolfage fumed at Black Lives Matter for their “racism” he boasted about his efforts to keep latinx out of America by producing the largest fundraiser in internet history.

However, that wasn’t the biggest story of the week for Kolfage and his associates. In fact, Kolfage wasn’t even the biggest story in his own big story. Former President Donald Trump campaign CEO and White House chief strategist Steve Bannon was indicted in New York on fraud charges related to the We Build the Wall campaign.

Manhattan federal prosecutors and the U.S. Postal Inspection Service allege that Bannon, Kolfage and two others “received hundreds of thousands of dollars in donor funds from We Build the Wall, which they each used in a manner inconsistent with the organization’s public representations.”

Bannon is another in a line of former Trump advisors that have ended up on the wrong side of the law. Bannon was brought on as the chief executive officer of President Trump’s presidential campaign after a staff shakeup just months before the election.

He left his job at Breitbart News, an agency Bannon described as ”(T)he platform for the alt-right,” to help refocus Trump’s campaign message.

Bannon pushed the Trump campaign, and later the administration, toward race-baiting through the buzz words of crime, immigration and foreign competition. According to former newspaper editor Tom Murse, writing on, “Under his stewardship, Breitbart has emerged as the leading source for the extreme views of a vocal minority who peddle bigotry and promote hate.”

Bannon later infused racism, hate and fear mongering into the first seven months of the Trump administration as chief White House strategist.

Bannon was a strong proponent of the border wall. After leaving the White House he latched on to We Build the Wall seemingly with the intent of being an altruistic “volunteer” leader of a campaign to fulfill his vision of halting illegal immigration and helping his former boss fulfill his campaign promise.

We have now learned that was not exactly what Bannon had in mind. Bannon and his co-conspirators started in December 2018 to defraud hundreds of thousands of donors from the We Build the Wall campaign that raised more than $25 million.

Part of the conspiracy to induce donors was Kolfage repeatedly assuring the public that he would “not take a penny in salary or compensation” and that “100% of the funds raised ... will be used in the execution of our mission and purpose” and Bannon publicly stated, “we’re a volunteer organization.”

It appears that Bannon and Kolfage lied. In truth, the two of them and their co-conspirators allegedly took hundreds of thousands of dollars in donor funds. The U.S. Attorney’s office said in a statement, Kolfage took for his personal use more than $350,000 in funds. Bannon funneled to a non-profit organization under his control over $1 million - much of it used for personal expenses.

The conspirators set up non-profits and shell corporations to conceal the fraud. They furthered the fraud by using fake invoices and sham “vendor” arrangements to ensure, as Kolfage noted in a text message, that his pay arrangement remained “confidential” and kept on a “need-to-know” basis.

Inspector-in-Charge Philip R. Bartlett of the New York Field Division of the United States Postal Inspection Service said in a statement, “This case should serve as a warning to other fraudsters that no one is above the law, not even ... a millionaire political strategist.”

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

To visit the column CLICK HERE


Friday, August 21, 2020

John Oliver spot-on in examination of jury duty

John Oliver continued his examination into the ways that racism is baked into the criminal justice system in this week’s main segment of Last Week Tonight, turning his attention to everyone’s favorite civic duty. While the right to a trial by a jury of your peers is enshrined in the Sixth Amendment, “the truth is that people of color are routinely excluded,” Oliver said, citing a study from the Journal of Empirical Legal Studies that says that “underrepresentation of the Latino and African-American populations is ubiquitous.” Lack of diversity on juries has far-ranging ramifications, not least because studies show that gaps in the conviction rates between white and Black defendants were eliminated when the jury pool included just one Black member.

To watch the clip CLICK HERE

Thursday, August 20, 2020

PA AG Shapiro leads states in suit to block changes at USPS

The attorneys general of Pennsylvania and Washington announced Tuesday that they are leading states suing to block service changes at the U.S. Postal Service, even as the postmaster general reversed himself and said he’d halt some of the changes following a national outcry, reported The Associated Press.

Washington state  Pennsylvania Attorney General Josh Shapiro and Attorney General Bob Ferguson, both Democrats, cited policy changes that include limiting worker overtime and late or extra shifts in the lawsuit announcement, which came a day after several individuals and political candidates sued in New York state to stop the postal service changes.

Federal law requires the Postal Service to go through specific procedures before making changes that affect nationwide service, including a review by the Postal Regulatory Commission and a public comment period.

Postmaster General Louis DeJoy, a Republican donor with no prior postal management experience, did not follow those procedures, the attorneys general said.

“What’s going on right now is nothing less than a full-on assault by this administration on the U.S. Postal Service, an institution that millions of Americans rely on every single day,” Ferguson told a news conference.

DeJoy said Tuesday he would suspend the closure of mail processing facilities, retail hours would not be cut and overtime would be allowed. Still, Shapiro and Ferguson said they would keep the lawsuit active to make sure the promises are kept.

“We need to see binding action to reverse these changes,” Shapiro said.

While much of the outcry has focused on the ability of the postal service to deliver mail-in ballots in November, Ferguson and Shapiro stressed that slow mail delivery also affects important correspondence and medical prescriptions.

The Veterans Administration fills about 80 percent of its prescriptions by mail and many senior citizens who are not veterans get their medicine by mail, with the coronavirus pandemic driving mailed prescription deliveries higher, Ferguson and Shapiro said.

Ferguson filed his lawsuit in U.S. court in the Eastern District of Washington on Tuesday against President Donald Trump, DeJoy and the postal service. A dozen other states signed on — Colorado, Connecticut, Illinois, Maryland, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Virginia and Wisconsin.

Shapiro said California, Delaware, Massachusetts, Maine and North Carolina were joining Pennsylvania’s case, which will be filed in the coming days in the Eastern District of Pennsylvania. That case names DeJoy and the postal service’s board of governors as defendants.

So far, all of the attorneys general signing onto both cases are Democrats.

To read more CLICK HERE

Wednesday, August 19, 2020

Bipartisan Senate Intelligence Committee concludes Trump's campaign chair worked closely with Russia during 2016 election

 Donald Trump’s 2016 presidential campaign chairman Paul Manafort worked closely with a Russian intelligence officer who may have been involved in the hack and release of Democratic emails during the election, the Senate Intelligence Committee concluded in a bipartisan report released Tuesday.

It’s the furthest U.S. officials have gone in describing Konstantin Kilimnik, a longtime Manafort business associate, as an agent of the Russian government, reported Politico. The disclosure was part of the committee’s fifth and final installment of its investigation of the Kremlin’s interference in the 2016 presidential election.

In particular, the committee’s investigation found that Manafort “represented a grave counterintelligence threat” due to his relationship with Kilimnik and other Russians connected to the country’s intelligence services — a bombshell conclusion that underscores how Russia developed a direct pipeline to the upper echelons of a U.S. presidential campaign.

“Kilimnik quickly became an integral part of Manafort’s operations in Ukraine and Russia,” the report states, adding that the pair “formed a close and lasting relationship that would endure to the 2016 U.S. elections and beyond.”

Tuesday’s report, the product of a three-year bipartisan probe by the committee, focuses on counterintelligence aspects of the U.S. government’s Russia investigation, including allegations that Trump campaign officials coordinated with Russian operatives. It outlines in exhaustive detail the extent of Trump campaign officials’ contacts with Russians, though it stops short of alleging a direct coordination effort.

The committee, which conducted the only bipartisan investigation on Capitol Hill centering on Russia’s 2016 meddling, also raised the possibility that Manafort was personally connected to the “hack-and-leak operations” that targeted Hillary Clinton’s presidential campaign. The committee states that “some evidence suggests Kilimnik may be connected” to the effort, which was helmed by Russia’s GRU, its main military-intelligence directorate. WikiLeaks eventually released the documents obtained in the GRU cyberattack, which included Democratic National Committee emails.

The committee cautioned that Manafort’s personal involvement with the operation is “largely unknown” because investigators were unable to learn the full extent of many of the conversations between Manafort and Kilimnik, which included several in-person meetings, about which “no objective record of their content exists.”

“Kilimnik was in sustained contact with Manafort before, during, and after the GRU cyber and influence operations, but the committee did not obtain reliable, direct evidence that Kilimnik and Manafort discussed the GRU hack-and-leak operation,” the report states.

Kilimnik’s role as a Russian intelligence officer is one of several findings in the 966-page report showing that Trump campaign contacts with Russian intelligence-connected operatives were more extensive than previously known. The report also showed that at least two participants in a June 2016 Trump Tower meeting with Manafort, senior adviser Jared Kushner and Donald Trump Jr. were more deeply tied to Russian intelligence than other reports have indicated.

 “The committee assesses that at least two participants in the June 9, 2016 meeting, [Natalia] Veselnitskaya and Rinat Akhmetshin, have significant connections to the Russian government, including the Russian intelligence services,” the panel concluded. “The connections the committee uncovered, particularly regarding Veselnitskaya, were far more extensive and concerning than what had been publicly known.”

Kilimnik is described as not only aiding the Russian interference effort but working with Manafort and allies in Ukraine to help cover up evidence of Russia’s involvement — and spread false allegations that it was Ukrainians who interfered instead.

Manafort was convicted of a raft of financial crimes in August 2018 and pleaded guilty to additional crimes in August 2019, briefly pledging to cooperate with special counsel Robert Mueller's team before prosecutors accused him of telling additional lies and breaking off the deal. Manafort was sentenced to 7 and ½ years in prison but was released to home confinement amid the coronavirus pandemic after serving 23 months.

Although Mueller’s report described Kilimnik as simply having “ties” to Russian intelligence, the Senate panel said a more probing analysis revealed him to be a Russian intelligence officer carrying out Kremlin-backed influence operations abroad. In a heavily redacted section of the report, the committee delves into its own assessment of Kilimnik, describing an extensive body of evidence, including communications that reveal Kilimnik misleading even close associates about his connections to Russia.

To read more CLICK HERE


Tuesday, August 18, 2020

About 177 recommended pardons await the governor's signature in Pennsylvania

Nearly 200 people have been waiting months for Pennsylvania Governor Tom Wolf to clear their criminal records by signing off on pardons already approved by the state Board of Pardons, reported The Appeal.

Last year, the board, which must vote to recommend each pardon before it can go to the governor for final consideration, approved nearly 300 cases. As of Aug. 11, 177 pardons were still sitting on Wolf’s desk.

“The Governor is under no time constraint in which he must make a final decision on a recommendation for pardon, and takes that time to ensure his complete and thorough review and consideration of each recommendation,” Wolf’s spokesperson Sara Goulet told The Appeal in an email.

Goulet provided no timeline for when Wolf was expected to act on the recommendations.

According to data provided by board secretary Brandon Flood, more than 70 percent of all clemency cases that the board heard in 2019, which includes both commutations and pardons requests, involved nonviolent offenses.

Flood told The Appeal that the cases that are approved by the board for a pardon typically involve drug offenses, retail theft or property crimes, or misdemeanor assault.

Goulet did not provide The Appeal with a list of the convictions associated with the pardons awaiting Wolf’s signature but said they “run the gamut from misdemeanor to felony and do include some violent crimes.”  

“The impact that a conviction has on an individuals’ ability to move forward in life is stunning,” Ryan Hancock, co-founder and board chairperson of the Philadelphia Lawyers for Social Equity, told The Appeal. Most profoundly, he said, it makes it very difficult to get a job—an issue that has a new sense of urgency given the COVID-19 pandemic and Pennsylvania’s double-digit unemployment rate.

According to the Council of State Governments Justice Center, there are nearly 500 collateral consequences of a criminal conviction in Pennsylvania which, by law, either bar people with criminal convictions from doing certain jobs or place significant barriers to employment.

Even beyond those legal barriers, simply having a criminal conviction can make getting a job, or even a job interview, drastically more difficult. A 2003 study by the Harvard sociologist Devah Pager found that having a criminal conviction for a drug offense cut the rate at which white applicants received a call back for a job interview in half and cut the rate for Black applicants by nearly two-thirds.

“Not only have they long served their sentence and paid back their debt to society, but these are individuals who have succeeded despite all the collateral consequences they face every day,” Hancock said. “These are individuals who are just grasping at the opportunity to live like every ordinary citizen.”

The effects of a pardon go beyond just the individual who receives one.

A recent study by the New Economy League found that pardons granted in Pennsylvania between 2008 and 2018 increased the state economy by $16 million over the course of a decade, by allowing for increased wages for the recipients.

And without a robust opportunity for people to clear their records, the state, and therefore the country, suffers economically because of the sheer number of people touched by mass incarceration. A 2010 study by economists John Schmitt and Kris Warner found that the high volume of people with prison and felony records increased unemployment and lowered the country’s GDP by roughly $60 billion in 2008 alone. In 2016, more than 110 million adults in the U.S. had an arrest record.

Wolf recently touted the one-year anniversary of the state’s automatic “clean slate” law, which seals certain convictions after a period of time, and the passage of legislation that eliminates some barriers to job licensure for people with criminal convictions.

Hancock commended Wolf for his overall commitment to second chances, but criticized him for having still not approved the pardons. Wolf has granted more than 900 pardons and a total of 21 commutations of life sentences since taking office in January 2015. 

“It’s deeply disturbing and upsetting that the governor is not taking more seriously these individuals’ plights by not having that pardon,” Hancock said. “Can you imagine getting that pardon and thinking your life was going to change and it hasn’t one year later?”

To read more CLICK HERE


Monday, August 17, 2020

Massachusetts legislature seeks to limit qualified immunity

The Supreme Court’s expansive interpretation of qualified immunity leads to perverse results, reported the Boston Globe.

Officers who violate Americans’ First Amendment right to peaceful protest can essentially immunize themselves from accountability by arresting demonstrators for disorderly conduct or resisting arrest — over-used and easily trumped-up charges.

The court’s interpretation of the law undercuts civil rights protections enacted by democratically elected legislators, and it undermines efforts to demand reform. Qualified immunity incentivizes misbehavior that skirts the law. And it sends precisely the wrong message to police officers whose duty it is to serve their communities.

Now is the time for decisive legislative action.

The Supreme Court had an opportunity to review qualified immunity earlier this year and declined, despite a powerful dissent from conservative justice Clarence Thomas. The liberal justices Sonia Sotomayor and Ruth Bader Ginsburg urged the Court to reexamine the protection in 2018, writing in their dissent (from a majority decision that exonerated a police officer in a shooting) that it “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

The George Floyd Justice in Policing Act, passed by the US House of Representatives on June 25, would have ended qualified immunity for police but is languishing in the Senate.

At the state level, Massachusetts has a chance to succeed where federal lawmakers and judges have failed. The police reform bill advanced by the state Senate would limit qualified immunity under state law such that lawsuits could proceed, and officers could be made to pay for wrongdoing. Police would continue to be protected in cases where no reasonable officer would have known that the conduct in question would violate an individual’s rights. And municipalities could still choose to indemnify officers found liable in courts of law.

This approach strikes the right balance. The Senate bill would not end qualified immunity, which has value as a tightly controlled protection against frivolous lawsuits, but it would reduce perverse incentives for officers, and it would promote the accountability owed to all citizens in a constitutional democracy like ours.

Officers who know they — or their department — could be sued and forced to pay for wrongdoing would behave differently. They would think twice about using excessive force against the George Floyds of the world, who are protected by the Fourth Amendment from unreasonable searches and seizures and entitled to equal protection and due process. And officers would be less inclined to assault Americans exercising their First Amendment rights.

This nation is devoted to freedom, to combating racial discrimination, and to making government accountable to the people. Legislators today, like those who passed landmark civil rights legislation more than 50 years ago, must take a stand for equal justice under law. Shielding police misconduct offends our fundamental values and cannot be tolerated.

 To read more CLICK HERE

Sunday, August 16, 2020

Trump at war with the U.S. Postal Service

The U.S. Postal Service has prompted a full-scale political war in Washington, where President Trump falsely insists that mail-in voting is wracked by fraud and where billions of dollars in emergency aid that could help stem huge losses at the Postal Service are caught in a partisan drama.

Democratic lawmakers have accused the president of sabotaging the Postal Service as a means of voter suppression and have started multiple investigations and demanded an end to delays. Speaker Nancy Pelosi of California and other top Democrats in the House have begun discussing bringing lawmakers back early from their summer recess to address the issues with the Postal Service, two people familiar with the talks said on Saturday. On Friday, the postal services’s inspector general said she had opened an inquiry into Mr. DeJoy’s actions.

Branden Boyle, the Philadelphia congressman, for example, said it was no accident that mail service had become so abysmal in the key Democratic population center in Pennsylvania.

“There is no plausible way for Donald Trump or Joe Biden to get to 270 electoral votes without Pennsylvania,” he said.

While Mr. Trump’s war on the Postal Service seems aimed at Democrats, few Americans rely more on the mail than rural residents, many of whom are Trump voters. As a result, there are also a number of Republicans uneasy about what’s happening with the agency, in particular three Republican senators from largely rural mail-dependent states who are facing competitive re-elections this fall: Steve Daines of Montana, Dan Sullivan of Alaska and Susan Collins of Maine.

Mr. DeJoy has said he is trying to reform an organization with a “broken business model” facing a litany of billion-dollar losses and declines in mail volumes. Oh, and don't forget an agency that could play a role in defeating a President he has supported with millions of dollars in campaign fund raising.

To read more CLICK HERE

Saturday, August 15, 2020

GateHouse: Contrived state laws used to stifle protesters

Matthew T. Mangino
GateHouse Media
August 15, 2020

Are protestors criminals or are they civic-minded members of the community exercising their constitutional right to assemble and advocate?

The president thinks protestors are criminals and he has said as much. He called Minneapolis protesters “thugs” and has called for his supporters to “knock the crap out” of demonstrators he opposes. He said, “I think it’s embarrassing for the country to allow protesters.”

His disdain for protesters has encouraged legislation like Tennessee’s Driver Immunity Act. Drivers hate to be inconvenienced when protesters block streets. According to Vera Eidelman and Lee Rowland of the American Civil Liberties Union, ”[D]riving isn’t a right — it’s a privilege. Protesting, on the other hand, and specifically protesting in the streets, is a fundamental constitutional right.”

Apparently inconvenience “trumps” constitutional rights in Tennessee. In 2017, Tennessee enacted a law which provides that “A person driving an automobile who is exercising due care and injures another person who is participating in a protest or demonstration and is blocking traffic in a public right-of-way is immune from civil liability.”

In Tennessee, you might be able to avoid getting sued for running over a protester, but a driver who deliberately runs over anyone—protester or not—could face serious criminal charges.

David Alan Sklansky, a criminal law expert at Stanford Law School told Reuters “Homicide law is defined state by state, but I think there is a broad consensus, first that driving a car at a pedestrian can constitute deadly force, second that the use of deadly force is justified in self-defense only when a person reasonably believes that it is necessary to use deadly force in order to protect himself against death or serious bodily injury.”

Feel good “law and order” legislation like Tennessee’s driver immunity law has encouraged recklessness and lawlessness toward protesters in Seattle, Portland, Newport Beach and West Hollywood to name a few.

However, Tennessee continues to pursue protesters with zeal. This week, the state legislature passed a sweeping proposal that targets protesters. The bill was passed by a GOP House and Senate and now sits on the desk of Republican Gov. Bill Lee.

The bill would punish protesters who camp on state property—as protesters have outside the state Capitol since the killing of George Floyd—with a Class E felony. Class E felonies are punishable by up to six years in prison, and such convictions also result in the loss of a person’s voting rights.

According to the Tennessean, the bill also provides mandatory minimum sentences for rioting. It would also mandate that those arrested for charges such as vandalism of public property and other protest-related offenses be held for at least 12 hours without bond.

“We are using a bazooka to go after a house fly here,” said Tennessee Senate Minority Leader Jeff Yarbro, a Democrat from Nashville, during Senate floor debate on the bill. He continued, “Are we really saying that a citizen of this state can be punished with a year in prison and have a felony record because they camped on public property?”

Criminal conduct during a protest should not be tolerated and those who engage in criminality should be prosecuted. The right to protest is not limitless. The government can impose restrictions on the time, place, and manner of peaceful assembly, provided they “are justified without reference to the content of the regulated speech [and] . . . are narrowly tailored to serve a significant governmental interest.”

However, the First Amendment and Fourteenth Amendment to the United States Constitution prohibits federal and state governments from enacting legislation that would abridge the right of people to peaceably assemble. As far back as 1939, the Supreme Court agreed.
Legislation that seeks to stifle free speech by the threat of harsh penalties for contrived violations of the law serve no legitimate purpose and infringe upon longstanding, fundamental constitutional rights.

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

To read more CLICK HERE

Friday, August 14, 2020

Same old approach, President Trump playing the "birther" card again

President Trump is playing the "birther" card again, reported the New York Times.  He has questioned Senator Kamala Harris' constitutional right to be on the ticket. Trump appeared to be referring to a widely discredited op-ed article written in Newsweek by John C. Eastman, a conservative lawyer who has long argued that the Constitution does not grant birthright citizenship, as proof. Ms. Harris, the daughter of Jamaican and Indian immigrants, was born in 1964 in Oakland, Calif., several years after her parents arrived in the United States.

In the hours after Joseph R. Biden Jr. announced Ms. Harris as his running mate, a new crop of memes and conspiracy website posts began proliferating online, suggesting that the junior senator was an “anchor baby” because of her background.

Mr. Eastman’s column tries to raise questions about the citizenship of Ms. Harris’s parents at the time of her birth, and argues that she may be “owed her allegiance to a foreign power or powers” if her parents were “temporary visitors” and not residents.

Constitutional law scholars have argued that the argument against her parents is irrelevant and irresponsible because Ms. Harris was born in California.

The 12th Amendment of the Constitution states that “no person constitutionally ineligible to the office of President shall be eligible to that of vice president of the United States.”

And the requirements for the presidency, outlined in Article II, Section I of the United States Constitution, are these: “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of 35 years, and been 14 years a resident within the United States.”

The 14th Amendment of the Constitution makes it even clearer: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

On Thursday, Newsweek defended Mr. Eastman’s column, and said that it had “nothing to do with racist birtherism.” Experts in constitutional law were still quick to disparage the op-ed as dangerous.

In an interview on Thursday, Laurence H. Tribe, a professor of constitutional law at Harvard Law School, compared Mr. Eastman’s idea to the “flat earth theory” and called it nonsensical, “total B.S.,” and problematic.

“I hadn’t wanted to comment on this because it’s such an idiotic theory,” Mr. Tribe said. “No serious constitutionalist who has read article II or the 14th Amendment would accept the view that someone born in the United States is not eligible to be president simply because one or another parent was an immigrant. There is nothing to it.”

To read more CLICK HERE

Thursday, August 13, 2020

Austin, Texas to cut police funding by $150 million

This week, the Austin, Texas City Council will consider one of the most substantial cuts to a major city’s police budget since George Floyd’s death, which sparked calls across the country to defund law enforcement and redirect that money to services like violence prevention, supportive housing, and substance use treatment, reported The Appeal.

Three City Council members have put forth a joint proposal to shrink the police department’s budget by nearly $150 million and reinvest those funds in services for the community. It would reduce the police department’s budget for the first time in over a decade. Advocates have called on the city to cut APD’s budget by at least $100 million; the joint proposal would do that, and move an additional $50 million from the Austin Police Department budget to a transition fund.

“Our primary response to problems as a local government is policing,” Councilmember Gregorio Casar told The Appeal. “Our community has come together like never before and demanded that change, and set a goal post of $100 million as a signal to that change.”

The vote comes after months of protest in Austin and demands from hundreds of community members to reduce APD’s $434 million budget, and reinvest that money into services that create safe and healthy communities. A session to vote on the budget begins on Wednesday, but the public comment period could push the vote itself off to Thursday or Friday.

Cities across the country have voted to cut police budgets in recent months. The Minneapolis City Council moved to disband its troubled police department in June, though the effort has since been stalled. The Los Angeles City Council voted to reverse a $120 million increase to the LAPD’s budget and cut an additional $30 million, while the New York City Council shifted $1 billion away from the NYPD. In Portland, Oregon, the mayor and superintendent agreed to remove police officers from the city’s schools and put the $1 million budgeted for school resource officers back into the community. Austin’s proposal would cut the police department’s budget by roughly a third, a larger percentage reduction than these other cuts.

The proposal put forth by Councilmembers Casar, Natasha Harper-Madison, and Mayor Pro Tem Delia Garza late last week combines many of the ideas council members have recommended throughout the budget process. Comments on the City Council message board seem to indicate a majority of the 10 council members support it: Councilmembers Leslie Pool, Ann Kitchen, Sabino “Pio” Renteria, and Jimmy Flannigan expressed their support online. Austin Mayor Steve Adler has also said he could support cutting $100 million so long as that move will be used to make fundamental changes. 

To read more CLICK HERE

Wednesday, August 12, 2020

Law and Order: Fines on corporations fell 76% from Obama’s last 20 months to Trump’s first 20 months

Donald Trump calls himself the “law and order” president, but when it comes to white collar crime, he has overseen a significant decline in enforcement, reported Bloomberg.

The prosecution of securities fraud, antitrust violations and other such crimes has hit a record low as the pandemic slows the courts, according to one tracking service. But even before the coronavirus, the numbers were falling under the Trump administration.

The average annual number of white collar defendants was down 26% to 30% for Trump’s first three years in office from the average under President Barack Obama, according to data from the Justice Department and Syracuse University, respectively. The trend also shows up in fines on corporations, which fell 76% from Obama’s last 20 months to Trump’s first 20 months, according to Duke University law professor Brandon Garrett

“Mr. Trump sets the tone,” said John Coffee, a professor at Columbia Law School whose new book, “Corporate Crime and Punishment: The Crisis of Underenforcement,” analyzes the decline.

Trump’s Justice Department has even presided over a plunge in deferred-prosecution agreements, Coffee said. In a DPA, a company is charged with a crime but prosecutors agree to drop the case later if it admits wrongdoing, pays a penalty and makes required reforms. The administration has also brought fewer white collar racketeering and money-laundering cases, crimes that carry harsher penalties, he said.

“All that is an indication that white collar crime is not a priority,” Coffee said. “If you want to celebrate corporations as leading our economy and the stock market up higher and higher, you don’t want to indict them.” 

The Justice Department says it hasn’t eased up at all.

Prosecutors “continue to bring federal charges in white collar and other cases according to facts, the law and the principles of federal prosecution,” said Peter Carr, who was a spokesman for the department’s Criminal Division until moving recently to the Department of Homeland Security.

The Department of Justice “can’t vouch for TRAC’s methodology,” Carr said, referring to Syracuse University’s Transactional Records Access Clearinghouse, which monitors trends in federal law enforcement and whose records reflect a decline of about 30% in prosecutions under Trump. He added that TRAC data “routinely differs” from the reports of the U.S. attorney offices, the U.S. Sentencing Commission and the U.S. Courts, among others.

TRAC’s tallies are based on “hundreds of millions of records” from each U.S. attorney’s office, said the group, which has been following the data for more than two decades. Cases are counted based on when they’re recorded in a prosecutor’s database, following the DOJ’s own practice, it said.

To read more CLICK HERE

Tuesday, August 11, 2020

Individual freedom vs. The greater good

 At the turn of the 20th Century, Massachusetts was going through an outbreak of smallpox, and some of the citizens there were refusing to get the smallpox vaccine.

The city of Cambridge ordered adults to get the free vaccine or face a $5 fine. One objector, Henning Jacobson, took his case all the way to the U.S. Supreme Court, which sided with the city.

Justice John Marshall Harlan authored the majority opinion in the 7-2 ruling in the Jacobson v. Massachusetts.

“In every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand,” Harlan wrote.

“Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own,” Harlan continued, “whether in respect of his person or his property, regardless of the injury that may be done to others.”

Wear a mask it is duty and the right thing to do.

Monday, August 10, 2020

Toobin examines Mueller investigation in new book

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To read more CLICK HERE

Sunday, August 9, 2020

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

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

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

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

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

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

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

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

To read more CLICK HERE

Saturday, August 8, 2020

GateHouse: Lifting barriers to success starts with reinstating driving privileges

Matthew T. Mangino

GateHouse Media

August 7, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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