Canadian Supreme Court strikes down national sex offender registry

 The Supreme Court of Canada declared the country’s national sex offender registry unconstitutional. Section 490.012 of Canada’s Criminal Code requires mandatory registration on a national sex offender registry, and section 490.013 requires lifetime registration for offenders convicted of two or more sexual offenses, reported Jurist. The court found the criminal statutes violate Section 7 of Canada’s Charter of Rights and Freedoms, which provides “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The court found that because “[the statutes] require the registration, sometimes for life, of offenders who demonstrate no increased risk of reoffending, they threaten the liberty interests of offenders in a manner which is overbroad.” The court found that “75 to 80 percent [of people convicted of sex offences] never reoffend” and that “registration has a serious impact on the freedom of movement and of fundamental choices of people who are not at an increased risk of re‑offending.”

The declaration of invalidity for section 490.013(2.1) will take effect immediately, while the declaration of invalidity for section 490.012 will take effect in one year. Eugene Ndhlovu, the petitioner, was also granted an exemption from the registry.

To read more CLICK HERE

Federal judge attacks qualified immunity as 'ill-founded, court-made doctrine'

Guido Calabresi, a senior judge on the U.S. Second Circuit Court of Appeals and former dean of Yale Law School, argues that Congress and the Supreme Court should end qualified immunity, reports Nick Sibilla for Forbes. 

Calabresi called qualified immunity an “ill-founded, court-made doctrine,” according to The Crime Report.

Qualified immunity shields officers and the government from civil suits unless someone’s clearly established rights were infringed, which is difficult to prove.

The judge mentioned a comprehensive survey by UCLA Law Professor Joanna Schwartz. The survey found that in over 99 percent of civil rights cases, officers paid nothing in damages.

Meanwhile, opinion writers Anya Bidwell and Patrick Jaicomo for USA Today questioned if non officers should receive the same immunity.

In the case of Central Specialties Inc. v. Large, an engineer was granted immunity by a Minnesota court. The engineer had used a government vehicle to stop two trucks belonging to a separate company.

The Supreme Court will have a chance to examine Central Specialties Inc. v. Large and determine whether to grant immunity.

The Supreme Court will have an opportunity to review Central Specialties Inc. v. Large and decide whether that’s a fair deal.

To read more CLICK HERE

Mangino talks Waukesha Parade trial on Law and Crime Network

Watch my interview with Terri Austin on Law and Crime Network discussing the trial of  Darrell Brooks for driving into the Waukesha Holiday Parade killing six and injuring scores of the others. 

To watch the segment CLICK HERE

GOP legislators seek to impeach Democratic Philadelphia DA

Pennsylvania Republicans announced plans this week to impeach and potentially remove from office Philadelphia District Attorney Larry Krasner, a national leader among progressive prosecutors who was overwhelmingly re-elected last year, reported NBC News.

Krasner is not accused of committing a crime. Nor do his critics allege corruption. Instead, they accuse him of dereliction of duty for what they say is a failure to adequately enforce criminal laws, leading to rising crime rates and declining quality of life for Philadelphians.

The extraordinary move — the state Legislature has impeached only two officials in its entire history, in 1994 and 1811 — comes just two weeks before a midterm election in which Republicans have focused on crime while Democrats have highlighted threats to democracy from politicians willing to defy elections.

It also comes as progressive prosecutors and recent criminal justice reforms have faced blowback due to rising crime.

“I recognize the unprecedented nature of what must be done and am confident our members are up to the task,” Republican Rep. Martina White said at a news conference Wednesday announcing articles of impeachment at the state Capitol in Harrisburg.

Republicans control both chambers of the Legislature, but White is the only GOP member from Philadelphia, which is on pace to break last year’s record-setting homicide rate. 

The rest hail from other, largely rural parts of the state.

“There should be a war on crime. But due to the failed vision and his idea of criminal justice, crime is allowed to wage war on the good people and the great beautiful city of Philadelphia," Pennsylvania House Majority Leader Kerry Benninghoff said of Krasner at the news conference.

Pennsylvania’s Constitution gives the Legislature broad power to impeach “all civil officers” for “any misbehavior in office,” though it has almost never exercised that authority.

“It’s clear under the Constitution that 'misbehavior in office' is the standard,” said Republican Rep. Torren Ecker, when asked by reporters what impeachable offense Krasner had committed. “Failing to do his duty and uphold the law — that is the very definition of misbehavior.”

The Legislature is scheduled to recess the Wednesday before the Nob. 8 election, but Republican leaders said they will add extra days to the calendar if necessary to make sure an impeachment vote happens as soon as possible.

They insisted the move against Krasner and its timing is not about politics, but about the need to offer some relief to Philadelphians struggling against crime every day.

To read more CLICK HERE

This election 4.6 million people will be banned from voting

Laws in 48 states ban people with felony convictions from voting. In 2022, an estimated 4.6 million Americans, representing 2 percent of the voting-age population, will be ineligible to vote due to these laws or policies, many of which date back to the post-Reconstruction era, according to a new report "Locked Out 2022" by The Sentencing Project.

In this election year, as the United States confronts questions about the stability of its democracy and the fairness of its elections, particularly within marginalized communities, the impact of voting bans on people with felony convictions should be front and center in the debate.

To read the Report CLICK HERE

Nearly 20 states have constitutions permitting slavery and involuntary servitude as punishment

More than 150 years after slaves were freed in the U.S., voters in five states will soon decide whether to close loopholes that led to the proliferation of a different form of slavery — forced labor by people convicted of certain crimes, reported The Associated Press.

None of the proposals would force immediate changes inside the states’ prisons, though they could lead to legal challenges related to how they use prison labor, a lasting imprint of slavery’s legacy on the entire United States.

The effort is part of a national push to amend the 13th Amendment to the U.S. Constitution that banned enslavement or involuntary servitude except as a form of criminal punishment. That exception has long permitted the exploitation of labor by convicted felons.

“The idea that you could ever finish the sentence ‘slavery’s okay when ... ’ has to rip out your soul, and I think it’s what makes this a fight that ignores political lines and brings us together, because it feels so clear,” said Bianca Tylek, executive director of Worth Rises, a criminal justice advocacy group pushing to remove the amendment’s convict labor clause.

Nearly 20 states have constitutions that include language permitting slavery and involuntary servitude as criminal punishments. In 2018, Colorado was the first to remove the language from its founding frameworks by ballot measure, followed by Nebraska and Utah two years later.

This November, versions of the question go before voters in Alabama, Louisiana, Oregon, Tennessee and Vermont.

Sen. Raumesh Akbari, a Democrat from Memphis, was shocked when a fellow lawmaker told her about the slavery exception in the Tennessee Constitution and immediately began working to replace the language.

“When I found out that this exception existed, I thought, ‘We have got to fix this and we’ve got to fix this right away,’” she said. “Our constitution should reflect the values and the beliefs of our state.”

Constitutions require lengthy and technically tricky steps before they can be tweaked. Akbari first proposed changes in 2019; the GOP-dominant General Assembly then had to pass the changes by a majority vote in one two-year legislative period and then pass it again with at least two-thirds approval in the next. The amendment could then go on the ballot in the year of the next gubernatorial election.

Akbari also had to work with the state Department of Correction to ensure that inmate labor wouldn’t be prohibited under her proposal.

The proposed language going before Tennessean voters more clearly distinguishes between the two: “Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”

“We understand that those who are incarcerated cannot be forced to work without pay, but we should not create a situation where they won’t be able to work at all,” Akbari said.

Similar concerns over the financial impact of prison labor led California’s Democratic-led Legislature to reject an amendment eliminating indentured servitude as a possible punishment for crime after Gov. Gavin Newsom’s administration predicted it could require the state to pay billions of dollars at minimum wage to prison inmates.

Scrutiny over prison labor has existed for decades, but the 13th Amendment’s loophole in particular encouraged former Confederate states after the Civil War to devise new ways to maintain the dynamics of slavery. They used restrictive measures, known as the “Black codes” because they nearly always targeted Black people, to criminalize benign interactions such as talking too loudly or not yielding on the sidewalk. Those targeted would end up in custody for minor actions, effectively enslaving them again.

Fast-forward to today: Many incarcerated workers make pennies on the dollar, which isn’t expected to change if the proposals succeed. Inmates who refuse to work may be denied phone calls or visits with family, punished with solitary confinement and even be denied parole.

Alabama is asking voters to delete all racist language from its constitution and to remove and replace a section on convict labor that’s similar to what Tennessee has had in its constitution.

Vermont often boasts of being the first state in the nation to ban slavery in 1777, but its constitution still allows involuntary servitude in a handful of circumstances. Its proposed change would replace the current exception clause with language saying ”slavery and indentured servitude in any form are prohibited.”

Oregon’s proposed change repeals its exception clause while adding language allowing a court or probation or parole agency to order alternatives to incarceration as part of sentencing.

Louisiana is the only state so far to have its proposed amendment draw organized opposition, over concerns that the replacement language may make matters worse. Even one of its original sponsors has second thoughts — Democratic Rep. Edmond Jordan told The Times-Picayune/The New Orleans Advocate last week that he’s urging voters to reject it.

The nonprofit Council for a Better Louisiana warned that the wording could technically permit slavery again, as well as continue involuntary servitude.

Louisiana’s Constitution now says: “Slavery and involuntary servitude are prohibited, except in the latter case as punishment for a crime.” The amendment would change that to: “Slavery and involuntary servitude are prohibited, (but this) does not apply to the otherwise lawful administration of criminal justice.”

“This amendment is an example of why it is so important to get the language right when presenting constitutional amendments to voters,” the nonprofit group said in a statement urging voters to choose “No” and lawmakers to try again, pointing to Tennessee’s ballot language as a possible template.

Supporters of the amendment say such criticisms are part of a campaign to keep exception clauses in place.

“If this doesn’t pass, it will be used as a weapon against us,” said Max Parthas, state operations director for the Abolish Slavery National Network.

The question stands as a reminder of how slavery continues to bedevil Americans, and Parthas says that’s reason enough to vote yes.

“We’ve never seen a single day in the United States where slavery was not legal,” he said. “We want to see what that looks like and I think that’s worth it.”

To read more CLICK HERE

The Crime Report: ‘Hot-Spot Policing’ More Effective When Police Show Respect

Procedural justice principles are compatible with effective crimefighting, according to a study by the Center for Evidence-Based Crime Policy at George Mason University, according to The Crime Report.

Researchers found that crime significantly declined in high-risk neighborhoods where police were trained to use principles that focus on treating people fairly and with respect.

“Police can simultaneously focus on reform and crime reduction,” they concluded.

The conclusion, which many reform advocates might have considered self-evident a few years ago, is arguably controversial in some quarters now, when rising crime rates have triggered calls for a return to more muscular policing amid a backlash against reforms.

The study, published in the Fall 2022 edition of Translational Criminology, summed up the findings of a three-city research project conducted in at-risk neighborhoods in Houston, Cambridge, Mass., and Tucson.

The idea was to test two different ways of carrying out hot-spot policing, a strategy  introduced in many cities as a more sophisticated targeted approach to crimefighting. Rather than saturate an entire community with law enforcement, officers would be assigned to streets or sections of a neighborhood where statistics showed crime was high.

Hot-spot policing produced a high volume of arrests, but it also generated hostility in communities that considered they were being unfairly profiled.

In particular, one of the essential pillars of policing reform—the need for gaining trust and therefore legitimacy among the people who were being policed—often was absent.

“While there is evidence that proactive policing can effectively reduce crime in hot spots, there are concerns that intensive crime-fighting strategies could have negative effects on police trust,” the researchers explained.

“More generally, there has been a growing narrative that practitioners must choose between reform and police effectiveness.”

The authors wanted to test whether applying procedural justice principles undermined the “hot spot” policing approach. Procedural justice focuses on treating people with dignity and respect, even through comparatively minor details like taking an extra 10 minutes to speak to a community resident who has a problem or complaint.

Patrol officers in each of the targeted cities were separated in two teams. Both teams were assigned to high-crime neighborhoods. One of the teams was given 40 hours of training on procedural justice, and instructed to incorporate “procedural justice into every interaction they had while present in their hot spots, whether it was a casual conversation, a traffic stop, or an arrest.”

Over a nine-month period, which encompassed observing 400 hours of officer behavior, the study found that hot spots where officers had practiced procedural justice principles
“had about 14 percent fewer crime incidents.”

“Importantly,” the study added. “This crime decline came despite procedural justice officers making fewer arrests during the intervention.”

Officers made more than 60 percent fewer arrests than officers in other hot spots who weren’t trained in procedural justice.

The study said behavior of the different police teams in those hot spot areas was “significantly” different.

Those trained in procedural justice “were significantly more likely to give citizens a voice, demonstrate neutrality, and treat people with dignity and respect. They were also significantly less likely to be disrespectful.”

And it produced a change in community-police relations as well. Residents of blocks where procedural justice team had been working were less likely to complain about police harassment or excessive use of force.

The researchers acknowledged that success in introducing procedural justice concepts into real-world policing depended on a number of key factors, including systematic monitoring and supervision.

“We…worked closely with sergeants and supervisors at each site to help reinforce training concepts and encourage the use of procedural justice in the field,” the researchers wrote. “Without this reinforcement and departmental support, we suspect the impacts of training in the field will be much more limited.”

But the authors of the study said their findings offered an alternative to the increasingly prevalent view among tough-on-crime advocates that “soft” justice reforms endangered public safety.

“Fairness and effectiveness are not competing goals,” they repeated, adding that the results of the study are “especially important in the current environment, where violent crime is rising in many large cities.”

The lead author of the study is David Weisburd, distinguished professor in the Department of Criminology, Law and Society at George Mason University and Executive Director of the Center for Evidence-Based Crime Policy.

Other authors of the study, entitled, Incorporating Procedural Justice into Hot Spots Policing: Lessons from a Multicity Randomized Trial, included:

Anthony Braga, Jerry Lee Professor of Criminology and Director of the Crime and Justice Policy Lab in the Department of Criminology at the University of Pennsylvania;

Cody Telep, an associate professor and Associate School Director in the School of Criminology and Criminal Justice at Arizona State University;

Brandon Turchan,, doctoral candidate in the School of Criminal Justice at Rutgers University and a research fellow at the Crime and Justice Policy Lab at the University of Pennsylvania;

Heather Vovak, a research scientist at the Metropolitan Police Department in Washington, DC.; and

Taryn Zastrow, a doctoral student in the Department of Criminology, Law and Society and a graduate research assistant at the Center for Evidence-Based Crime Policy at George Mason University.

The project was supported by Arnold Ventures.

To download the Fall edition of Translational Criminology where the study appears, please click here.

This summary was prepared by TCR executive editor Stephen Handelman.

To read more CLICK HERE

Oklahoma responsible for 4 of 12 executions nationwide this year

 The 12th Execution of 2022

Oklahoma executed inmate Benjamin Cole on October 21, 2002 despite claims from his attorneys that he had been severely mentally ill, reported NBC News.

Cole was pronounced dead at 10:22 a.m. at Oklahoma’s state penitentiary in McAlester. He was the sixth Oklahoma inmate to be executed since the state resumed carrying them out in October 2021.

Attorneys for Cole did not dispute that he killed his infant daughter, 9-month-old Brianna Cole, by forcibly bending her backward, breaking her spine and tearing her aorta. But they argued that Cole was severely mentally ill and that he had a growing lesion on his brain that had worsened in recent years.

Cole refused medical attention and ignored his personal hygiene, hoarding food and living in a darkened cell with little to no communication with staff or fellow prisoners, his attorneys told the state’s Pardon and Parole Board last month during a clemency hearing.

 “His condition has continued to decline over the course of this year,” Cole’s attorney Katrina Conrad-Legler said.

The panel voted 4-1 to deny clemency, and a district judge earlier this month determined Cole was competent to be executed. Two last-minute appeals filed with the U.S. Supreme Court seeking to halt his execution were rejected, one on Wednesday and another Thursday morning.

In a separate case Wednesday, a federal appeals court panel upheld a lower court’s ruling earlier this year deeming Oklahoma’s execution protocol constitutional. Cole was among more than two dozen death row inmates who filed suit, citing, among other things, a series of problems in the death chamber, including a botched execution in 2014.

“Oklahoma’s earlier problems in the execution chamber are not enough to show that future similar problems are imminent,” the opinion from the 10th U.S. Circuit Court of Appeals said.

Cole had a lesion on his brain, which was separate from his diagnosis of paranoid schizophrenia, that had grown in size in recent years and affected the part of his brain that deals with problem solving, movement and social interaction, Conrad-Legler said.

Top of Form

Attorneys for the state and members of the victim’s family told the board that Cole’s symptoms of mental illness were exaggerated and that the brutal nature of his daughter’s killing merited his execution.

Assistant Attorney General Tessa Henry said Cole killed his daughter because he was infuriated that her crying from her crib interrupted his playing of a video game.

“He is not severely mentally ill,” said another prosecutor, Assistant Attorney General Ashley Willis. “There is nothing in the constitution or jurisprudence that prevents his execution.”

Prosecutors noted that the infant had numerous injuries consistent with a history of abuse and that Cole had previously served time in prison in California for abusing another child.

Board members also heard emotional testimony from family members of the slain child’s mother, who urged the board to reject clemency.

“The first time I got to see Brianna in person was lying in a casket,” said Donna Daniel, the victim’s aunt. “Do you know how horrible it is to see a 9-month-old baby in a casket?

“This baby deserves justice. Our family deserves justice.”

Oklahoma Attorney General John O’Connor said in a statement before the execution that he was confident Cole was sufficiently competent to be executed.

To read more CLICK HERE

More forensic junk science: bitemark analysis

Despite the popularity of cop shows about investigators bringing criminals to justice based on a few fingernail clippings and a dropped tissue, the track record of forensic evidence is spotty at best. Critics, including Reason journalists, have shown that too much crime-stopper "science" resembles tea-leaf reading more than it does the efforts of Sherlock Holmes, reported Reason Magazine.

Now a federal agency says that bitemark analysis, something of a poster child for bad forensic technique, is every bit as sketchy as skeptics claim.

"Forensic bitemark analysis lacks a sufficient scientific foundation because the three key premises of the field are not supported by the data," finds a draft report from the National Institute of Standards and Technology (NIST). "First, human anterior dental patterns have not been shown to be unique at the individual level. Second, those patterns are not accurately transferred to human skin consistently. Third, it has not been shown that defining characteristics of those patterns can be accurately analyzed to exclude or not exclude individuals as the source of a bitemark."

There's a lot more in the report, which is currently in its comment period and so isn't yet finalized. It's worth noting this 2022 document is a response to a 13-year-old call for a stronger scientific basis for the proliferating use of forensic evidence.

"NIST scientific foundation reviews fill a need identified in a landmark 2009 study by the National Academies of Sciences, Engineering, and Medicine, which called for research to address issues of accuracy, reliability and validity in many forensic science disciplines, including bitemark analysis," acknowledges NIST.

That was after journalist Radley Balko, then with Reason, had pointed out some of the glaring flaws in forensic science in general, and bitemark analysis in particular.

"He claims to have perfected a method of identifying bite marks using laser light and orange goggles that he modestly calls 'the West Phenomenon,'" Balko wrote in 2007 of Mississippi dentist Michael West. "He has said his error rate in bite mark analysis is 'something less' than the error rate of 'my savior, Jesus Christ' and has compared his bite mark virtuosity with the musical talent of Itzhak Perlman."

Balko subsequently literally wrote the book about West, fellow practitioner Dr. Steven Hayne, and the injustices resulting from their forensic testimony. But even with NIST acknowledging, at long last, that "the ability of bitemark analysis to accurately exclude or not exclude individuals as a source of the mark is not supported," he sees little hope for reform.

"If the criminal legal system prioritized justice, we'd have long ago seen a thorough review of every bitemark conviction in the country—if not after the first series of DNA exonerations of bitemark convictions, then certainly after the NAS report cast doubt on the entire discipline," Balko writes. "Tragically, judges and prosecutors seem to have concluded that real legitimacy lies in pretending the biggest, most consequential mistakes never happened."

Maybe not, but it's worth highlighting the extent to which the NIST report debunks bitemark analysis. The report points out that bitemark analysis relies on the assumptions that: teeth marks are unique; that they reliably transfer to surfaces such as skin; and that the marks can then be analyzed and linked to specific individuals.

First of all, it's not at all clear that bites leave distinct patterns. "Bitemark patterns typically only represent the anterior teeth" (those in the front of the mouth) and the marks they leave can vary depending on injuries, breakages, or obstructions. That leaves limited information with which to work even before we get to the contradictory evidence available about the individuality of bites from one mouth to the next.

Second, skin is the surface most often analyzed for bitemarks, but it's malleable and doesn't reliably take teeth marks to begin with. "In addition, human skin can change the appearance of a bitemark over time depending on the rate and amount of swelling at the site, healing, and skin elasticity." As a result, "human skin as a dependable material for bitemarks is a key area of dispute in the field."

Finally, linking bitemarks that may or may not be unique, left on elastic surfaces that swell and heal, to people is fraught with uncertainty. "Multiple studies have demonstrated a widespread lack of agreement on conclusions reached with bitemark data, including those relating to whether the mark was indeed a bitemark, features present, and inconsistency in techniques used to analyze bitemarks from one case to the next."

That's right. Scientists don't always agree they're examining a bitemark, let alone on who left it.

The NIST report might or might not inspire some humility in the criminal justice system. But it should offer ammunition to defendants against whom bitemarks are included in the prosecution's evidence.

Unfortunately, as that 2009 NAS call for better scientific support for forensic science suggests, the problem doesn't stop with bitemarks. Reason has documented the unreliability of drug-sniffing dogs, flawed drug tests, shaken-baby junk science, and the sometimes dishonest testimony of technicians called to make the state's case. The unreliability of much of this evidence isn't a recent revelation.

"In September the President's Council of Advisers on Science and Technology (PCAST) released a report finding 'a dismaying frequency of instances of use of forensic evidence'—such as analyses of hair, bite marks, and shoe prints—'that do not pass an objective test of scientific validity,'" C.J. Ciaramella wrote for Reason in 2016. "This is not just a theoretical problem. Last year, the FBI admitted that nearly every one of the experts at its microscopic hair analysis lab had given scientifically invalid testimony. The breaches affected almost 270 cases. Of those, 32 defendants were sentenced to death, and 14 were executed or died in prison."

So, the NIST report on the failings of bitemark analysis provides extra backing for what even the White House admitted two administrations ago: those cop shows about super-accurate science linking criminals to their foul deeds are more science fiction than whodunnit. As it turns out, it takes a lot more evidence to end the use of bad forensic techniques than it does to throw people in prison or put them on death row.

To read more CLICK HERE

Judge calls 'shaken baby syndrome' junk science

When Michelle Heale was sentenced for shaking to death 14-month old Mason Hess, she told the courtroom: “Innocent people are being sent to prison based on this flawed theory…This needs to stop.”

More than six years later, a New Jersey judge agreed with her, reported The Appeal.

In January of this year, Superior Court of New Jersey Judge Pedro J. Jimenez, Jr. ruled in a different case that prosecutors could not introduce evidence of the scientifically dubious theory used to convict Heale—”Shaken Baby Syndrome.” In that case, a father was accused of shaking his 11-month-old son, who was identified as D.N. in the judge’s opinion.

Jimenez wrote that the diagnosis of Shaken Baby Syndrome, also known as Abusive Head Trauma, is “an assumption packaged as a medical diagnosis” and “lacks scientific grounding.” The parents had brought D.N. to the hospital because he appeared to be having seizures. Although he had a documented history of medical problems, including a hospital stay for the first seven months of his life, doctors concluded that he had been shaken.

“No study has ever validated the hypothesis that shaking a child can cause the triad of symptoms associated with AHT,” Judge Jimenez continued. “This diagnosis is akin to ‘junk science.’”

In February, Colin Miller, a professor at the University of South Carolina School of Law, submitted an application to the New Jersey Attorney General’s Conviction Review Unit asking that they “correct an injustice and set Michelle Heale free.” Last month, he sent the office a letter detailing Jimenez’s ruling. Miller began work on Heale’s application after he read The Appeal’s investigation into her case, which was published in 2020.

Proponents of the Shaken Baby Syndrome diagnosis claim that shaking a baby produces a so-called “triad” of catastrophic injuries exclusive to shaking — subdural hemorrhage, retinal hemorrhage, and brain swelling. The diagnosis does not require the presence of other injuries such as bruises, grab marks, or damage to the baby’s neck.

The injuries are so severe, these experts say, that the baby would immediately collapse. The last person with the baby — a parent, babysitter, or daycare worker — is often the prime (if not the only) suspect. The person accused is then left to prove they’re innocent of a crime that likely never occurred. They are up against damning testimony, often from physicians, who say with certainty that the baby’s injuries are comparable to those sustained from falling out of a window or being thrown from a car. In comparison, the defendant’s account — that the baby went limp — often seems farcical.

On Aug. 28, 2012, Heale was babysitting Hess in her New Jersey home. She says she was feeding him when he suddenly went limp.

Heale called 911. “His whole body is lifeless,” she told the operator. Hess was then rushed to the hospital.

The emergency room doctor diagnosed him with pneumonia and found evidence of a possible bacterial infection. Hess was airlifted to Children’s Hospital of Philadelphia. Their doctors quickly came to a different conclusion: Hess must have been shaken.

Hess was pronounced dead on Sept. 1. Although Heale, a mother of two, had no history of abuse, she was convicted of aggravated manslaughter and child endangerment and sentenced to 15 years in prison. At the time, her twins were six years old.

Studies and several exonerations have shown that there are many other explanations for the so-called triad, including accidental, seemingly inconsequential short-distance falls that may have occurred days or weeks before a baby’s collapse; trauma sustained during childbirth; or illness.

In Heale’s case, Hess was sick and had fallen in his home about a week before his collapse. The fall caused a bruise on his head that was visible during the autopsy.

Before Heale’s trial, her attorneys had contacted Chris Van Ee, a biomechanical engineer and accident reconstruction specialist, about her case. He wrote and sent them a report, but never heard back. The report was not introduced at her trial and he was not called to testify. In his report on Hess’s death, Van Ee wrote that the child did not have any bruises, skull fractures, or other injuries that would have indicated he was shaken.

Van Ee has testified as an expert in several criminal cases, including at the hearing held before Judge Jimenez to determine if the prosecution could introduce evidence of SBS against D.N.’s father.

Jimenez is not the first judge to question the SBS diagnosis. Another New Jersey judge acquitted a father who was accused of shaking his infant son. The father had said the baby unexpectedly went limp, at which point he’d taken him to the hospital. In the judge’s ruling he wrote that it was widely accepted in the scientific community that other causes can “‘mimic’ findings commonly associated with SBS.” His decision came down in the summer of 2018, about two months after the state Supreme Court refused to hear Heale’s appeal.

“There have now been two New Jersey courts that have deemed the same type of testimony used to convict Michelle Heale unreliable and inadmissible,” USC’s Miller wrote to the Attorney General’s conviction review unit in April. The most recent ruling further strengthens Heale’s innocence claim, Miller said, and he “again respectfully asks that her convictions be overturned.”

To read more CLICK HERE

Mangino discusses cheating wife murder trial on Court TV

 Watch my guest appearance on Court TV discussing the murder trial of Nikki Entzel.

To watch CLICK HERE

To watch CLICK HERE

End life-without-parole in Pennsylvania for second-degree murder

 Pittsburgh Post-Gazette editorial:

The state appeals court should strike down a Pennsylvania law mandating life-without-parole sentences for second-degree murder. If the court fails to do it, the Pennsylvania General Assembly should scrap this draconian law. 

There is ample precedent for judicial review of a law that tests the Eight Amendment’s ban on cruel and unusual punishment. The U.S. Supreme Court has eliminated, on constitutional grounds, other unduly harsh sentencing laws, such as mandatory life sentences for juveniles, after state legislatures failed to act on them.   

Pennsylvania’s felony murder law is an outlier. Only a handful of other states, including Louisiana, impose similar sentences. It’s cruel because it allows no judicial discretion in light of circumstances, imposing automatic life sentences, with no possibility of parole, on people who did not kill anyone or intend to, or even know a weapon was present, if they participated in a crime that resulted in a murder. The law does not distinguish between accomplices and principals. It is a brutal example of one-size-fits-all justice. 

Striking down the law would not mean some people convicted of second-degree murder would not serve life sentences. It would simply give the state Parole Board the option to release people after serving lengthy prison sentences. 

A case argued before a three-judge panel of the Pennsylvania Superior Court in Pittsburgh last month is typical. Derek Lee, now 34, is serving a mandatory life sentence for a murder committed by his partner in a robbery. 

In October of 2014, Lee entered a home in Elliott, intending, by all available evidence, to steal, not to kill. Lee, then 26, was upstairs when his partner, Paul Durham, shot a man to death in the basement.  Though Lee did not kill anyone, he and Durham were convicted of the same crime and received the same sentence: mandatory life for second-degree murder, otherwise called felony murder. 

Bret Grote, a member of the Abolitionist Law Center who represents Lee, correctly argued that Lee’s mandatory life sentence was excessively cruel. By presuming no possibility for change or rehabilitation, the law serves neither justice nor the taxpayer. Each prisoner costs the state an average of $42,000 a year.

People can, and do, change. A Sept. 25, column by Editorial Page Editor Jeffery Gerritt profiled three men in Michigan who had been convicted of murder and are now living productive lives. They are working with young people and ex-offenders to make their communities safer. Like most states, Michigan does not impose mandatory life sentences for second-degree murder. 

State prisons in Pennsylvania hold 1,100 people convicted of felony murder. Black people make up 70% of them, though they constitute just over 12% of Pennsylvania’s  population. 

The felony murder law has become a campaign issue in the U.S. Senate race between Republican Mehmet Oz and Democrat John Fetterman. But this ineffective and costly law should not be a partisan issue. It is poor public policy and recognized as such by conservatives and liberals alike.    

The Pennsylvania courts have sufficient grounds to strike down the state’s felony murder law. If they don’t, the General Assembly should reject it as soon as possible. 

To read more CLICK HERE

Watch my interview on WFMJ-TV Weekend Today

Watch my interview on WFMJ-TV Weekend Today discussing the many legal troubles of Donald Trump.

To watch the interview CLICK HERE and scroll over to Legal Expert.

Mangino talks Alex Jones verdict on WFMJ-TV21

Watch my interview on WFMJ-TV21 discussing the billion dollar verdict against Alex Jones.

To watch the interview CLICK HERE

PA lawmakers announce proposal to create school-based youth court

Two Pennsylvania lawmakers announced plans for a bill creating a pilot program to develop school-based youth court programs to improve restorative justice initiatives and disrupt the school-to-prison pipeline, reported the Pennsylvania Capital-Star.

Legislation expected from Sens. Timothy Kearney, D-Delaware, and John Kane, D-Chester, implements recommendations in a 2019 Joint State Government Commission report. The commission, directed to examine the possible benefits of the program, found that youth courts could address disciplinary problems and divert juvenile offenders from further violations through restorative justice.

An alternative to the traditional juvenile justice system and school disciplinary proceedings, youth courts are diversion programs where young people sentence their peers for minor crimes, offenses, or violations.

“Parents, school administrators, and educators have been raising concerns about the net effects of punitive student disciplinary policies that emphasize suspension, expulsion, and referrals [to] law enforcement,” the lawmakers wrote in a memo seeking legislative support. “Together, these policies and practices increase the likelihood that wayward youth will end up in the criminal justice system and reduce the chances that they will finish their education and become productive members of society.”

The initiatives are“ known to improve student-teacher relationships and school climate and provide additional educational benefits for participating students, including civic engagement, public speaking, conflict-resolution, and leadership skills,” Kearney and Kane wrote.

Their proposal would establish a five-year pilot program for school-based youth courts and establish a Youth Court Resource Center to help schools develop the program and implement other restorative justice measures.

“The pilot program will include annual grants to school entities — including public middle and high schools, public charter schools, school districts, or intermediate units — to begin youth courts, develop partnerships to aid youth courts, or evaluate program outcomes,” they wrote. “The pilot program will provide critical data to measure the efficacy of youth courts as a trauma-informed approach to improve disciplinary and educational outcomes for participating students.”

The National Association of Youth Courts identified the most common offenses addressed by youth courts as theft, vandalism, disorderly conduct, alcohol, assault, possession of marijuana, tobacco, curfew violations, and school disciplinary matters.

The U.S. Office of Juvenile Justice and Delinquency Prevention estimates that there are at least 1,000 youth courts in the United States.

The Senate directed the Joint State Government Commission to establish an advisory committee comprised of public educators, law enforcement, and youth court experts to study the program and its effectiveness as a reformative juvenile justice tool. 

The report consisted of eight recommendations, including encouraging a continuum of youth court programs, possible structures, guidance from the state Department of Education on implementation, continued research and reporting to assess productivity, and new funding to support the initiative.

In Pennsylvania, school-based student youth courts are the least common youth court programs, according to the 2019 report, which found that 11 school districts and two charter schools used the initiative for school discipline matters. Most Pennsylvania youth courts are juvenile justice-based programs. They operate at the county level and are supervised and supported by the county juvenile probation officer.

Other types of programs include community justice panels, truancy courts, and problem-solving youth courts.

To read more CLICK HERE

'Crime crisis' driven by the media not data

 Fox News contributor Gianno Caldwell caught up with Rep. Jerry Nadler (D-N.Y.) outside an elevator in the Capitol. His focus was simple: “We just want to talk about the crime crisis in America.” Nadler, who’d suggested that Caldwell contact his office, didn’t reply, reported the Washington Post.

Perhaps Nadler was stymied by the framing. Which “crime crisis” is that, exactly? In Nadler’s hometown of New York City, murder and shooting incidents are down relative to last year, though violent crime in general is up. Last year, the city saw lower crime across the board than two or three decades ago, though, again, it’s now up relative to 2020. Is that what Caldwell meant? Or did he mean something broader?

If so, I’d be interested to know what numbers he’s looking at. Data released by the FBI on suggested that violent crime nationally didn’t increase much in 2021 relative to 2020. That comports with recent figures from crime victimization data from the Bureau of Justice Statistics (BJS), which indicated that reported violent crime was flat in 2021 and down from before the pandemic.

As I noted when those BJS numbers were released, discussion of crime in the United States is hampered by broadly inconsistent and uneven reporting of crime data. Some jurisdictions, like New York or Los Angeles (where violent crime is essentially flat, year-over-year) report data regularly. The national measure compiled by the FBI has seen declining participation (thanks in part to a change in what it collects) even as it operates at a substantial delay.

What’s left, then, is largely anecdotal. Stories of violent incidents, always catnip for newscasts, are used to portray a sense of crime that may or may not comport with reality. And Fox News has been very active in trying to portray exactly that sense.

In 2018 and 2019, Fox News mentioned crime about as often in its broadcasts as its primary competitors, CNN and MSNBC. Then in 2020 — with Donald Trump up for reelection and riots following racial justice protests — mentions briefly climbed.

But that was nothing compared with the surge of mentions in 2021 and 2022, after President Biden was inaugurated. Last year, and so far this year, Fox News has mentioned crime twice as often as its competitors on average. It has talked about crime more often than abortion in every month but one — May, when the draft decision overturning Roe v. Wade was released, not when it was actually overturned.

Republicans, a significant part of the Fox News audience, were more likely to say crime is a crisis, though 6 in 10 of Democrats said the same thing.

Again, crime is up over the past three years! The best available data, though, suggest violent crime isn’t up significantly since last year. In some places, in some categories, yes. But people also tend to overestimate both their own vulnerability to crime and the national level of crime. In August YouGov polling, people consistently viewed crime as a problem in the country, though not in their own communities.

The lack of data is an opportunity for those who might find it useful to suggest that crime is out of control. Though it’s hard to contextualize individual acts of criminality, it’s easy to cast those individual acts as representative of broader trends. Fox News and others in the conservative media were effective at portraying the protests during the summer of 2020 as incessantly violent and enormously damaging to a large number of major American cities over an extended period of time, even when that was easily disprovable. Now, with the midterms looming, Fox News is talking about crime more than ever.

Most Americans say there is a “crime crisis.” But what, exactly, are legislators like Nadler supposed to say about it in the absence of any understanding of what that “crisis” actually looks like? How do you counter an endless loop of criminal activity shown on television without knowing whether those crimes are anything more than sensationalism?

You don’t.

To read more CLICK HERE

Upstate New York Sheriffs say they won't enforce gun law

Robert Milby, Wayne County’s new sheriff, has been in law enforcement most of his adult life, earning praise and promotions for conscientious service. But recently, Sheriff Milby has attracted attention for a different approach to the law: ignoring it, reported The New York Times.

Sheriff Milby is among at least a half-dozen sheriffs in upstate New York who have said they have no intention of aggressively enforcing gun regulations that state lawmakers passed last summer, forbidding concealed weapons in so-called sensitive areas — a long list of public spaces including, but not limited to, government buildings and religious centers, health facilities and homeless shelters, schools and subways, stadiums and state parks, and, of course, Times Square.

“It’s basically everywhere,” said Sheriff Milby, in a recent interview in his office in Wayne County, east of Rochester. “If anyone thinks we’re going to go out and take a proactive stance against this, that’s not going to happen.”

U.S. District Court judge recently blocked large portions of the law, dealing a major blow to lawmakers in Albany who had sought to blaze a trail for other states after the Supreme Court in June struck down a century-old New York law that had strictly limited the carrying of weapons in public. Between the court challenge and the hostility of many law enforcement officers, New York’s ambitious effort could be teetering.

The judge, Glenn T. Suddaby, agreed to a three-day delay of his order to allow an emergency appeal to a higher federal court. But even before Judge Suddaby ruled, a collection of sheriffs from upstate New York were already saying they would make no special effort to enforce the law, citing lack of personnel, an overbroad scope and possible infringements on the Second Amendment.

Nationwide, conservative sheriffs have been at the front line of an aggressive pushback on liberal policies — often framing themselves as “constitutional sheriffs,” or as self-declared arbiters of any law’s constitutionality. Sheriffs in other states have also been part of efforts to prove a fallacious conspiracy theory that former President Donald J. Trump actually won the 2020 election.

In New York, dissent has walked a fine line between loud complaints and winking resistance, including pledges of selective — and infrequent — enforcement. 

“I have to enforce it because I swore to uphold the laws, but I can use as much discretion as I want,” said Richard C. Giardino, the Republican sheriff in Fulton County, northwest of Albany. “If someone intentionally flouts the law, then they’re going to be handled one way. But if someone was unaware that the rules have changed, then we’re not going to charge someone with a felony because they went into their barbershop with their carry concealed.”

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Violent crime rates fail in 2021, but agency reporting is down

According to The Crime Report, the rise in murders in the U.S. slowed in 2021, increasing just 4 percent last year after surging nearly 30 percent in 2020, while overall violent crimes dropped 1 percent for the year, reports Zusha Elinson for the Wall Street Journal.

However, national crime estimates for 2021 are based on unusually low participation by local law-enforcement agencies, with only roughly 65 percent of law-enforcement agencies submitting at least partial data to the new National Incident-Based Reporting System in 2021, compared with 95 percent in recent years.

Law-enforcement agencies have been slow to switch over to the new system and agencies in three of the most-populous states—California, Florida and New York—didn’t report figures, including departments in New York City and Los Angeles.

According to Priya Krishnakumar for CNN, only 52 percent of all agencies submitted a full year’s worth of data. The data collection system, called NIBRS (National Incident Based Reporting System), requires greater detail in logging crimes, which the FBI said has lowered participation rates and, as a result, the 2021 report relies heavily on estimates.

The new report estimates an overall decline in violent crime by 1 percent from 2020, driven largely by reductions in the robbery rate, which declined by 8.9 percent.

The FBI announced that it was transitioning away from its previous data reporting system, the UCR Summary Reporting System (SRS) in 2015, estimating then that they expected an initial participation rate of 75 percent.

Critics said the new system has caused short=term problems in interpreting and analyzing the data.

“These data will be difficult to compare to the past given the large drop in reporting agencies,”  Ernesto Lopez, research specialist for the Council on Criminal Justice said in a statement.

“(But) as more cities report using NIBRS, and reporting is more uniform throughout the country, this will not be as large of an issue.”

All the same, the transition has made the figures more politically charged than usual,  and some of the key data differences make the data subject to confusion by the media, said Laura Bennett, Director of the Center for Just Journalism.

“Crime data is so diffuse and so hodge-podge,” Bennett said.

There is a smaller issue of the hierarchy rule in the Summary Reporting System (which most people just called the UCR) that is not present in NIBRS, experts told TCR.

In short, if someone is assaulted during a robbery the only crime that counted for statistical purposes was the robbery. Now, both the robbery and the assault would be counted. In other words, as a function of the hierarchy rule, some crimes were undercounted and these crimes will more accurately be reflected using NIBRS.

The FBI  claimed in 2019 that the NIBRS hierarchy changes would lead to more accurate offense reporting.

A guide to interpreting the data can be downloaded here.

To read more CLICK HERE

U.S. has high fatal police shooting rate

The U.S. had a fatal police shooting rate of 3.1 per million in 2019, five times higher than Australia’s rate, and 22 times higher than France, according to a study by Rutgers University., according to James Van Bramer of The Crime Report.

The study, published in the Annual Review of Criminology, analyzed the rates of deadly police violence, including shootings and other violence in 18 countries.

The report finds the treatment of minorities, gun homicides and police training duration as primary factors in countries with the highest rates.

Countries with the highest rates – the U.S., Venezuela, Canada, Australia, Brazil, France and Belgium – are distinguished by their mistreatment of minorities or long-standing grievances and turmoil, said Paul Hirschfield, lead author of the study and an associate professor of sociology and director of the Criminal Justice Program at Rutgers.

“The institution of slavery was so massive in Brazil and the United States that the wounds that it inflicted, the benefits it conferred and the racial hierarchy and ideology that sustained it remained long after abolition and have indelibly shaped the contemporary social and institutional order,” Hirschfield said.

But according to the study, the length of police training greatly impacted the number of fatal incidents.

U.S. police averaged the briefest training period over the 18 countries examined, averaging only five months.

Belgian police, with a fatal police violence rate of 0.35 per million, receive eight months of training, while the National Police in France, with an even lower rate (0.29 per million) of fatal police violence, attend school for ten months.

Meanwhile, Canada, with a fatal police violence rate of 0.9 per million, provides around six and a half months of training for its national police force, the Royal Canadian Mounted Police, and 24 weeks for the Toronto police, its most extensive municipal force.

The study says that the time used during the training is also essential.

In Brazil and Venezuela, militarized police forces receive extended training. Still, fatal police violence rates are extraordinarily high, partly because training models brutal methods and generally fails to teach restraint, according to the report.

However, gun homicides may be a proxy for another explanation, such as armed and hostile suspects, as the report finds rates of gun homicides and fatal police violence were exceptionally related (.97 correlation).

For example, the study found the U.S. had a high fatal police violence rate (3.4 per million) and a heightened rate of gun homicide (3.7 per 100,000).

In contrast, Australia had a reasonably high fatal police violence rate in 2019 (.7 per million) despite lower rates of gun homicide (.14 per 100,000).

In the U.S., where nearly half of Americans own a firearm, given the strong protections of the Second Amendment, guns play a considerable role in the rates.

However, countries with ethnic tensions and short police training times managed to have lower rates of incidents.

The U.K.’s England and Wales, and Spain had low fatal police violence rates despite ethnic tensions and relatively short classroom training duration, like the U.K.’s England and Wales, as well as Spain., the report finds.

But Spain, like Chile, which caused distrust in their police in the past, managed to keep steady rates.

The study suggests that researchers delve into such cases to examine how countries such as Chile and Spain – rife with rising crime or insecurity, inadequate public resources and secretive national police forces with roots in dictatorships – still manage to avoid high fatal police violence rates.

Hirschfield said these are “rather fertile grounds for refining both explanations of exceptionally lethal policing in the U.S. and theories of international variation in lethal policing more broadly.”

To read more CLICK HERE