Houston's homicides increase by 42% in 2020

Across the city of Houston, 400 people were murdered as of December 29, 2020. That's a spike of at least 42% over 2019 and 100 more than the highs seen in 2015 and 2016, when the city hit 300 murders, according to ABC13.

Violence across the city is up, with aggravated assaults seeing similar upward trends in a year that has been merciless.Houston's murder rate has increased over the past 10 years, but some dips in the past few years gave officials hope that the city had turned the corner.

2020's massive increase dashes those hopes amid a pandemic that is keeping suspected criminals from court dates and trials.Without the court system being able to operate, courts are backlogged at least 18 months, according to Harris County Sheriff Ed Gonzalez, who commented on previous 13 Investigates reporting of the huge slowdown in the court system.Houston Police Chief Art Acevedo told ABC13's Ted Oberg that officers are laughed at by suspects, who say they'll be free in no time and back on the street.

Murders have happened across the city, according to an ABC13 analysis that shows no area is immune from crime.

Mayor Sylvester Turner has pledged millions of dollars to help get more officers on the street, but has little progress to show for it so far, according to previous reporting by the 13 Investigates team.

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Deadliest year in NYC in nearly a decade

As December drew to a close, New York City’s 447 homicides made 2020 the city’s bloodiest year in nearly a decade, reported The New York Times.

Police officials in New York have pointed to gang disputes as a key driver of the violence over the summer, but several bystanders were caught in the cross hairs: a 43-year-old mother, killed by a stray bullet that went through her bedroom window in Queens; a man fatally shot on a handball court in Brooklyn; a 1-year-old boy, dead after a gunman opened fire on a cookout, also in Brooklyn.

But many cases were stalled because the pandemic had forced the courts to operate virtually. Hardly any new trials were conducted, and the progress of many cases was significantly slowed.

“I think we’ve struggled a little bit because of Covid, and how courts were closed, but when things start opening up, we have a lot of great work in the hopper ready to go, to really close some of the violence that we saw in 2020,” said Rodney Harrison, the Police Department’s chief of detectives.

Combating street feuds has become a sort of routine for the police, particularly in the warmer months when turf battles and social media fights can lead to spikes in gun violence in certain neighborhoods. But officials and experts have said that something about the summer’s violence felt less predictable, and that made anticipating trends more difficult. 

 “I think it’s about something more, something out there about the anxiety, and the fact that a lot of our institutions are not functioning the way they usually do,” Mr. Wexler said of the violence. “If it was just New York, I think that would be one thing. But because the crime increase in homicides is widespread, I think it says something bigger about what’s going on.”

Despite the violent summer, crime numbers in the city remained well below the dark days of the 1980s and 1990s, when New York saw more than 2,000 murders a year. Homicides and shootings have plummeted in recent years, even in some of the city’s most notoriously dangerous corners. Had 2020 not been such an anomaly, officials have said, that trend might have continued.

This year, as crime increased, the police solved less of it. Police Department records, for example, showed that officers solved 26.3 percent of serious crimes in the second quarter of the year; department figures show that 35.8 percent of serious crimes were solved over the same period in 2019.

“I think Covid played a role earlier in the year, where we had a significant amount of people out,” Commissioner Shea said, noting that in the early days of the pandemic when many officers became sick, entire teams of detectives filled in for other squads, often in unfamiliar neighborhoods. The clearance rate improved from 26.3 percent later in the year, he said, but still fell well short of 2019’s level.

Critics of the police have questioned whether officers, chafed by the summer’s unrest and the national debate over law enforcement, began responding more slowly to calls. But some experts say much of the department’s low clearance rate is tied to difficulties caused by the pandemic — officers cannot interact as widely with the public, and most people, including criminals, are wearing masks.

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Legalized marijuana leads to corruption

In the past decade, 15 states have legalized a regulated marijuana market for adults over 21, and another 17 have legalized medical marijuana, reported Politico. But in their rush to limit the numbers of licensed vendors and give local municipalities control of where to locate dispensaries, they created something else: A market for local corruption.

Almost all the states that legalized pot either require the approval of local officials — as in Massachusetts — or impose a statewide limit on the number of licenses, chosen by a politically appointed oversight board, or both. These practices effectively put million-dollar decisions in the hands of relatively small-time political figures — the mayors and councilors of small towns and cities, along with the friends and supporters of politicians who appoint them to boards. And these strictures have given rise to the exact type of corruption that got Correia in trouble with federal prosecutors. They have also created a culture in which would-be cannabis entrepreneurs feel obliged to make large campaign contributions or hire politically connected lobbyists.

 “All government contracting and licensing is subject to these kinds of forces,” said Douglas Berman, a law professor at Ohio State University who authors a blog on marijuana policy. But “there are unique facets to government contracting in [the cannabis] space that makes it uniquely vulnerable to corruption.”

It’s not just local officials. Allegations of corruption have reached the state level in numerous marijuana programs, especially ones in which a small group of commissioners is charged with dispensing limited numbers of licenses. Former Maryland state Del. Cheryl Glenn was sentenced to two years in prison in July for taking bribes in exchange for introducing and voting on legislation to benefit medical marijuana companies. Missouri Gov. Mike Parson’s administration is the target of law enforcement and legislative probes into the rollout of its medical marijuana program.

“The state Is given full control in an industry where there is so much competition — where everyone realizes how valuable these licenses are,” said Lorenzo Nourafchan, CEO of Northstar Financial Consulting, which works with cannabis businesses.

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Ohio National Guard deployed to state prisons to replace guards

Ohio National Guard members covering shifts for COVID-positive guards in state prisons are receiving just a single day of formal training before interacting with prisoners—a fraction of the training for regular corrections officers. And some are using force even with so little training, reported The Marshall Project.

State officials defended the guard members’ training as meant to supplement their military preparation, which includes skills like de-escalating conflict. But David J. Carey, senior staff attorney at the ACLU of Ohio, said it was “disturbing” that people were being placed into “that kind of a sensitive role, with a great deal of power, without being properly trained.” Likewise, two guard members who spoke with The Marshall Project said they’re feeling underprepared for the job.

“We had basically no training, we really just kind of got thrown into the fire,” one guard member said. The soldiers spoke about their deployment on the condition of anonymity, fearing sanctions for speaking outside of the chain of command. The Marshall Project confirmed the facts of their accounts about the training with state agencies.

The guard members’ concerns come as several states have used the National Guard to respond to COVID-19 outbreaks in prisons. Mostly, states have limited those deployments to monitoring prisoners’ health, delivering medicine and food, or patrolling outside prisons. Ohio, however, announced earlier this month that its National Guard would guard prisoners directly to address a shortage of correction officers caused by the pandemic. More than 700 Ohio correctional employees are positive for the virus now, part of more than 3,400 who have tested positive since the start of the pandemic.

The Marshall Project contacted several states that have announced they’re using guard members, and of those that responded only Ohio said its soldiers are working security duty inside prisons. The Ohio guard members, who are wearing military fatigues in the prisons, said they have been told to expect to be deployed through February.

Typically a corrections officer in Ohio receives 40 hours of orientation training and 160 hours of classroom and physical skills training—or about 5 weeks of instruction—along with another two weeks of on-the-job training, the state said.

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Michigan locks up juveniles for refusing to take medication and disobeying parents

A ProPublica examination of Michigan’s juvenile justice system has found that minors are locked up for offenses ranging from refusing to take medication to repeatedly disobeying their parents, reported The Crime Report.

Thanks to a decentralized structure which allows counties to “act with little oversight,” the state now ranks fourth in the nation after California, Texas and Florida in the number of minors held for technical violations, ProPublica said.

Michigan’s rate of juvenile incarceration is more than twice the national rate.

“Michigan is completely out of line with the rest of the country,” said Joshua Rovner, a senior advocacy associate at The Sentencing Project, a nonprofit focused on criminal justice reform around the country.

Data collected during a single day in 2017 shows that about 30 percent of the youth confined to detention and residential facilities in Michigan were there for noncriminal offenses, compared with 17 percent for the country overall.

In 2018, state data reported that 25 percent of the state’s youth on probation were black, even though they only make up 17 percent of the population under 17. In some cases, children have been jailed for something as simple as not logging into online classes.

“No matter what you do, it can be the smallest thing, walking down the street or going to the store at night and the police see you and find out you are on probation, you are going to get locked up,” said Cartez, a 17-year-old who entered the juvenile court system in 2018.

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Death row reprieve for woman in federal prison

A ruling by a federal judge to delay the execution of the only woman on federal death row could push the new date into the early days of the administration of President-elect Joseph R. Biden Jr., who has said he would work to end federal capital punishment, reported the New York Times.

The woman, Lisa Montgomery, had been scheduled to be executed on Dec. 8, but that date was delayed after two of her lawyers tested positive for the coronavirus shortly after traveling to a federal prison in Texas to visit her in November.

Should Ms. Montgomery’s life be spared as a result of the series of delays caused by the infection of her lawyers, it would be a rare reprieve for a prisoner from a virus that has swept through prisons, infecting inmates crammed into shared spaces.

But if the Department of Justice appeals the decision, a higher court would most likely overturn it. Since the Supreme Court paved the way in June for federal executions to proceed after a 17-year hiatus, the court has been largely unreceptive to requests from federal inmates scheduled for execution seeking clemency.

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MCN: Trump’s pardons reveal extraordinary abuse of power

Matthew T. Mangino
More Content Now
December 24, 2020

The worst fears of the framers of the U.S. Constitution have come to realization 233 years after the document was drafted, debated, revised and submitted for ratification. President Donald Trump, in an attempt to shield himself from potential prosecution, just pardoned Paul Manafort and Roger Stone. He pardoned Michael Flynn on Nov. 25.

Stone was convicted last year of making false statements, obstruction and witness tampering as revealed in the Mueller investigation. The Justice Department initially recommended a 7- to 9-year sentence, but reduced the recommendation after the attorney general intervened.

Manafort was convicted of eight felonies in Virginia in 2018 and entered into a plea agreement in a separate case to 10 charges, including three counts of failing to file reports of foreign bank and financial accounts, and seven counts of bank fraud and bank fraud conspiracy.

Flynn admitted to twice lying under oath. He pleaded guilty in December 2017 to lying to FBI investigators about his communications with Russian ambassador Sergey Kislyak before Trump took office.

The drafters of the Constitution were concerned that a president could use his pardon powers to protect himself or maybe worse, set in motion illegal conduct by subordinates with the promise of a pardon.

Paul Rosenzweig, a prosecutor during the Clinton Whitewater investigation, wrote in The Atlantic that during the Constitutional Convention the president’s pardon power was hotly contested. George Mason from Virginia was strongly opposed to granting the president such an imperial power. Mason worried that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.”

Erick Trickey of Boston University wrote in The Atlantic that special counsel Robert Mueller wrote about the possibility of Trump pardoning Manafort and Flynn.

“Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government,” the report states. “The evidence supports the inference that the President intended Manafort to believe that he could receive a pardon,” Mueller adds, “which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.”

Trickey continued that the Constitution doesn’t allow the president to abuse his pardon power. Mueller’s continued, “Congress has the authority to prohibit the corrupt use of anything of value to influence the testimony of another person which would include the offer or promise of a pardon to induce a person to testify falsely or not to testify at all.”

James Pfiffner, a professor at - ironically - George Mason University, wrote in The Hill that Mueller believed the president dangled pardons over the heads of Manafort and Flynn “intend(ing) to shape their conduct in the future and encourage them to provide false testimony or otherwise obstruct justice.”

Mason is also known for a key addition to the impeachment provision of the Constitution. Trickey wrote in The Smithsonian, that Mason asked his fellow delegates why treason and bribery were the only grounds in the draft Constitution for impeaching the president? Treason, he warned, wouldn’t include “attempts to subvert the Constitution.”

After a heated exchange with fellow Virginian James Madison, Mason came up with another category of impeachable offenses: “other high crimes and misdemeanors.” The very grounds used to impeach Donald Trump.

Trump’s impeachment did not result in his removal from office. A second attempt at impeachment is impossible with less than four weeks remaining in his term. That leaves the only limits on his power, public scorn and his legacy - neither of which Trump seems to care anything about.

Ken Gormley, a Constitutional scholar and President of Duquesne University in Pittsburgh, recently wrote in the Washington Post, “If President Trump makes the ill-advised decision to try to pardon himself ... incoming president Joe Biden should respond with another unprecedented step: He should ‘un-pardon’ his predecessor.”

I would take it one step further - if the pardons of Stone, Manafort and Flynn were provided to obstruct justice, in other words to protect Trump from criminal liability “un-pardon” them as well.

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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PA Supreme Court: Police need warrant to search vehicles

The Pennsylvania Supreme Court ruled that Article 1, Section 8 of the Pennsylvania Constitution offers greater protection to citizens from warrantless searches of their vehicles than does the Fourth Amendment of the United States Constitution, reported Jurist.

Prior to the ruling, Pennsylvania precedent held that the federal automobile exception to the warrant requirement of the Fourth Amendment applied in Pennsylvania without exception.

Justice Christine Donohue, who penned the opinion for the majority, relied heavily on previous opinions from former Pennsylvania Supreme Court Justice Debra Todd in reaching her conclusion. Donohue quoted Todd, who believed that “[t]he absence of similar language in the Fourth Amendment suggests that Article I, Section 8 ‘was intended to protect an individual’s privacy interest in all of his or her possessions or things in any place they may be,’ including a vehicle.” Additionally, Todd was quoted as stating that Article 1, Section 8 provided citizens “a robust individual right of privacy in one’s papers and possessions, and protects that privacy right through its warrant requirements for searches of ‘any place’ such items may be found.”

Donohue and the majority ultimately concluded that the Pennsylvania Constitution requires two showings to justify a warrantless search of an automobile. The officer(s) must have probable cause, and further, the exigent circumstances must justify a warrantless search. The Court chose not to define the meaning of exigent circumstances. Instead, they suggest that each warrantless search be reviewed on a case by case basis, considering the totality of the circumstances to determine its constitutionality.

The Court did state that the default rule for officers is to obtain a warrant. In the event that an officer proceeds to conduct a warrantless search, a court in review will be required to determine whether exigent circumstances existed to justify the officer’s judgment that obtaining a warrant was not reasonably practicable.

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Gun violence surges in 2020

The end of October saw the total number of gun homicides in 2020 already exceeded the year-end total for each of the past four years, according to The Trace with data tracked by the nonprofit Gun Violence Archive.

In some communities, violence was already soaring when the pandemic prompted statewide lockdowns. Philadelphia, Houston, and Memphis tallied 10 percent more homicides between January and March than in the same period in 2019. The problem was even worse in Milwaukee, where killings doubled. 

Rusti Pendleton, a violence intervention worker at Boston Medical Center, saw the costs of this violence at the bedsides of shooting victims, where he urged them to put down their weapons and enlist the help of a caseworker. He worried that the pandemic would inflame the first-quarter homicide increases, and he was right: By July, homicides in Boston had surged 40 percent over the previous year. The interplay was readily apparent at the hospital, where two out of every 10 shooting victims tested positive for COVID-19, forcing Pendleton to keep his distance. “They would be whisked off to another part of the hospital, and for the safety of my own family I gotta choose not to deal with that,” he said.

Similar scenes played out across the country as social-distancing measures handicapped violence intervention groups and shuttered community programs designed to keep young people occupied during the summer months. The pandemic snuffed out “just about every positive source of social connection or mental health outlet available to these communities most at risk for gun violence,” said Lisa Fujie Parks, an associate program director at the Prevention Institute, a national anti-violence nonprofit. 

In some cities, the violence has overtaken the pandemic as the chief concern among locals. Ricky Vasquez, a Republican precinct chairman and City Council candidate in Fort Worth, said that, since a mass shooting in May, residents in his neighborhood haven’t felt safe walking to the store. He said their fear is driven less by the risk of contracting coronavirus than of the likelihood they’ll be shot. With homicides reaching into triple digits, Fort Worth has suffered a level of bloodshed not seen since 1995. “The last City Council meeting, we were at something like 87 homicides, and then all of the sudden just recently we found out we’re over 100,” Vasquez said. “People are wondering if they’ll survive.” 

Likewise, in Philadelphia, the City Council has called on the mayor to declare gun violence a citywide emergency. City Councilmember Jamie Gauthier proposed the resolution in September. It passed a day after four people were shot — two of them fatally — at a basketball court near Center City. 

Gauthier told The Trace that gun violence was not being treated as seriously as the coronavirus, even though both were exacting a disproportionate toll on the city’s Black residents. “I want to see us mobilize on gun violence in the same way that we mobilized on COVID-19,” she said. “All of these young Black people who are dying and getting shot at every day deserve the same level of priority and action.” 

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Fingerprint evidence alone not enough to convict man of robbery

A man sent to prison for robbery successfully appealed his conviction, arguing that fingerprint evidence alone was not enough to prove that he committed the crime, reported The Legal Intelligencer.

The U.S. Court of Appeals for the Third Circuit on Tuesday ruled in favor of defendant Jamar Travillion, who was sentenced to 10 to 20 years in prison for robbery in 2006. While successful in overturning his robbery conviction, Travillion will remain incarcerated because of a separate sentence of life without parole for second-degree murder.

Travillion was accused of robbing the Rainbow Apparel store in Pittsburgh, according to Third Circuit Judge Luis Restrepo’s Dec. 15 opinion. The store’s owner, Deborah Diodati, testified that a man with a turtleneck around his face and a stocking covering his head forced his way into the store and demanded money. She obliged, handing over approximately $6,000 from the store’s safe. In the process of the robbery, the suspect dropped a manila folder containing papers he’d carried into the store.

A police investigation found Travillion’s fingerprints on the folder but nowhere else in the store, including an office door that Diodati said was torn from its hinges by the robber. Additionally, Diodati was unable to identify the suspect more specifically than noting his clothing, race and dialect.

Because of that, Restrepo said, the court concluded the evidence was insufficient to convict  Travillion of robbery.

“Evidence that Travillion’s fingerprints were found on the easily movable manila folder and a paper inside the folder carried into the store by the robber and a witness’ description of the robber that does not match Travillion but doesn’t necessarily exclude him is not sufficient evidence for a rational trier of fact to place Travillion at the scene of the crime at the time the crime was committed beyond a reasonable doubt,” Restrepo said.

The judge added that the evidence did nothing to place Travillion at the store during the time of the robbery.

“There was no evidence that the folder and paper were unavailable to Travillion prior to the robbery, no evidence as to the age of the prints, and no evidence as to how long the prints could remain on the folder and paper after their impression,” Restrepo said.

He added, “In addition to the absence of evidence regarding when Travillion’s fingerprints on the easily movable folder and paper were impressed, there was a lack of sufficient additional incriminating evidence, circumstantial or otherwise, so as to allow a rational juror to find guilt beyond a reasonable doubt. Although there is evidence that Travillion touched the folder at some indefinite time with his left hand, and there is evidence that the robber carried the folder at the time of the crime in his left hand, there is not sufficiently incriminating evidence that Travillion was the perpetrator holding the folder at the time of the crime.”

The Allegheny County District Attorney’s Office declined to comment.

Travillion’s attorney, Kimberly Brunson of the Federal Public Defender’s Office for Western Pennsylvania, said she thought the Third Circuit “got it right.”

“Mr. Travillion was convicted and sentenced to 10 to 20 years imprisonment without sufficient evidence to support the jury’s verdict,” Brunson said. “This decision is a victory for every citizen who stands accused of a crime because it affirms the prosecution’s duty to provide proof beyond a reasonable doubt as to every element.”

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Martial law . . . really?

Last week, President Donald Trump met with Rudy Giuliani and disgraced former national security adviser Michael T. Flynn, among others to discuss the president declaring martial law to have an election do over in some states, reported the Washington Post.

The imposition of martial law accompanies curfews; the suspension of civil law, civil rights and habeas corpus; and the application or extension of military law or military justice to civilians. Civilians defying martial law may be subjected to military court or tribunal. 

Flynn had suggested on Newsmax that Trump could authorize the military to rerun the election. “He could order the, within the swing states, if he wanted to, he could take military capabilities, and he could place those in states and basically rerun an election in each of those states,” Flynn said.

The next day, Flynn was in the Oval Office to discuss the idea. Flynn’s attorney, Sidney Powell, who has promoted outlandishly false claims about this year’s election, including a disproved allegation that Venezuelan communists programmed U.S. voting machines to flip votes for Biden, was also at the meeting.

Officials inside the White House said Chief of Staff Mark Meadows and White House counsel Pat Cipollone pushed back “strenuously” on the idea of martial law. Two officials, who like others for this story spoke on the condition of anonymity to discuss private matters and conversations, said that there have been no efforts inside the White House to actually deploy the military and that the idea was quickly dismissed at the meeting.

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mattmangino.com reaches milestone of 1 million pageviews

 

I am proud to announce that my blog mattmangino.com has reached 1 million pageviews.  Thank you for visiting mattmangino.com.  See the ongoing tally of pageviews to the right.

EEOC: Employers can require workers to get a Covid-19 vaccine

Employers can require workers to get a Covid-19 vaccine and bar them from the workplace if they refuse, the federal government said in guidelines issued this week, reported the New York Times.

Public health experts see employers as playing an important role in vaccinating enough people to reach herd immunity and get a handle on a pandemic that has killed more than 300,000 Americans. Widespread coronavirus vaccinations would keep people from dying, restart the economy and usher a return to some form of normalcy, experts say.

Employers had been waiting for guidance from the U.S. Equal Employment Opportunity Commission, the agency that enforces laws against workplace discrimination, because requiring employees be tested for the coronavirus touches on thorny medical and privacy issues covered by the Americans With Disabilities Act of 1990.

The guidance, issued on Wednesday, confirmed what employment lawyers had expected.

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MCN: Asset forfeitures provide a $70 billion windfall for law enforcement

Matthew T. Mangino
More Content Now
December 18, 2020

Two Middle Eastern men were driving through Pennsylvania on their way from Brooklyn to Tennessee. Their vehicle was stopped by the Pennsylvania State Police. According to Spotlight PA, an independent, nonpartisan news service affiliated with The Philadelphia Inquirer, during the traffic stop the state trooper asked if either man was carrying a large sum of cash.

The men said yes, explaining that they had $10,000 because they were worried about their car breaking down and wanted cash for repairs. They told the trooper whatever money was left would be used for one of the men to travel to Egypt.

After getting consent to search the vehicle, the police found nothing. Regardless, the state police took the $10,000. The money was later tested and found to have “high levels of PCP.”

The Pennsylvania Attorney General’s Office concluded the cash was “used to buy or sell drugs through an unknown drug-trafficking ring.” Neither man was charged with a crime or even cited for a traffic violation. However, because the men did not contest the civil forfeiture of the cash, the state kept it.

This form of government-sanctioned theft is not unique to Pennsylvania - although Pennsylvania Governor Tom Wolf has requested the state’s Office of Inspector General conduct a review of whether Pennsylvania State Police troopers are following the law when initiating traffic stops and then searching vehicles.

This week, the Institute for Justice released the third edition of “Policing for Profit: The Abuse of Civil Asset Forfeitures.” With data from 45 states, the District of Columbia and the federal government, the report reveals that civil asset forfeitures are a massive nationwide problem. According to the report, states and the federal government have forfeited at least $68.8 billion, in the last 20 years.

That is probably why, according to a Cato Institute/YouGov Survey, 84% of Americans oppose civil asset forfeitures. Only one in six people think police ought to be allowed to seize property before a person is convicted.

How can the assets of a person not convicted of a crime be forfeited to the government?

Forfeiture cases are brought against the property, meaning prosecutors file suit against items like cash, cars or homes. According to Spotlight PA, the courts then require the owners to prove they have the legal basis to challenge the state and then argue to get their property back. Since the process is handled in civil court, people seeking to get their money back are not entitled to a court-appointed attorney.

In 2019, the U.S Supreme made a ruling that many thought would kick the legs out from under civil asset forfeiture. An Indiana man was convicted of drug trafficking. The police seized his recently purchased Land Rover SUV. He purchased the SUV with the proceeds of his late father’s life insurance.

The vehicle was worth $42,000. His fine was $10,000. The trial judge said the forfeiture was, pursuant to the Eighth Amendment, excessive and disproportionate to the offense. The Supreme Court agreed.

In spite of the Supreme Court’s ruling, civil asset forfeitures continue. There is tremendous incentive for police to grab assets. In most states, police and prosecutors have complete access to those funds for any “law enforcement” purpose they can dream up.

The Institute of Justice report also revealed that forfeitures rarely target big-time criminals. Nearly half of all currency forfeitures are “worth less than $1,300.” The data reflects that the police are not taking the assets of kingpins, but rather small-time offenders who can’t afford to hire an attorney and who simply walk away from their property.

Lisa Knepper, a research director with the Institute of Justice, put it best, “Most laws still stack the deck against property owners and give law enforcement perverse financial incentives to pursue property over justice.”

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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Female inmate population has risen as male population declined

The number of women held in America’s jails has risen more than 20% over the past decade, to an average of more than 115,000 inmates a day, according to Reuters. And more and more are arriving in need of medical attention or with debilitating health conditions that strain the capacity of lockups typically designed for men. Thousands arrive pregnant each year. Most suffer from mental illness – at far higher rates than their male counterparts – and they’re more likely to experience drug and alcohol addiction.

As more women land in America’s local jails, more are dying there, too.

Reuters, analyzing data it obtained from more than 500 U.S. jails, documented 914 deaths of female inmates in those facilities from 2008 to 2019. In a three-year stretch from 2008 to 2010, 171 women died in the jails surveyed. From 2017 to 2019, the number rose to 287 dead, amid a spike in drug and alcohol deaths across U.S. society.

The casualties disproportionately affect Black women. Blacks comprise less than 14% of the U.S. population, but at least 24% of the 914 female victims identified by Reuters were Black. Information on race was unavailable for about 5% of female victims.

Seventy percent of the women who died over the 12-year period – at least 639 inmates – were awaiting trial, unconvicted and presumed innocent of the charges they faced. The death toll doesn’t include a category of collateral fatalities: their infant children.

The female inmate population has risen even as the male population declined, Reuters found, and many women struggle to afford bail, which can lead to longer jail stays.

“These women are showing up with needs, imminent needs, usually during a period of crisis and with trauma,” said Jessica Stroop, a correctional consultant with The Moss Group and former researcher specializing in female inmates at the U.S. Bureau of Justice Statistics. “It puts a massive strain on the jails.”

Jails “need to have gender-responsive programs and staff and training and facilities,” Stroop said. Instead, “women often get treated as a bolt-on” in jails “designed for men.”

Jailers have been slow to adapt their medical programs, staffing models and housing strategies to accommodate the demographic shift, say experts. The Milwaukee jail, which had few cells set aside for women in need, has been under court supervision since 2001 due to repeated findings of inadequate healthcare; the sheriff’s office did not reply to five interview requests and a lawyer representing the county declined comment.

The influx of women in jails “poses significant challenges, because there are limited resources,” said David Mahoney, the sheriff in Dane County, Wisconsin, who is also president of the National Sheriffs’ Association. The prevalence of addictions, mental illness and pregnancy “is a strain” requiring more personnel, housing and medications, he said.

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Attorney General Bill Barr's fall from grace

According to Matt Ford of The New Republic, Attorney General William Barr, who recently announced his resignation, did more damage to the rule of law than any other attorney general in American history. He transformed the Justice Department into a partisan cudgel for President Donald Trump, undercutting probes that might damage the White House and doling out special treatment for presidential allies who broke the law. He treated hypocrisy like a virtue and self-awareness as a vice.

Barr set out to dismantle the work of the Mueller investigation. Earlier this year, the Justice Department’s upper ranks overrode a sentencing recommendation by career prosecutors for Roger Stone, a close Trump ally who was convicted of lying to Congress about the Russia investigation. The second version of the recommendation all but pleaded with the judge for leniency—a quality that Barr does not extend to people who aren’t friends with Donald Trump. Under Barr’s watch, Justice Department prosecutors also tried to withdraw their case against former national security adviser Michael Flynn, who pleaded guilty to lying to the FBI to avoid prosecution on other charges. Trump eventually intervened in both cases with the use of his pardon power, and may ultimately use it to wipe away legal consequences for other allies over the past four years.

Like the president and many other Americans, Barr also appears to believe too much of what he sees on Fox News. He shares Trump’s unfounded belief that widespread voter fraud exists, and followed the president’s lead in sapping public confidence in the American electoral system throughout the year. Barr claimed from time to time that a foreign power could inundate states with fraudulent mail-in ballots, a scenario that election officials and experts said would be easy to detect and logistically impossible to carry out. In an interview with a Chicago Tribune columnist this fall, Barr baselessly complained that “there’s no secret vote” with mail-in balloting, and that elections could be decided by corrupt big-city machines and bought-off mailmen.

It’s now axiomatic in conservative circles that Democrats tried to sabotage Trump during the 2016 election and transition period, and that the 2020 election was marred by some sort of systemic fraud that deprived Trump of victory. Barr did not invent either of these conspiracy theories, but he used the full weight and influence of the Justice Department to give them credence at every turn. For all of Barr’s pieties about the decay of the American republic, there are few in public life who have contributed more to it.

It’s fitting, then, that what appears to have driven Barr from his post was his failure to give Trump everything he wanted. There was no October surprise against Joe Biden from the FBI this year like the one that helped fell Hillary Clinton in 2016. Federal prosecutors found no evidence to support Trump’s lies about widespread voter fraud, even though Barr effectively gave them carte blanche to pursue it. That news turned both Trump and the conservative base writ large against one of their most loyal foot soldiers. Barr was more than happy to serve as the Tudor-era lord chancellor to Trump’s Henry VIII–like presidency. But he forgot how that ended for Thomas More and Thomas Cromwell.

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State executions fall to lowest level in 37 years

In a year unlike any other that featured the combination of court shutdowns from the worst pandemic in more than a century, a national reawakening on racial justice issues, and historically aberrant behavior by the federal government, executions and death sentences in the United States fell to historic lows, according to a new report by the Death Penalty Information Center. 

The deep decline in death sentences and state executions was unquestionably a by-product of the pandemic, but even before the pandemic struck, the nation was on pace for the sixth straight year of near-record low sentences and executions. 

Colorado became the 22nd state to abolish the death penalty and two states – Louisiana and Utah – reached ten years with no executions. New reform prosecutors who pledged never to use the death penalty or to seek it only sparingly were elected in counties across the country comprising more than 12% of the nation’s death row. The resumption of federal executions after 17 years with an historically unprecedented six-month execution spree marked the federal government as an outlier in 2020, as for the first time in the nation’s history, the federal government carried out more civilian executions than all of the states of the Union combined.

“At the end of the year, more states and counties had moved to end or reduce death-penalty usage, fewer new death sentences were imposed than in any prior year since capital punishment resumed in the U.S. in 1970s, and states carried out fewer executions than at any time in the past 37 years,” said Robert Dunham, DPIC’s executive director and the lead author of “The Death Penalty in 2020: Year End Report.” “What was happening in the rest of the country showed that the administration’s policies were not just out of step with the historical practices of previous presidents, they were also completely out of step with today’s state practices.” 

Seventeen people were executed in 2020, down from 22 in 2019. Just five states – Alabama, Georgia, Missouri, Tennessee and Texas – performed executions this year and only one, Texas, conducted more than one. The total number of executions was the lowest since 1991 and the lowest number of executions performed at the state level since 1983. 

Read “The Death Penalty in 2020: Year End Report” at https://bit.ly/34ecLPv.  

AG Barr departs the DOJ in much the same way as his predecessor

Attorney General William Barr has resigned. The second AG to fall from grace with the President. Earlier this month, Barr ever the obsequious leader of the Justice Department, said that the Justice Department had not turned up any evidence of fraud “on a scale that could have effected a different outcome in the election,” placing him at odds with his boss, reported The Atlantic. Trump fulminated publicly against his attorney general’s decision not to get involved in any of the postelection lawsuits that Trump and his allies pursued in an attempt to overturn the will of voters, calling Barr a “big disappointment.”

Trump was also furious that a much-hyped investigation into the origins of the FBI’s probe of Russian interference in the 2016 election, led by U.S. Attorney John Durham, did not produce any findings before the 2020 election. The president’s ire grew when The Wall Street Journal reported that Barr had overseen a probe into Hunter Biden, son of President-elect Joe Biden, but had taken pains to ensure that it was not made public prior to the election, to avoid the appearance of tampering. (Hunter Biden has not been charged with any crimes, but the probe is ongoing.) The problem was that tampering with the election was exactly what Trump had wanted Barr to be doing.

As the president raged publicly, The New York Times reported first that Barr might leave early, and then more recently that he would not. Given this backstory, the mutual warm words from Barr and Trump are hard to take at face value, but they also make it tough to know what actually happened. Did Trump push Barr out? Was Barr annoyed by Trump’s meddling? The enigma makes it even harder to know what to expect from the next few weeks. Was Barr’s departure a disagreement over things that had already happened, or is Trump hoping that new Acting Attorney General Jeff Rosen, the current deputy attorney general, will be easier to railroad into fresh mischief?

Nonetheless, Trump’s split with Barr echoes his falling-out with former Attorney General Jeff Sessions before his first attorney general’s departure two years ago. Neither man deserves much praise for doing the bare minimum of resisting some of Trump’s abuses, but their departures are interesting because no Cabinet secretaries have been as effective at carrying out Trump’s agenda as Sessions and Barr. 

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Manhattan prosecutors ramp up investigation of President Trump

State prosecutors in Manhattan have interviewed several employees of President Trump’s bank and insurance broker in recent weeks, according to people with knowledge of the matter, significantly escalating an investigation into the president that he is powerless to stop, reported The New York Times.

The interviews with people who work for the lender, Deutsche Bank, and the insurance brokerage, Aon, are the latest indication that once Mr. Trump leaves office, he still faces the potential threat of criminal charges that would be beyond the reach of federal pardons.

It remains unclear whether the office of the Manhattan district attorney, Cyrus R. Vance Jr., will ultimately bring charges. The prosecutors have been fighting in court for more than a year to obtain Mr. Trump’s personal and corporate tax returns, which they have called central to their investigation. The issue now rests with the Supreme Court.

But lately, Mr. Vance’s office has stepped up its efforts, issuing new subpoenas and questioning witnesses, including some before a grand jury, according to the people with knowledge of the matter, who requested anonymity because of the sensitive nature of the investigation.

The grand jury appears to be serving an investigative function, allowing prosecutors to authenticate documents and pursue other leads, rather than considering any charges.

When Mr. Trump returns to private life in January, he will lose the protection from criminal prosecution that his office has afforded him. While The New York Times has reported that he discussed granting pre-emptive pardons to his eldest children before leaving office — and has claimed that he has the power to pardon himself — that authority applies only to federal crimes, and not to state or local investigations like the one being conducted by Mr. Vance’s office.

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Trump administration carries out another lame duck execution

The 17th Execution of 2020

Alfred Bourgeois was executed by the federal government Friday evening at the Federal Correctional Center in Terre Haute, Indiana, according to the Bureau of Prisons.

Bourgeois, 56, was sentenced to death in 2004 for torturing and killing his 2-year-old daughter in Texas. He was pronounced dead at 8:21 p.m. ET.

In his last words, Bourgeois offered no apology and instead struck a deeply defiant tone, insisting that he neither killed nor sexually abused his baby girl, according to a report from the journalist present.

"I ask God to forgive all those who plotted and schemed against me, and planted false evidence," he said, according to the report, adding, "I did not commit this crime."

Bourgeois is the 10th person to be executed since Attorney General William Barr announced in July 2019 the revival of capital punishment for federal death row inmates. Bourgeois was one of the first five scheduled to be executed.

Bourgeois was originally scheduled to die on January 13, but after challenging the implementation of the lethal injection, the District Court for the District of Columbia stayed the execution. After the Supreme Court ruled that another death row inmate cannot be executed because of his intellectual disability, Bourgeois was able to make a "strong argument" in March of his own intellectual disability "under current diagnostic standards and that a hearing should be held to consider the evidence," according to court documents.

"The jury that sentenced Mr. Bourgeois to death never learned that he was a person with intellectual disability because his trial lawyers did not present the evidence that was available to them," Victor Abreau, an attorney for Bourgeois, said in a news release after the execution date was rescheduled on November 20 to Friday.

After a higher court vacated Bourgeois' order to stay his execution, the Bureau of Prisons rescheduled his death date, and he had exhausted all appeals.

Supreme Court Justices Sonia Sotomayor and Elena Kagan published a dissent saying Bourgeois' execution should have been stayed and he should have had an opportunity for a hearing to prove his intellectual disability.

There are three more federal executions scheduled before January 20. President-elect Joe Biden has pledged to abolish the federal death penalty and will give incentives to states to steer them away from seeking death sentences.

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MCN: Few criminal trials feature the defendant’s testimony

Matthew T. Mangino
More Content Now
December 11, 2020

Why do so few men and women charged with a crime exercise their constitutional right to testify in their own defense?

The answer is complicated.

Let’s start with the fact that in state and federal courts only a small percentage of cases even go to trial. According to the Pew Research Center, in 2018 nearly 80,000 people were prosecuted in federal criminal court - only 2% went to trial.

Choosing to go to trial can be a risk. One concern is the “trial penalty,” a widely lamented tool of prosecutors used to punish people who go to trial more harshly than similarly situated defendants who plea bargain.

In some jurisdictions, including federal court, the gap between sentences has gotten so wide that defense attorneys have coined the phrase “plea bargaining coercion,” to portray clients who plead guilty to avoid the draconian punishment for exercising their right to trial.

Some experts say the process has become so coercive in state and federal courts, that defendants weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence.

Once that seemingly bold, and exceedingly rare, decision to go to trial is made, a whole host of other issues must be considered. The decision to testify is a strategic one. It wasn’t long ago when defense attorneys made the decision about whether their clients would testify. In 1987, the U.S. Supreme Court changed all that, when it decided that the decision to testify was a “personal and fundamental constitutional right.”

The government has the burden of proving a defendant guilty beyond a reasonable doubt - the defendant has no obligation to prove anything.

That is the law, but there are times the jury wants to hear the defendant’s side of the story. There are risks that come with testifying. A defendant’s criminal record, which may otherwise have been kept from the jury, can be used to impeach the defendant’s credibility if he or she takes the witness stand.

Professor Anna Roberts of Seattle University Law School wrote in a 2016 law review article, “A recent study of DNA exonerees revealed that, despite their factual innocence, 91% of those with prior convictions waived their right to testify at trial. The most common reason given by their counsel was the fear of the impact of impeachment.”

According to Roberts the fear was justified “allowing the jury to learn of a defendant’s criminal record increases the rate of conviction by as much as 27%.”

Testifying in front of a robe-draped judge, in an ornate courtroom, in front of 12 strangers who will decide your fate can be daunting. What kind of witness will the defendant make? Is the defendant friendly? Is she articulate? Does she understand the gravity of the situation? Does she have a temper or tendency to fly off the handle?

No matter how well prepared to testify, a defendant will be subject to cross-examination. The process can be grueling and can reveal holes in the defendant’s story that can result in a conviction.

The other option for a defendant at trial is silence. A silent defendant can leave a jury wondering why the defendant didn’t refute the charge - although a defendant has no obligation to present an alternative to the prosecution’s case.

More importantly, the defendant who remains silent loses an opportunity to win over the jury.

In a 2008 study, Daniel Givelber and Amy Farrell found an increase in the percentage of acquittals when the jury heard from the defendant. When a jury heard from both the defendant and other witnesses on the defendant’s behalf, the acquittal rates rose substantially.

To testify, or not to testify, is the question - the answer is ... complicated.

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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Lame duck administration carries out 9th federal execution of 2020

The 16th Execution of 2020

The federal government executed Brandon Bernard on December 10, 2020, one of five death sentences the Trump Administration hopes to carry out before President-elect Joe Biden takes office next month, reported the Washington Post.

This schedule has spurred significant pushback, with critics arguing against carrying out a wave of executions in the narrow window before Biden, who opposes capital punishment, takes office. Three of the executions are set for the week before Biden’s inauguration Jan. 20.

Bernard’s case had drawn high-profile condemnation, with Kim Kardashian West, among others, tweeting about his case and sharing a petition calling for his death sentence to be commuted to life in prison.

On the evening of the execution, the U.S. Supreme Court rejected Bernard’s stay request, clearing the way for his execution to proceed. The court’s three liberal justices — Stephen G. Breyer, Elena Kagan and Sonia Sotomayor — said they would have granted the stay. An hour later, officials said Bernard’s execution had been carried out and he was pronounced dead at 9:27 p.m. Bernard was the ninth federal death-row inmate executed this year.

Bernard and Christopher Vialva, his co-defendant, were convicted of murder in 2000 for their roles in the killing of two youth ministers, Todd and Stacie Bagley, the previous year.

Some of their associates asked Todd Bagley for a ride, and after he agreed, they put the couple into the car’s trunk and drove them to an isolated area on the Fort Hood, Tex., military reservation, according to court records.

Vialva shot each of them in the head, and Bernard set the car on fire; Todd Bagley was killed by the gunshot, while Stacie Bagley by smoke inhalation, the records show. Bernard was 18 at the time. Vialva was 19; he was executed by the federal government in September.

Bernard’s attorneys argued that his trial was flawed and emphasized that several jurors from his case now supported him being sentenced to life in prison rather than death. They also described Bernard as a model prisoner.

Robert C. Owen, an attorney for Bernard, assailed the execution in a statement Thursday night, saying it was “a stain on America’s criminal justice system.”

Owen said Bernard was put on death row due to “egregious government misconduct in concealing evidence and misleading the jury, which the courts refused to remedy.”

In a dissent Thursday night, Sotomayor wrote: “Bernard has never had the opportunity to test the merits of [his] claims in court. Now he never will.”

Federal officials, in their own court filings, defended the government’s prosecution and stressed that Bernard participated in the crime. They also wrote that jurors still voted to give Bernard a death sentence despite hearing testimony about his “marginally lesser role” in the killings than Vialva.

In statements released by the Bureau of Prisons after the execution, family and friends of the Bagleys described the killings as a “senseless act of unnecessary evil” and thanked President Trump and Attorney General William P. Barr. They wrote that they “have grieved for 21 years waiting for justice to finally be served.”

Bernard’s last words included an apology directed at the victims’ family, according to the media pool report.

“I’m sorry,” he said, lifting his head to look at the windows to witness rooms. “That’s the only words that I can say that completely capture how I feel now and how I felt that day.”

Speaking to reporters shortly after the execution, Todd Bagley’s mother, Georgia, became emotional about Bernard’s apology, saying it helped heal her heart, according to the pool report. “I can very much say: I forgive them,” she said.

The Justice Department has pushed back at criticism of its execution schedule, saying that Barr is following the law in carrying out death sentences, which attorneys general of both parties have sought over the years.

Federal officials plan Friday to execute Alfred Bourgeois, who killed his 2-year-old daughter and was convicted in 2004. His attorneys say Bourgeois has an intellectual disability and have asked the Supreme Court to stay the execution.

Last year, Barr announced that the Justice Department would begin carrying out executions again using a new lethal-injection protocol. Before that, the federal government had not carried out any since 2003.

Lethal injection remains the primary method of execution in the United States, though officials have struggled to obtain the drugs involved in recent years due to opposition from pharmaceutical firms.

Barr’s original plan to resume executions late last year was scuttled by court challenges to the new lethal-injection procedure, which was eventually upheld. In July, after the Supreme Court rejected a volley of challenges, the Justice Department carried out three executions in four days, matching the total number it had conducted over the previous three decades.

The legal challenges to these executions included opposition based on the coronavirus pandemic, which has torn through some prisons and jails. Some victims’ relatives opposed one execution, arguing they would have put their lives at risk traveling to witness it, while spiritual advisers in other cases made similar arguments.

One of the executions originally planned for this month was delayed after attorneys for Lisa Montgomery, who was set to be executed, said they contracted the coronavirus traveling to meet with her. They asked for a delay, and her execution has been pushed back to January.

Authorities have acknowledged that some people who went to Terre Haute, Ind., where federal executions are carried out, tested positive for the coronavirus after attending the most recent one.

Rick Winter, a Federal Bureau of Prisons official, said eight members of the team involved in the Nov. 19 execution of Orlando Hall tested positive after returning home. In a court filing this week, Winter said six of them tested positive within about a week of going home, and two others tested positive more than a week after returning home.

Five of the people who tested positive planned to travel back to Terre Haute for the executions planned this week, Winter wrote Monday in his filing. The two people who tested positive the most recently will not travel, he wrote, and a third person cannot go for personal reasons.

Critics, including attorneys for death row inmates, say that setting the executions during the pandemic puts people at undue risk.

“There is no way to conduct these federal executions right now in a way that is safe,” Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, said in a statement. “The federal government isn’t just willing to sacrifice the health and safety of people incarcerated at Terre Haute — it’s sacrificing its own employees, people who live in Vigo County, spiritual advisors, and so many others.”

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