Sunday, January 31, 2021

Philadelphia criminal prosecutions slow to a trickle

 As the pandemic forced Philadelphia’s criminal courts to shut down for much of 2020, and some defendants approached a year in jail without a hearing, lawyers began noticing a strange phenomenon. Thousands of cases were all being listed for December status hearings in Room 200 of the Stout Criminal Justice Center.

The problem? There is no such courtroom, according to the Philadelphia Inquirer.

The process of rescheduling those cases is ongoing — court dates are now being scheduled into July, lawyers said. It has become one striking example of the courts’ struggle to adapt, as an escalating backlog has now exceeded 13,000 cases, according to the Defender Association of Philadelphia. Ten months into the pandemic, the rule guaranteeing a speedy trial remains suspended.

Last week, the Defender Association took the unusual step of petitioning the Pennsylvania Supreme Court to intervene. The filing sought release for six people who had been jailed more than 200 days without a preliminary hearing, at which prosecutors must show probable cause that a crime occurred.

 “Because nearly all court hearings and trials have either stopped or slowed to a trickle, each petitioner, and hundreds of others like them, have been unable to contest the basis of their confinement,” the Defender Association wrote.

The president judge of Philadelphia’s Municipal Court, Patrick F. Dugan, said in an interview that the courts are navigating a complicated and imperfect process amid unprecedented challenges.

“I have two jobs. One is our mission, which is to do these cases in a fair and expeditious manner for everyone involved,” he said. “But in COVID, the welfare of the people has to be a parallel [concern]. We have to take into consideration the health of our people: the attorneys on all sides, the sheriffs, witnesses, victims, police, anyone involved in our court system.”

Courtrooms where judges once heard more than 50 cases per day are now limited to a few per hour, he said.

And even when the court is ready, other justice system actors may not be.

Last fall, he instituted status calls before preliminary hearings to ensure that all sides would be ready. But of 4,300 hearings scheduled that way, 61% still ended up getting delayed.

To read more CLICK HERE

Saturday, January 30, 2021

MCN/USA TODAY: Bail reform is safe, humane and fiscally responsible

Matthew T. Mangino
January 29, 2021

Every day in America thousands of people are locked-up because they don’t have money. Although those accused of a crime are presumed innocent until proven guilty, the monetary bail system denies them their freedom. Those unfortunate few, without resources, sit in jail and are at risk of losing their jobs, their homes and their families.

Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in this nation to contribute to the nearly $1 trillion spent on pretrial detention, according to the Pretrial Justice Institute - which amounts to about 6% of the Gross Domestic Product.

Correcting the bail crisis is not out of reach. This isn’t about being tough on crime. It’s about being fair. For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.

For taxpayers the issue is just as compelling. If the cost of pretrial detention could be cut in half, taxpayers could save literally billions of dollars annually.

A recent CNN review of all 50 states and the District of Columbia found that the powerful bail industry has derailed, stalled or killed reform efforts in at least nine states. In spite of those special interests, more than 25 states, including Colorado, Connecticut, Ohio, Nevada, Utah and Kentucky, have passed laws or enacted changes that address bail practices, while several states have pending reform measures.

Here are examples of successful bail reform efforts. Former New Jersey Gov. Chris Christie’s bail reform program was implemented in 2017. The reform effort was bipartisan. Reform came about through a Republican governor, a Democratic legislature as well as the unlikely partnership of the state judiciary, prosecutors, defense attorneys and the American Civil Liberties Union.

According to the Chicago Tribune, New Jersey has enjoyed a significant drop in violent crime, a 29% decrease in pretrial incarceration, and virtually no change in recidivism or court appearance rates. In addition, New Jersey taxpayers saved hundreds of millions of dollars by not having low-risk, nonviolent offenders warehoused in local jails.

The Illinois legislature also passed a bail reform package. Starting on Jan. 1, 2023, “all persons charged with an offense shall be eligible for pretrial release before conviction,” and the “requirement of posting monetary bail” will be abolished.

The law will place the burden on state prosecutors to prove an accused should be detained, rather than the accused proving that they should be free pending trial.

According to the Illinois Times, the state’s attorney must request detention in each eligible case through a verified petition. If the defendant’s offense is a low-grade felony or misdemeanor, a hearing on their detention must be held within 24 hours of their first appearance before a judge, 48 hours for more serious offenses.

A couple of years ago, California enacted Senate Bill 10, a law that abolished cash bail in favor of a computer-based “risk assessment” model. Last fall, California voters rejected Senate Bill 10.

The legislature immediately got to work on a revised bail reform measure. The result is Senate Bill 262 and Assembly Bill 329. The new legislation will set bail at zero for misdemeanors and “low-level felonies,” and require that bail money be refunded if an accused makes all court appearances, charges are dropped or the case is dismissed, reported the Courthouse News Service.

Unfortunately, not all reform is good. New York’s effort at bail reform has fallen flat. The empire state’s legislation eliminated judicial discretion and limited prosecutors’ arguments for detention to only the risk of flight - not dangerousness. New York City Police Commissioner Dermot Shea has blamed the new bail law for a sharp rise in serious crimes.

Reform can reverse the detrimental impact monetary bond has on families, employment and the viability of neighborhoods and communities disproportionately affected by the criminal justice system. It appears that some states have found the balance between public safety and the efficient operation of the criminal court system - more states should take heed.

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

To visit the column CLICK HERE

Friday, January 29, 2021

A icy scoop of perspective on Qualified Immunity

 Here is what Ben Cohen of Ben & Jerry’s Ice Cream wrote about Qualified Immunity in the USA Today:

For a society based on the rule of law, the de facto reality that police officers are often treated as if they are above the law is repulsive.

Protections for cops are baked into our system, and the inability to get around them makes seeking justice virtually impossible.

The so-called Law Enforcement Officers' Bill of Rights, for example, often trumps the real Bill of Rights. Adopted in a number of states, the law offers protections for officers who are under investigation.

Some police contracts allow bad cops who are being investigated up to 30 days before they are questioned, giving them ample time to concoct dubious, hide-saving stories. This treatment is especially absurd when compared with how regular folks accused of violating the law are investigated. Once they are apprehended, they are immediately submitted to intense, often disorienting questioning.

But perhaps the most egregious of all protections is qualified immunity. It saves law enforcement officers from lawsuits, some of which stem from excessive force cases that have resulted in brutality or death.Disproportionately, the people cops are brutalizing are people of color.

Police unions claim that if they end qualified immunity in order to hold bad cops accountable for brutal violations, they won’t be able to hire enough good officers. That makes zero sense. Do police academies really want to attract the sort of person who is unwilling to be held accountable for their actions? Is this the kind of individual we want patrolling our neighborhoods, sporting a badge, brandishing weapons? Absolutely not.

And that's why I have joined more than 1,500 athletes, artists, politicians and business leaders — including rapper and activist Killer Mike and R&B singer Aloe Blacc — in the Campaign to End Qualified Immunity

In the words of Supreme Court Justice Sonia Sotomayor, qualified immunity is a license to "shoot first and think later." It all too frequently allows police officers to shoot unarmed Black people in the back and get away with it.

Here's how it works: If a cop commits a particular constitutional violation but is not held to account for it, another cop who commits a similar constitutional violation also likely will not be. In other words, the violation must already be established by a previous case — a nearly impossible hurdle.

Ending qualified immunity will send a clear message: Nobody, not even law enforcement, is above the law.

It’s disgraceful that the police unions would go to such tiresome lengths to protect murky cops who abuse their privileges. It’s not only harmful to the public, whose mistrust of law enforcement is at an all-time high, but these practices are also detrimental to the reputation of good cops who are honest people doing difficult and important work.

We can’t simply pick and choose who’s accountable and who isn’t based on status and power. In a truly just society, everyone is required to operate on an even playing field.

Personal accountability is a condition of employment for any employee, in any line of work. It’s a basic principle in the rule of conduct.

And its application is especially crucial when it comes to the one class of employee whom we civilians entrust to use lethal force in our name and with our money.  

We want our police to think twice before they beat somebody up or fire their guns. And whenever a cop doesn’t, and his actions result in unlawful damage, we also demand that there are consequences.

To read more CLICK HERE

Thursday, January 28, 2021

Portland's police violence team stop blacks 52% of time

Black people made up 52% of the Portland police Gun Violence Reduction Team’s stops in 2019, according to data released by the Oregonian. Blacks make up about 6% of the city’s population. 

Across the Portland Police Bureau, officers were significantly more likely to stop a driver for non-traffic violations if the driver was Black. Black motorists also were more likely to be searched, yet less likely than whites to be found with contraband, according to bureau reports.

With its release of the 2019 stop data, the bureau announced plans to improve its collection of information surrounding police stops of both motorists and pedestrians by adding reasons for the stops in future reports -- a recommendation that’s been made repeatedly in past years, most recently in January by a community group that oversees federally mandated bureau reforms.

Police also plan to start training officers to use an audio recording app any time officers ask for someone’s consent to search their person or their car.

“Stops data helps us realize overrepresentation in the criminal justice system still exists,” said Police Chief Chuck Lovell. “It’s important to continue to enhance the data collection process to give us a better understanding of the context of stops, searches and arrests. We will continue to incorporate these system changes, policy changes and training, including how to better capture consent searches.”

The City Council in June disbanded the bureau’s Gun Violence Reduction Team amid a groundswell of calls for police reforms that swept the U.S. after the death of George Floyd, a Black man who died May 25 after a Minneapolis police officer knelt on his neck, and complaints that the team was targeting a disproportionate number of Black people.

In 2019, the gun enforcement team stopped 1,605 drivers and pedestrians , accounting for about 5% of all documented stops in the police bureau. The team’s officers reported making about six stops per workday.

Black drivers and pedestrians made up 52% of the team’s stops, compared to white drivers and pedestrians, who made up 32% of the team’s stops.

The bureau pointed out that 80% of the team’s stops were within a quarter-mile of a shooting.

The chief said he realizes the Police Bureau’s stops create fear and distrust and are inconvenient.

“We want to make sure the stops are well-reasoned and fair and proportionate,” Lovell said.

The chief said that he recognizes that Black people are overrepresented in the gun violence team’s stops, but he said they also are overrepresented as victims of gun violence.

“The numbers are the numbers,” the chief said, adding, “but there’s a context to those numbers” that he doesn’t think many people fully understand.

Portland police across the city stopped 33,035 drivers in 2019 -- a 12% increase from the previous year -- with the most stops occurring in East Precinct.

The bureau examined stops made by traffic officers separate from stops made by all other officers, including patrol officers and investigators.

To read more CLICK HERE


Wednesday, January 27, 2021

An interview with Los Angeles District Attorney George Gascon

An interview with Los Angeles District Attorney George Gascon by the Christian Science Monitor.

Mr. Gascón, a former LA beat cop who later served as San Francisco’s police chief and its top prosecutor, remains undaunted. He won election in November on the strength of his reform agenda – defeating a more traditional, “tough-on-crime” incumbent – and belongs to the growing ranks of progressive prosecutors who have vowed to reimagine criminal justice in America.

The Monitor spoke with Mr. Gascón about the human and financial costs of mass incarceration, the effect of George Floyd’s death on reform efforts, and his quest to “raise the integrity” of the criminal justice system. This interview has been edited and condensed.

You campaigned on a platform of change across a range of issues. What principles inform your overall philosophy?

The direction I want the office to take is deeply rooted in the belief that people can be rehabilitated and redemption is possible. Offering people a path to redemption is not only the humane thing to do but it’s the right thing to do for our public safety.

We have a system that – especially in the last few decades – has been very heavily leaning on the punitive side of criminal justice, and we have seen over and over again very high rates of recidivism, which creates more crime and more victims. We’ve also seen this punishment-based approach take funding and resources away from all the other services that create more sustainable, more livable communities – public health, education, public housing, social services. All those areas have suffered the consequences of our very heavy-handed, very punitive, very carceral approach to our work.

What was the impact of George Floyd’s death and the ensuing racial justice protests last year on the political fortunes of progressive prosecutors?

There’s no question that the message that myself and others have been talking about for years started all of a sudden to resonate with a broader segment of our population. George Floyd’s murder shocked the conscience of this country, including in many places where people perhaps were not thinking about these issues. And Black Lives Matter has crystallized the inequities and the inherent racism in so many parts of our community, and has made those issues a mainstream conversational item. The movement for progressive prosecutors has certainly benefited from this moment in history.

The emphasis on victims’ rights in recent decades has contributed to longer prison sentences. Are you trying to reset the balance in weighing the rights of defendants?

District attorneys are the people’s lawyers. We’re not the lawyer for one group over another. When we’re talking about victims, yes, we are there to represent the victim, but we’re not there to effect vengeance in the name of one victim.

So it’s really having that very deep conversation with yourself as a prosecutor and as an office, and understanding that we’re the people’s lawyers. That means the people, plural, not one single individual or one class of people. We’re impacting our entire community – including, frankly, the person who is being accused. We have a responsibility to that person as well as his or her family in the community.

That brings up something you mentioned during your swearing-in – your desire to “reinvigorate the presumption of innocence.” What do you mean by that?

The single-dimensional approach to quote-unquote “protecting the victim’s rights” often ignores our obligation to due process and the constitutional concept of presumed innocence. We often have thrown that out the door as prosecutors and basically said, “That’s not our work, that’s the work of the defense.” And we know that [public] defense in this country is thoroughly underfunded, and that’s why we have so many wrongful convictions.

We need to start thinking clearly that, as the people’s lawyer, we’re supposed to be protecting everybody – not only the victim that is here with you but also future victims as well as the person that is accused and the rest of our community. We have a moral imperative to represent the entire community.

The estimated cost of mass incarceration in the US exceeds $180 billion a year, and LA’s public protection budget is $9.3 billion. How might the reforms you’re pursuing reduce that spending?

The biggest problem in the criminal justice system is that most people only see the front-end costs – the budget of the DA’s office or the police department, which are high enough as they are. But what is often not seen are the downstream consequences of our work.

When the district attorney seeks to send someone to prison for five or 10 or 20 years, there are financial and resource costs for every year of that sentence. If you can fix the problem in five years but you send someone to prison for 15 or 20, what you’re doing is extending the financial impact. In a county like LA, you’re dealing with thousands and thousands of people – we have over 100,000 cases every year – and when you start sending thousands of people to prison, you are actually writing billion-dollar checks for future generations to pay.

What’s the purpose of the case review you ordered beyond the possible effect on individual inmates?

One of the problems we’ve seen is the lack of legitimacy of the criminal justice system in many parts of our communities, for many good reasons: the excesses of policing, especially in African American communities and other communities of color; the impact of over-incarceration in some parts of our population that clearly has racial overtones.

So for us to take a step back and say, “We’re going to see whether we got it right, and if we didn’t, we’re going to admit it” – it starts to bring a new level of credibility in communities that, quite frankly, believe that we’re not there for them. It also offers an opportunity for us as prosecutors and as a criminal justice system to open up to our communities and say, “We’re willing to rethink what we did before.” And whether we may have been right or perhaps in some cases wrong – either way, we’re willing to reconsider and reevaluate. When you do that, you raise the integrity of the system overall.

To read more CLICK HERE


Tuesday, January 26, 2021

Criminal justice practitioners celebrate the return of science

President Joe Biden has announced that #ScienceIsBack, reported the Intercept. Among those using the hashtag was Eric Lander, a mathematician and molecular biologist who played a lead role in mapping the human genome, and whom Joe Biden had just nominated to be director of the White House Office of Science and Technology Policy.

“Tremendously excited to work alongside so many bright minds to advise the President-elect and push the boundaries of what we dare to believe is possible,” Lander posted on January 15. “We need everyone. #ScienceIsBack.”

This isn’t the first time Lander has been tapped to advise the White House; under former President Barack Obama, Lander served as co-chair of the President’s Council of Advisers on Science and Technology. During his tenure, Lander was involved in 39 reports the group wrote on a wide variety of topics, including antibiotic resistance, big data and privacy, and climate change.

While Lander’s career has not been without controversy, his role in a September 2016 report has many in the criminal legal system hopeful about his return to the White House. That fall, PCAST did not mince words, concluding that a host of long-used pattern-matching forensic practices lacked sufficient scientific underpinning. “Neither experience, nor judgment, nor good professional practices … can substitute for actual evidence of foundational validity and reliability,” the members wrote. “It is an empirical matter for which only empirical evidence is relevant.”

After four years of the Trump administration, which saw federally driven efforts at reforming forensics grind to a halt, many hope that having Lander and other well-respected scientists in key policy positions will reinvigorate those initiatives. “He knows the challenges we face scientifically and operationally,” said Max Houck, a forensic expert with the Global Forensic and Justice Center at Florida International University and the editor-in-chief of an international forensics journal. “I think when he gets around to addressing issues in forensic science, at least he does it with foreknowledge.”

Save for DNA analysis, forensic science disciplines were mainly developed according to the needs of law enforcement — bereft of scientific underpinning. That’s particularly true of so-called pattern-matching practices like fingerprint analysis, firearm analysis, bite-mark analysis, shoe tread analysis, and handwriting analysis, all of which involve an “expert” looking at a piece of evidence and visually tying it to a suspect.

PCAST was not the first body to point out the lack of scientific foundation to these practices. In 2009, the National Academy of Sciences released a landmark study titled “Strengthening Forensic Science in the United States: A Path Forward,” which questioned the basis of nearly every forensic discipline used to arrest, prosecute, and send people to prison. With the exception of DNA analysis, it found, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

The release of the NAS report led to massive upheaval in the forensics community, a seismic disruption that is still playing out. Many practitioners — including in the fingerprint community — embraced the criticisms of the NAS and quickly set on a course to shore up their practices. Others, like the forensic dentists who continue to peddle bite-mark analysis, were defiant, claiming that their practices were invaluable and reliable — notwithstanding more than 30 wrongful convictions based on bite-mark evidence.

It was amid this backdrop that the Obama administration got to work. In 2013, the Department of Justice formed the National Commission on Forensic Science to “enhance the practice and improve the reliability of forensic science.” In February 2016, at the annual meeting of the American Academy of Forensic Sciences, then-Deputy Attorney General and forensics commission co-chair Sally Yates announced that the Justice Department would be conducting a “stress test” on various disciplines performed in the FBI lab as a means to ensure the “public’s ongoing confidence in the work we do.”

Some six months later, PCAST issued its report. Its conclusions were in line with the NAS report, but PCAST was more blunt about the need for rigorous scientific testing of pattern-matching practices: “Without appropriate estimates of accuracy, an examiner’s statement that two samples are similar — or even indistinguishable — is scientifically meaningless: It has no probative value and considerable potential for prejudicial impact.”

The pushback, even within the Obama administration, was swift. Attorney General Loretta Lynch suggested that the Justice Department would ignore PCAST’s conclusions; the FBI balked, saying the conclusions were overbroad. A crime lab industry trade and lobbying group claimed that members of PCAST were biased. The National District Attorneys Association made wild-eyed claims that seemed to miss the point of the report entirely, including that the maligned forensic practices were “reliably used every day” and the recommendations for reform were “scientifically irresponsible.”

As it turned out, the prosecutors and industry groups had little to fear. The momentum toward reform was stopped in its tracks when Trump assumed office and tapped Sen. Jeff Sessions to take over as attorney general. A former prosecutor, Sessions had made his position clear when responding to the NAS report back in 2009, with a bit of his own misleading language. “I don’t think we should suggest that those proven scientific principles that we’ve been using for decades are somehow uncertain,” he said.

Sessions quickly put an end to the National Commission on Forensic Science and installed Kansas City, Missouri, prosecutor Ted Hunt as the head of a mysterious forensics working group that never appeared to do much at all. The planned FBI stress test never happened. Trump didn’t bother to appoint a director of science policy until nearly two years after taking office (he appointed a meteorologist), and he didn’t enlist PCAST until November 2019; in all, the group met just four times.

Of course, to say that the Trump administration did nothing on forensics isn’t entirely true. On January 13, the Justice Department posted a 26-page statement responding to the 2016 PCAST report. While there is no author attached, it reflects statements that Hunt, Sessions, and other critics of reform have previously made. (The Justice Department did not respond to questions about who authored the statement and whether it was reviewed by experts either inside or outside the department.)

The critique, four years later, asserts that pattern-matching practices are based on subjective eyeballing of evidence by technical experts and as such don’t belong to the branch of science known as metrology (the study of measurement). That’s just fine, the statement argues, and shouldn’t have any bearing on whether the techniques are admissible in court.

“The argument is that because [forensic practitioners] take no measurements — a fundamental tenant of science — the PCAST critique is irrelevant because pattern matching techniques are not part of metrology; eyeballing the evidence is good science, in other words,” Chris Fabricant, director of strategic litigation at the Innocence Project, wrote in an email to The Intercept. “It’s like arguing that because my airplane doesn’t have wings, it’s immune from the laws of thermodynamics.”

Ultimately, Fabricant wrote, posting the statement just seven days before the end of the Trump presidency sends a singular message: “It seems an effort to draw a line in the sand on the way out the door: Progress stops here.”

In addition to heading up the Office of Science and Technology Policy, Lander was also nominated to serve as presidential science adviser, which Biden is elevating to a Cabinet position. In a three-page letter to Lander, Biden laid out five broad questions that he’d like his science advisers to address in order to ensure a “healthier, safer, more just, peaceful, and prosperous world.” While there are certainly pressing matters to focus on — the pandemic, the climate crisis — reforming forensics would fit within the goals that Biden has expressed.

Indeed, as a member of the Innocence Project’s board of directors, Lander no doubt understands the human cost of continuing to use faulty forensic practices.

To date, flawed forensics have led to hundreds of wrongful convictions. Roughly a quarter of the more than 2,700 cases in the National Registry of Exonerations involved faulty or misleading forensic evidence; forensic errors have been implicated in about half of the more than 500 exonerations based on DNA testing.

Peter Stout, president and CEO of the Houston Forensic Science Center, one of the nation’s only independent public sector crime labs, says the challenges around forensic science are nuanced and include the fact that forensics have never had a true home in the federal government. To date, the federal government’s modest support for forensics has generally been through its law enforcement arms, which the NAS report concluded left labs and practitioners vulnerable to bias. Instead, the NAS suggested that a “new, strong, and independent entity” should be created that could help with standards, research, and funding for the nation’s disaggregated forensics community.

That hasn’t happened, but Stout says he’s encouraged that with “legitimate scientists” being appointed to Biden’s administration, there may come an “opportunity for a realistic discussion about what really is going to have to happen and the number of dollar signs that go with that.”

In addition to Lander, Biden has tapped other renowned scientists to head up his administration’s efforts to inject science into the major policy decisions ahead, including Alondra Nelson, president of the Social Science Research Council and a professor at Princeton, who was nominated to become deputy director for science and society at the Office of Science and Technology Policy.

“Sound science will touch every aspect of what the Biden Administration does — from new policy, to addressing social inequality, to the implications of new technologies,” Nelson posted to Twitter on January 15. “Inclusive and trustworthy science will have a place in government.”

Quick to respond was C. Michael Bowers, a forensic dentist in California who was among the first to sound the alarm about problems with his colleagues’ bite-mark analysis. He has since become an outspoken critic of the practice and has worked to exonerate people convicted on the basis of bite-mark evidence. “Please work unreliable forensics into your agenda,” he wrote. “It will save lives.”

To read more CLICK HERE

Monday, January 25, 2021

Virginia on the verge of outlawing death penalty

 Virginia, a state that has executed more prisoners than any other in the country, appears poised to eliminate the death penalty — a seismic shift for the state legislature, which just five years ago looked to the electric chair and secret pharmaceutical deals to keep the ultimate punishment alive, reported the Washington Post.

The former capital of the Confederacy would become the first Southern state to abolish capital punishment if a bill on track to pass the Senate gets out of the House and over to the desk of Gov. Ralph Northam (D), who has promised to sign it.

A ban in Virginia could help sweep in change across the South, according to experts who say racial disparities in the death penalty’s application have roots in the region’s history of slavery and Jim Crow segregation.

“Just as Confederate monuments are being dismantled, this vestige of Confederate law is also facing dismantling,” said Robert Dunham, executive director of the Death Penalty Information Center. “That historical context is a central part of the repeal. And repeal offers a real opportunity for racial healing.”

As recently as last year, as Democrats took full control in Richmond for the first time in a generation and ushered in vast changes on many fronts, efforts to ban or restrict the death penalty sputtered.

Bills to ban execution failed. A more modest effort, to prohibit it in cases of severe mental illness, cleared the Senate with hefty bipartisan support. But a House subcommittee led by a Democratic prosecutor let that and other death penalty bills die without a hearing.

This year, with the outgoing governor making abolition a priority, the same prosecutor, Del. Michael P. Mullin (D-Newport News), is sponsoring a bill to scrap capital punishment entirely.

 “I think the prospects are excellent that we’re going to end the death penalty in 2021,” said Mullin, a criminal prosecutor for the city of Hampton who heads the subcommittee that hears proposals to change the criminal code.

Mullin’s bill has not advanced yet, but a version sponsored by Sen. Scott Surovell (D-Fairfax) has cleared one Senate committee and is expected to pass a second, which will review its fiscal impact. The measure appears to have the votes to pass the full Senate.

While Mullin credits Northam’s leadership for the change, death penalty experts say Virginia’s effort dovetails with a national shift away from executions, in both law and practice.

Advances in DNA technology, which have exposed 174 wrongful death row convictions since 1973, have prompted some states to ban the practice over time. More recently, remaining death penalty states have struggled to carry out executions because of a scarcity of lethal injection drugs.

The abolition movement has taken hold in Virginia amid calls for racial justice. Nationally, non-Whites account for a disproportionate 55 percent of inmates on death row, according to the American Civil Liberties Union.

Video of George Floyd, an unarmed Black man, dying under the knee of a White police officer in Minneapolis in May led to protests and criminal justice overhauls in Virginia and across the nation. Images of mostly White supporters of President Donald Trump storming the Capitol this month with limited pushback from police illustrated, for some, how racial bias warps the administration of justice.

Those events could boost the repeal efforts in Virginia, as well as the broader criminal justice overhaul that Democrats began in a summertime special session and continue to push in the regular session that began this month. But a handful of other bills could cost Democrats some GOP support.

Sen. William M. Stanley (R-Franklin), a longtime execution foe, signed on as a chief co-sponsor of Surovell’s bill and voted for it in committee Monday. But Stanley said he will yank his support if the legislature votes to eliminate mandatory minimum sentences. He wants the death penalty to go away, but only if the worst offenders receive mandatory life sentences, with no chance for parole.

 “If there’s somebody who murders multiple people or a cop, they should never see the light of day,” he said. “You can say, ‘Life without parole,’ and then [with] no mandatory minimum, it defeats the whole purpose.”

If the Democrats who control the House and Senate stick together, they do not need GOP votes to abolish the death penalty. But Democrats might benefit politically from a bipartisan vote, since that would make it harder for Republicans, who have leaned heavily on law-and-order issues in this year’s gubernatorial race, to use abolition to paint them as soft on crime.

Last year, the 28 states that have the death penalty carried out a combined 17 executions, a 37-year low. That drop was attributed in part to the coronavirus pandemic, as officials deemed executions a health risk for those involved. But the pace had been slowing even before the health crisis, in large part due to the unavailability of lethal injection drugs.

At the same time, the Trump administration went in the opposite direction, resuming federal executions after a 17-year pause. In Trump’s final six months, the federal government carried out 13.

The death penalty has had a strong connection to the commonwealth’s history of racial injustice. State law used to differentiate capital and non-capital crimes based on the race of the perpetrator and the race of the victim. Once that discrimination was declared unconstitutional, it persisted in practice due to the discretion afforded all-White juries, said Dunham, of the Death Penalty Information Center.

From 1900 to 1969, he said, Virginia did not execute a single White person for any offense that did not result in death, while 73 Black men were executed for rape, attempted rape or robbery.

State Sen. Scott Surovell (D-Fairfax) believes his bill to eliminate the death penalty in Virginia has enough support to pass the state Senate. (Bob Brown/AP)

Those disparities persist, Surovell said.

“You’re more likely to get charged with a capital crime and found guilty of one if you’re a minority, suffer from mental illness, you’re low-income, you’ve got diminished intellectual capacity, or if you kill a White person and you’re not White,” he said.

Surovell said that with the death penalty still on the books, Virginia is “out of step with the rest of the world.”

“The countries that are still utilizing this punishment are places like Pakistan, Saudi Arabia, Egypt, China and, for a while, [the Islamic State],” he said. “Most Western industrialized democracies have moved on.”

Colorado eliminated the death penalty last year, becoming the 22nd state to do so. The trend has been spreading toward Virginia, from New England down the Atlantic Coast to Delaware and neighboring Washington, D.C., and Maryland, which abolished the death penalty in 2013. But until recently, Virginia lawmakers seemed content to buck it.

The Republicans who controlled the state House and Senate in 2016 passed a bill that would make the electric chair Virginia’s default method of execution. Under the law then, as now, condemned inmates can choose the method of execution: lethal injection or the chair. (The last inmate to pick electrocution in Virginia was Robert Gleason Jr. in 2013.)

In 2016, execution drugs had become scarce, with pharmaceutical companies pressured by death penalty foes to stop selling them. The bill would have let the state use the electric chair when it could not obtain the drugs. When it got to the desk of then-Gov. Terry McAuliffe, the Democrat called it “reprehensible” and gutted the bill, but in a way that allowed the state to carry on with executions by specially ordering execution drugs from compounding pharmacies. The pharmacies’ identities were to be kept secret to shield them from political pressure.

The plan was controversial not only among death penalty opponents but also among right- and left-wing critics of government secrecy. But it passed with help from conservative Democrats and became law.

Newly empowered Democrats repealed that law last year. But that was the only action they took on the death penalty over the course of a 65-day regular session and a marathon 84-day special session called, in part, to address racial injustice.

As the once solidly conservative state has become more urbanized, racially diverse and socially liberal, opposition to capital punishment has shifted from a political liability to a potential asset. McAuliffe won the governor’s race in 2013 on a promise to uphold executions as a matter of state law, despite his personal opposition as a Catholic. This year, he and every other Democrat running for governor are calling for abolition of the death penalty.

The shift against the death penalty has not been welcomed by law enforcement groups. Wayne Huggins, executive director of the Virginia State Police Association, said repealing the death penalty would be an insult to the families of slain officers, particularly if paired with bills to reinstate parole and eliminate mandatory minimums.

“From our perspective, it’s injustice,” Huggins, who testified against the bill Monday, said later in an interview. “It sends a terrible message to society in general and the law enforcement community in particular.”

But some of the state’s prosecutors, who have traditionally sided with law enforcement on the death penalty, have lined up this year in favor of repeal.

Attorney General Mark R. Herring (D), who as a state senator in 2007 also voted for the “triggerman” expansion, is advocating repeal as he seeks a third term this year. Surovell’s bill also has support from about a dozen of the state’s commonwealth’s attorneys, who last summer formed the group Virginia Progressive Prosecutors for Justice and represent 40 percent of the state’s population.

In some ways, the political shifts are only catching up with public sentiment. A November 2019 Gallup poll found that for the first time in 34 years, a majority of Americans said life imprisonment with no possibility of parole was a better punishment for murder than the death penalty.

No jury in Virginia has imposed a death sentence since 2011. The state has not executed anyone since 2017, when it put two people to death.

Senate Majority Leader Richard L. Saslaw (D-Fairfax), a longtime death penalty supporter, still backs its use for mass murderers. But he had no reservations about voting for Surovell’s bill in committee Monday because the death penalty is effectively all but gone in Virginia anyway.

“There’s only two people on death row; juries are just not handing out the sentences anymore,” he said. “That option’s not there right now.”

Sen. Chap Petersen (D-Fairfax City) first won election to the legislature 20 years ago, as a wave of sniper shootings had terrorized the Washington region — crimes that led him to believe “there are times when the death penalty can be an option.”

Yet he, too, voted for Surovell’s bill in committee. Petersen said he got on board with abolition this year not because of any shift in his personal beliefs, but because he knows that’s what his changing Northern Virginia district clearly wants.

“I don’t change my opinion on a lot of issues,” he said. “But on that one, I bowed to an emerging social consensus.”

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Sunday, January 24, 2021

Trump and a little known Justice Department lawyer attempted to overthrow the election

Former President Donald Trump and a little known Justice Department lawyer, Jeffrey Clark, attempted to force out Acting Attorney General Jeffrey A. Rosen in order to overthrow the election. A bloodless coup d'etat that nearly toppled the government, according to The New York Times.

The Justice Department’s top leaders listened in stunned silence this month: One of their peers, they were told, had devised a plan with President Donald J. Trump to oust Jeffrey A. Rosen as acting attorney general and wield the department’s power to force Georgia state lawmakers to overturn its presidential election results.

The unassuming lawyer who worked on the plan, Jeffrey Clark, had been devising ways to cast doubt on the election results and to bolster Mr. Trump’s continuing legal battles and the pressure on Georgia politicians. Because Mr. Rosen had refused the president’s entreaties to carry out those plans, Mr. Trump was about to decide whether to fire Mr. Rosen and replace him with Mr. Clark.

The department officials, convened on a conference call, then asked each other: What will you do if Mr. Rosen is dismissed?

The answer was unanimous. They would resign.

Their informal pact ultimately helped persuade Mr. Trump to keep Mr. Rosen in place, calculating that a furor over mass resignations at the top of the Justice Department would eclipse any attention on his baseless accusations of voter fraud. Mr. Trump’s decision came only after Mr. Rosen and Mr. Clark made their competing cases to him in a bizarre White House meeting that two officials compared with an episode of Mr. Trump’s reality show “The Apprentice,” albeit one that could prompt a constitutional crisis.

The previously unknown chapter was the culmination of the president’s long-running effort to batter the Justice Department into advancing his personal agenda. He also pressed Mr. Rosen to appoint special counsels, including one who would look into Dominion Voting Systems, a maker of election equipment that Mr. Trump’s allies had falsely said was working with Venezuela to flip votes from Mr. Trump to Joseph R. Biden Jr.

This account of the department’s final days under Mr. Trump’s leadership is based on interviews with four former Trump administration officials who asked not to be named because of fear of retaliation.

Mr. Clark said that this account contained inaccuracies but did not specify, adding that he could not discuss any conversations with Mr. Trump or Justice Department lawyers because of “the strictures of legal privilege.” “Senior Justice Department lawyers, not uncommonly, provide legal advice to the White House as part of our duties,” he said. “All my official communications were consistent with law.”

Mr. Clark categorically denied that he devised any plan to oust Mr. Rosen, or to formulate recommendations for action based on factual inaccuracies gleaned from the internet. “My practice is to rely on sworn testimony to assess disputed factual claims,” Mr. Clark said. “There was a candid discussion of options and pros and cons with the president. It is unfortunate that those who were part of a privileged legal conversation would comment in public about such internal deliberations, while also distorting any discussions.”

Mr. Clark also noted that he was the lead signatory on a Justice Department request last month asking a federal judge to reject a lawsuit that sought to pressure Vice President Mike Pence to overturn the results of the election.

Mr. Trump declined to comment. An adviser said that Mr. Trump has consistently argued that the justice system should investigate “rampant election fraud that has plagued our system for years.”

The adviser added that “any assertion to the contrary is false and being driven by those who wish to keep the system broken.” Mr. Clark agreed and said that “legal privileges” prevented him from divulging specifics regarding the conversation.

A Justice Department spokesman declined to comment, as did Mr. Rosen.

When Mr. Trump said on Dec. 14 that Attorney General William P. Barr was leaving the department, some officials thought that he might allow Mr. Rosen a short reprieve before pressing him about voter fraud. After all, Mr. Barr would be around for another week.

Instead, Mr. Trump summoned Mr. Rosen to the Oval Office the next day. He wanted the Justice Department to file legal briefs supporting his allies’ lawsuits seeking to overturn his election loss. And he urged Mr. Rosen to appoint special counsels to investigate not only unfounded accusations of widespread voter fraud, but also Dominion, the voting machines firm.

 (Dominion has sued the pro-Trump lawyer Sidney Powell, who inserted those accusations into four federal lawsuits about voter irregularities that were all dismissed.)

Mr. Rosen refused. He maintained that he would make decisions based on the facts and the law, and he reiterated what Mr. Barr had privately told Mr. Trump: The department had investigated voting irregularities and found no evidence of widespread fraud.

But Mr. Trump continued to press Mr. Rosen after the meeting — in phone calls and in person. He repeatedly said that he did not understand why the Justice Department had not found evidence that supported conspiracy theories about the election that some of his personal lawyers had espoused. He declared that the department was not fighting hard enough for him.

As Mr. Rosen and the deputy attorney general, Richard P. Donoghue, pushed back, they were unaware that Mr. Clark had been introduced to Mr. Trump by a Pennsylvania politician and had told the president that he agreed that fraud had affected the election results.

Mr. Trump quickly embraced Mr. Clark, who had been appointed the acting head of the civil division in September and was also the head of the department’s environmental and natural resources division.

As December wore on, Mr. Clark mentioned to Mr. Rosen and Mr. Donoghue that he spent a lot of time reading on the internet — a comment that alarmed them because they inferred that he believed the unfounded conspiracy theory that Mr. Trump had won the election. Mr. Clark also told them that he wanted the department to hold a news conference announcing that it was investigating serious accusations of election fraud. Mr. Rosen and Mr. Donoghue rejected the proposal.

As Mr. Trump focused increasingly on Georgia, a state he lost narrowly to Mr. Biden, he complained to Justice Department leaders that the U.S. attorney in Atlanta, Byung J. Pak, was not trying to find evidence for false election claims pushed by Mr. Trump’s lawyer Rudolph W. Giuliani and others. Mr. Donoghue warned Mr. Pak that the president was now fixated on his office, and that it might not be tenable for him to continue to lead it, according to two people familiar with the conversation.

That conversation and Mr. Trump’s efforts to pressure Georgia’s Republican secretary of state to “find” him votes compelled Mr. Pak to abruptly resign this month.

Mr. Clark was also focused on Georgia. He drafted a letter that he wanted Mr. Rosen to send to Georgia state legislators that wrongly said that the Justice Department was investigating accusations of voter fraud in their state, and that they should move to void Mr. Biden’s win there.

Mr. Rosen and Mr. Donoghue again rejected Mr. Clark’s proposal.

On New Year’s Eve, the trio met to discuss Mr. Clark’s refusal to hew to the department’s conclusion that the election results were valid. Mr. Donoghue flatly told Mr. Clark that what he was doing was wrong. The next day, Mr. Clark told Mr. Rosen — who had mentored him while they worked together at the law firm Kirkland & Ellis — that he was going to discuss his strategy with the president early the next week, just before Congress was set to certify Mr. Biden’s electoral victory.

Unbeknown to the acting attorney general, Mr. Clark’s timeline moved up. He met with Mr. Trump over the weekend, then informed Mr. Rosen midday on Sunday that the president intended to replace him with Mr. Clark, who could then try to stop Congress from certifying the Electoral College results. He said that Mr. Rosen could stay on as his deputy attorney general, leaving Mr. Rosen speechless.

Unwilling to step down without a fight, Mr. Rosen said that he needed to hear straight from Mr. Trump and worked with the White House counsel, Pat A. Cipollone, to convene a meeting for early that evening.

Even as Mr. Clark’s pronouncement was sinking in, stunning news broke out of Georgia: State officials had recorded an hourlong call, published by The Washington Post, during which Mr. Trump pressured them to manufacture enough votes to declare him the victor. As the fallout from the recording ricocheted through Washington, the president’s desperate bid to change the outcome in Georgia came into sharp focus.

Mr. Rosen and Mr. Donoghue pressed ahead, informing Steven Engel, the head of the Justice Department’s office of legal counsel, about Mr. Clark’s latest maneuver. Mr. Donoghue convened a late-afternoon call with the department’s remaining senior leaders, laying out Mr. Clark’s efforts to replace Mr. Rosen.

Mr. Rosen planned to soon head to the White House to discuss his fate, Mr. Donoghue told the group. Should Mr. Rosen be fired, they all agreed to resign en masse. For some, the plan brought to mind the so-called Saturday Night Massacre of the Nixon era, where Attorney General Elliot L. Richardson and his deputy resigned rather than carry out the president’s order to fire the special prosecutor investigating him.

The Clark plan, the officials concluded, would seriously harm the department, the government and the rule of law. For hours, they anxiously messaged and called one another as they awaited Mr. Rosen’s fate.

Around 6 p.m., Mr. Rosen, Mr. Donoghue and Mr. Clark met at the White House with Mr. Trump, Mr. Cipollone, his deputy Patrick Philbin and other lawyers. Mr. Trump had Mr. Rosen and Mr. Clark present their arguments to him.

Mr. Cipollone advised the president not to fire Mr. Rosen and he reiterated, as he had for days, that he did not recommend sending the letter to Georgia lawmakers. Mr. Engel advised Mr. Trump that he and the department’s remaining top officials would resign if he fired Mr. Rosen, leaving Mr. Clark alone at the department.

Mr. Trump seemed somewhat swayed by the idea that firing Mr. Rosen would trigger not only chaos at the Justice Department, but also congressional investigations and possibly recriminations from other Republicans and distract attention from his efforts to overturn the election results.

After nearly three hours, Mr. Trump ultimately decided that Mr. Clark’s plan would fail, and he allowed Mr. Rosen to stay.

Mr. Rosen and his deputies concluded they had weathered the turmoil. Once Congress certified Mr. Biden’s victory, there would be little for them to do until they left along with Mr. Trump in two weeks.

They began to exhale days later as the Electoral College certification at the Capitol got underway. And then they received word: The building had been breached.

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Saturday, January 23, 2021

MCN: COVID outbreaks in prison, trust the science

Matthew T. Mangino
More Content Now
January 22, 2021

Science has demonstrated that large gatherings of people in close proximity to one another can be a breeding ground for COVID-19. The phenomenon known in coronavirus nomenclature as a “superspreader event,” has the potential to sicken large swaths of people.

A well-documented study from the state of Washington examined a single choir practice consisting of 61 choir members wherein a single infected member caused 32 confirmed infections and 20 additional probable cases.

These hot spots were targeted from the earliest days of the pandemic. Nursing homes, sporting events, religious services, indoor dining have been restricted, locked down or closed. Facilities where people congregate or live - often with little or no mitigation measures such as wearing personal protective equipment or keeping socially distanced have been universally recognized as potentially life-threatening.

Yet with similar or worse conditions in the nation’s jails, prisons and detention centers, criminal justice policy makers continue to warehouse inmates. According to NPR, the 2.3 million people incarcerated in the U.S. are nearly five times as likely to test positive for COVID-19 as Americans generally and nearly three times as likely to die.

There have been outbreaks at more than 850 jails and prisons in the country, putting many prisoners incarcerated in the U.S. at risk of infection. Dr. Ross MacDonald, chief physician of New York’s Rikers Island, told TIME in March simply that, “the right preventive measures don’t exist to stop the spread of this virus in (jail and prison facilities)” - 10 months later prison mitigation measures have not improved.

Prisoners live in crowded unsanitary spaces, sharing bathrooms and dining halls where social distancing is impossible. Many inmates have conditions like asthma, diabetes and heart disease - making them particularly vulnerable to the effects of the virus.

To complicate things, mental health problems are rampant in correctional facilities. This makes mask wearing and social distancing virtually impossible.

No one questions whether health care workers who treat COVID-19 patients should be first in line for vaccines. Other high-priority groups include residents and employees of long-term care facilities, essential workers, the old and infirm.

According to a recent nationwide analysis by PEW’s Stateline, state plans for administering vaccines in prisons found wide variations among the states. According to a recent study by the Prison Policy Initiative, a nonprofit research and advocacy group, at least 38 states addressed incarcerated people in their vaccine plans, but most of those states prioritized prison staff over incarcerated people, and 11 states appeared to have no plans for the incarcerated.

“In terms of public health risks and priorities, I think this is straightforward public health assessment and response,” Dr. Thomas Inglesby, director of Johns Hopkins’ Center for Health Security told NPR. “All the conditions that we think about in terms of trying to control COVID, they’re all moving in the wrong direction in these facilities. They are basically the perfect conditions for superspreading events.”

Should prisoners and other detainees be given priority access to COVID-19 vaccines?

New Jersey has begun vaccinating inmates and staff at the state’s largest correctional facility. Seven states - Connecticut, Delaware, Maryland, Massachusetts, Nebraska, New Mexico and Pennsylvania - have designated inmates “Phase One” recipients for vaccines, according to the Stateline.

Obviously, the question of when inmates will receive the vaccine is a mixed bag. According to NPR, states and agencies that control distribution “face political pressure from a general public that has historically been unsympathetic to the health of incarcerated people.”

If Americans are going to accept the science that vaccines are a smart and effective way to deal with COVID-19, they must be willing to accept the science when it comes to who should get the vaccine and when.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.

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Friday, January 22, 2021

PA Rep. Lee to introduce bill to end cash bail across Pennsylvania.

Assigning cash bail to defendants has come under increased scrutiny over the years. In Allegheny County, the practice has Magisterial District Judges forcing defendants who were charged, but not convicted, of a crime to sometimes pay thousands of dollars to avoid time in jail. In the county, bails are doled out at preliminary arraignments, where it can be difficult to have a lawyer, family member, or advocate present. Pittsburgh City Paper wrote about how this can cause a myriad of issues, and how judges can help to end cash bail here: "Advocates fight to end cash bail"

But that’s just per district, and in just one county in Pennsylvania. State Rep. Summer Lee (D-Swissvale) wants to see the practice of cash bail ended all across the commonwealth.

On Jan. 15, Lee introduced a memorandum announcing she will be introducing a bill to end cash bail across Pennsylvania.

“The bail process in Pennsylvania too often centers on an individual’s ability to pay rather than the individual’s risk to public safety,” wrote Lee in the memorandum. “Because it includes no review of one’s ability to pay monetary bail, it frequently assigns cash bail to those who do not have the means to pay for release. This leads to lengthy periods of imprisonment, sometimes years, putting employment, housing, child custody and other means of a stable and productive life at risk.”

If people don’t have the funds to meet their cash bail, they are sent to jail until their hearing and/or trial, even if charges are ultimately dropped or they are found not guilty. Assigning bail to people who can’t afford it often means taxpayers foot the bill of defendants’ time in jail, and Lee’s memorandum says that “even six months of imprisonment can cost taxpayers $20,000.”

Lee’s memorandum also cites the Third US Circuit Court of Appeals, who in 2016 classified Pennsylvania’s system of bail as “a flaw in our system of justice” and “a threat to equal justice under the law.”

On top of that, incarceration rates in jails are high, even before imprisonment for being found guilty of crimes. County jails, like the Allegheny County Jail, hold inmates before trial, while prisons are where people who are sentenced are incarcerated. In Pennsylvania, most prisons are run by the state. Lee’s memorandum cites a 2019 Vera Institute study that shows that 64% of those imprisoned nationally since 2015 are pre-trial detainees.

California, the District of Columbia, and New Jersey have all ended the use of cash bail. This week, Illinois lawmakers passed a bill to end cash bail in their state. Philadelphia has limited the use of cash bail in recent years. 

In a tweet, Lee announced that her memorandum has already attracted the support of many of her colleagues in the state House. National polling from progressive data firm Data for Progress indicates twice as many voters want to end cash bail compared to those who support it.

However, Lee’s push has an uphill climb in Harrisburg, as Republicans control both the state House and the state Senate. Because of this, Republicans rarely, if ever, let Democratic-written bills see votes in the chambers. And even though several Republicans verbally advocate for criminal justice reform, Republican leaders in 2019 altered five bi-partisan criminal justice bills, which caused advocates like the American Civil Liberties Union to drop its support.

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Thursday, January 21, 2021

President Joe Biden's plan for criminal justice reform

During his presidential campaign, Joe Biden promised to end private prisons, cash bail, mandatory-minimum sentencing and the death penalty. Candidate Biden also said the U.S. could reduce its prison population by more than half. While he didn’t put forward as progressive or as detailed a platform as many of his competitors for the Democratic nomination (including his running mate Kamala Harris), Biden has nevertheless, quietly, been elected on the most progressive criminal justice platform of any major party candidate in generations. So what can he actually do?

President Joe Biden will face the same constraints as all incoming presidents after a campaign of big promises. Government moves slowly, time and political capital are limited, and his administration will likely need to prioritize the pandemic and the related economic fallout in the early days. But if he’s serious about tackling criminal justice, here’s what experts say to expect from the Biden administration on key issues.

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Wednesday, January 20, 2021

Book Review: The Cadaver King and the Country Dentist by Radley Balko and Tucker Carrington

Matthew T. Mangino reviews The Cadaver King and the Country Dentist: A True Story of Injustice in the American South by Radley Balko and Tucker Carrington

The Champion Magazine
September/October 2020

Criminal trials nationwide often turn on the testimony of experts who opine about everything from insanity to hair samples. Experts, whether eminently qualified Ivy Leaguers or dubious self-promoters out to make a profit, are often held in high esteem. Their presence in court is marked by great deference, their qualifications expounded upon ad nauseam, often unchallenged by overworked and underpaid public defenders.

            The pernicious influence of the expert witness is a modern phenomenon, not because they didn’t exist in courtrooms of the past, but because they were not so easily detected. The advent of DNA has exposed America to the inadequacies of forensic evidence and therewith the expert who either believes the gibberish she utters in court or, all the more appalling, intentionally misleads for profit.

            Washington Post journalist Radley Balko and Tucker Carrington, a law professor at the University of Mississippi have provided a vivid glimpse into the hocus pocus of forensic evidence in the deep south.  Their book, “The Cadaver King and the Country Dentist,” published by PublicAffairs, Hachette Book Group, is set in Mississippi and examines the wrongful convictions of two men, Kennedy Brewer and Levon Brooks, in two separate child murders in the early 1990s.

            The book is not a suspenseful whodunit, but is gut wrenching nonetheless. Balko and Carrington painstakingly examine the faulty work of two so called experts—Steven Hayne and Michael West—who often collaborated, and dominated the Mississippi death investigation system for nearly 20 years.  During those two decades, virtually every homicide in the state of Mississippi included one or both of them as key prosecution witnesses. 

            Hayne began performing autopsies for the state of Mississippi in about 1987.  Within 20 years, according to Balko and Carrington, he was performing more than 1,800 autopsies a year. The National Association of Medical Examiners recommends that medical examiners perform no more than 250 autopsies per year.

            West was an “expert” in bite mark analysis.  The analysis of bite marks is a class of forensics called pattern matching.  As the authors suggest, pattern matching is “entirely subjective.”

            Balko and Carrington have used the egregious conduct of Hayne and West to demonstrate the pervasive misuse of forensic evidence and expert testimony.

            The authors point to studies that have revealed problems with ballistic, handwriting, tire tread, shoe print, hair and fingerprint analysis.  They point to weaknesses in drug-dogs, drug field tests and even Shaken Baby Syndrome. 

            The authors’ research even revealed a study published in 2013 that found crime labs in many states are paid per conviction. 

            Mississippi is by no means the only state to be outed in recent years regarding faulty forensic analysis. In West Virginia, a single crime lab analyst may be responsible for as many as 134 wrongful convictions.

            In 2005, a Tennessee state medical examiner was found guilty of misconduct. Between 2015 and the publication of Balko and Carrington’s book,  there were crime lab controversies in Houston; Austin; Orlando; San Francisco; Broward County, Florida; and with the Ohio, New Jersey and Oregon state police labs.

            The Cadaver King and the Country Dentist is an expose of the often vaunted role of experts in the criminal justice system.  Although the news is replete with stories of exonerations of men and women who have spent countless years behind bars for crimes they did not commit—it is still almost sacrosanct to speak of holding detectives and prosecutors accountable for permitting such injustices.

            Just as this review was being written, Blako wrote a lengthy article in the Washington Post revealing a conviction and death sentence for a defendant almost certainly innocent. Twenty-two-year-old, Toforest Johnson was convicted of murdering William Hardy in Birmingham, Alabama.

            Johnson was partying at a nightclub called Tee’s Place miles away from the crime scene precisely when Hardy was murdered and his lawyers provided 10 witnesses who saw him at the club. 

            Balko has, and continues to, convincingly point out grievous miscarriages of justice but what is missing from Balko and Carrington’s book is the way forward.  How do we stop rogue lab techs, overzealous criminal investigators and ambitious prosecutors from abusing the system? The problems are clear—the solutions are not.

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