Friday, March 31, 2023

What is next for Donald Trump?

He will be fingerprinted. He will be photographed. He may even be handcuffed.

If he surrenders Tuesday, Donald J. Trump is expected to walk through the routine steps of felony arrest processing in New York now that a grand jury has indicted him in connection with his role in a hush-money payment to a porn star, reported The New York Times. But the unprecedented arrest of a former commander in chief will be anything but routine.

Accommodations may be made for Mr. Trump. While it is standard for defendants arrested on felony charges to be handcuffed, it is unclear whether an exception will be made for a former president. Most defendants are cuffed behind their backs, but some white-collar defendants deemed to pose less danger have their hands secured in front of them.

Mr. Trump will almost certainly be accompanied at every step — from the moment he is taken into custody until his appearance before a judge in Lower Manhattan’s imposing Criminal Courts Building — by armed agents of the U.S. Secret Service. They are required by law to protect him at all times.

Security in the courthouse is provided by state court officers, with whom the Secret Service has worked in the past. But the chief spokesman for the federal agency, Anthony J. Guglielmi, said he could not comment on measures that would be put in place for Mr. Trump.

It may take several days for Mr. Trump to appear at the courthouse. Now that the grand jury has voted to indict him — meaning to charge him with felony crimes — the indictment will remain sealed until his expected arraignment on Tuesday, when the charges will be formally revealed.

After the indictment, prosecutors contacted Mr. Trump’s defense lawyers and negotiated the terms of his surrender, a common practice in white-collar investigations.

Lawyers for Mr. Trump, who is running for president a third time, said late Thursday that he will surrender and he is expected to be arraigned on Tuesday.

After he is arraigned, he is almost certain to be released on his own recognizance, because the indictment will likely contain only nonviolent felony charges; under New York law, prosecutors cannot request that a defendant be held on bail in such cases.

The former president is already using the charges as part of a campaign strategy to energize his base.

Surrender is not in the confrontational former president’s DNA, and he often seems to relish antagonizing and attacking prosecutors who have investigated him, such as Alvin L. Bragg, the Manhattan district attorney who secured Thursday’s indictment. He has called Mr. Bragg, who is Black, “a racist” and an “animal” and said that his investigation was politically motivated.

In the unlikely event that the former president refuses to surrender, Gov. Ron DeSantis of Florida has already said that his state “will not assist in an extradition request,” should one come from New York authorities. Still, if the New York prosecutors were to actually seek Mr. Trump’s extradition, and Mr. DeSantis attempted to protect his Republican rival, he could possibly face legal action himself.

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Thursday, March 30, 2023

State response to mass shootings: 25 states require no permit to carry a handgun—nine more than in 2020

After a mass shooting at an elementary school in Texas last year prompted calls for new gun restrictions, Republican-led states around the country moved in the other direction, reported The New York Times. One of them was Tennessee, where the governor insisted that tighter firearms laws would never deter wrongdoers.

“We can’t control what they do,” Gov. Bill Lee said.

Tennessee lawmakers have instead moved to make firearms even more accessible, proposing bills this year to arm more teachers and allow college students to carry weapons on campus, among other measures.

Then came the attack on Monday at the Covenant School in Nashville, where a shooter carrying multiple weapons killed six people, including three children. The same day, a federal judge signed off on a state settlement allowing people as young as 18 to carry a handgun without a permit.

Amid the ghastly cadence of multiple mass shootings that have prompted calls for more comprehensive controls on guns, Republicans in statehouses have been steadily expanding access to guns.

this year to limit gun-free zones, remove background checks and roll back red-flag laws that seek to remove firearms from those who are a danger to themselves or others.

Missouri last year enacted a measure that made it illegal for local law enforcement to cooperate with federal authorities in many gun investigations. A federal judge earlier this month struck down the law as unconstitutional.

“I think it’s gotten progressively worse over the years,” North Carolina’s Democratic governor, Roy Cooper, said in an interview. On Wednesday, the Republican-controlled Legislature in his state overrode his veto and eliminated a century-old pistol permitting system.

In 25 states, no permits are required to carry a handgun — nine more than in 2020. 

“That has been the most rapid expansion of gun rights at the state level that we have seen,” said Jacob Charles, an associate professor who specializes in firearms law at the Pepperdine Caruso School of Law.

Perhaps nowhere represents the shift to expand gun access more than Tennessee, a state at the crossroads of Appalachia, the upper South and lower Midwest whose politics on guns typify Red America’s rapid movement rightward on gun regulations.

In recent years, Republicans in the Tennessee State Legislature — a 20-minute drive from the site of this week’s mass shooting — have passed a series of measures that have weakened regulations, eliminating some permit requirements and allowing most residents to carry loaded guns in public, open or concealed, without a permit, training or special background checks.

The decisions came even after a representative of the Tennessee Sheriffs’ Association rose at a legislative hearing to oppose the permitting measure, saying it would make knowing whether a person was unlawfully carrying a weapon more difficult for law enforcement.

Jerry Sexton, then a Republican state representative, accused him of wanting “to infringe upon the rights of us as a people.”

“I am offended by the fact that you are doing this,” Mr. Sexton said. “I say that you need to back off and let citizens be citizens.”

A congressman in Georgia ran for the office in 2020 with yard signs featuring an AR-15 rifle. Former President Donald J. Trump made a point of appearing in person at the National Rifle Association convention in Houston in May, not long after the school shooting in Uvalde. Other candidates have repeatedly been using guns in television ads.

Representative Andy Ogles, a Republican whose district includes the Covenant School where this week’s mass shooting took place, posted a Christmas photo of his family posing with rifles in 2021. The photo drew criticism this week in the aftermath of the killings.

“Why would I regret a photograph with my family exercising my rights to bear arms?” he said.

The National Rifle Association remains a potent force on the right despite a recent drop in fund-raising, amid questions about the lavish spending habits of its senior leadership in the Beltway. And the gun rights movement itself has become both more diffuse and influential, with local groups — including the Gun Owners of America and the conservative Dorr brothers network in the Midwest — gaining a following, and pressuring Republican state lawmakers from the right.

In the Nashville killing, the parents of the shooter — identified by police as Audrey E. Hale — had reported that their child was under doctors’ care and “should not own weapons,” said Chief John Drake of the Nashville Metro Police Department. The shooter had purchased seven firearms from five local gun stores and then used three of them during the attack.

The Republican initiatives have not been limited to statehouses. In Congress, the same day as the Tennessee shooting, the House Judiciary Committee chairman, Jim Jordan, an Ohio Republican, postponed a hearing where he planned to make the case for a Republican bill to outlaw one of the modest regulatory efforts undertaken by the Biden administration, a requirement to register so-called stabilizing braces that allow semiautomatic pistols to be propped against the shoulder for easier, more focused firing.

Images of the weapons used in the Nashville shooting appeared to show that the killer owned such a brace and might have used it in the attack, according to law enforcement officials. It would not have been illegal to possess one — owners of the braces have until the end of May to register their weapons and pay a $200 fee to comply with the change.

“Democrats were going to turn this tragic event into a political thing,” Mr. Jordan told reporters at the Capitol on Monday night. He said he had no plans to withdraw the measure or to slow his push to loosen gun laws.

One of Tennessee’s senators, Marsha Blackburn, made no mention of gun control ideas but called on Congress to find ways to increase security in schools.

Gov. Lee vowed to “act to prevent this from happening again” in Tennessee, but did not offer any specifics on how he planned to do so. A key committee in the state General Assembly decided to postpone the consideration of any bills relating to guns until next week, with State Senator Todd Gardenhire, a Chattanooga Republican, saying, “We need to be respectful of those victims and the families of the victims.”

Researchers examining the impact of mass shootings on gun policy found a few years ago that states with Republican-controlled legislatures were more likely to loosen gun laws in the year after a mass shooting in their state than in other years.

States led by Democrats have long been pursuing more stringent gun control measures.

In Connecticut after the school shooting in Newtown in 2012, state lawmakers expanded an assault weapons ban, banned high-capacity magazines and implemented universal background checks. Oregon voters last year approved a sweeping gun control measure, which requires gun purchasers to get a permit and take a gun safety course, that is currently being challenged in court.

Other measures under consideration this year include efforts in Minnesota to make it easier to take guns from people deemed to be a threat, a plan in Oregon to ban untraceable guns that are assembled at home and a bill in Michigan to penalize those who leave guns in places accessible to children.

State Representative Bo Mitchell, a Democrat from Nashville, has been outspoken about his opposition to various bills currently under review in the Tennessee Legislature that would expand access to firearms, hoping instead that lawmakers might respond to the recent mass shootings with measures such as expanded background checks and a ban on assault rifles. The state, he noted, has dealt with a series of mass shootings and soaring gun deaths among youths.

 “If guns made us safer, Tennessee should be one of the safest states in the country,” he said. “Instead, we have one of the worst gun violence problems in America.”

Hundreds of people gathered in Public Square Park in downtown Nashville on Wednesday for a vigil honoring those killed during this week’s shooting, cupping their hands around flickering white candles or shielding their eyes from the bright sun.

They embraced one another and wiped away tears, some singing along as the musician Ketch Secor performed “Will the Circle Be Unbroken?”

The seven children of Mike Hill, a beloved custodian killed in the shooting, joined Jill Biden, the first lady, Mayor John Cooper, local leaders and law enforcement officials.

On the steps of the courthouse and at City Hall, they left flowers.

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Wednesday, March 29, 2023

Memphis DA is opposed to the death penalty when he is not for it

Shelby County District Attorney Steve Mulroy announced his office's intent to seek the death penalty in the murder case against Ezekiel Kelly, who is accused of driving around Memphis and shooting people at random, reported the Commercial Appeal.

The announcement is the first time Mulroy has filed for the death penalty since he was elected to the office in August 2022. Mulroy has been a long-standing opponent of the death penalty.

"I've made no secret of my personal opposition to the death penalty as a public policy matter," Mulroy said at a Monday morning press conference. "Like I've said before, as a legislator, I'd vote against it. But I think that the people that voted for me understand that a DA has to follow the law, whether they agree with it or not... If this case isn't death notice worthy, then no case is."

Kelly, 19, has been charged with three counts of first-degree murder, along with 23 additional charges. The Sept. 7 shooting spree left three additional people injured.

Officials say Kelly started his shooting spree in the early hours of the day, when he allegedly shot and killed Dewayne "Sosa" Tunstall, a Memphis resident, before allegedly killing Allison Parker, a nurse in West Memphis, Arkansas, and Richard Clark, a 62-year-old who police say was shot as he sat in his car outside a gas station.

Mulroy said four factors affected the decision to pursue the death penalty. He cited a previous aggravated assault conviction, along with alleging Kelly committed "mass murder" during the spree. Mulroy also said the murders were "committed in the course of an act of terrorism," and his fourth factor was the randomness of the shooting.

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Tuesday, March 28, 2023

Do police have a reasonable expectation of privacy during a raid?

Do you have a reasonable expectation of privacy when you break into a famous rapper's house with an AR-15 and take his money? A group of Ohio sheriff's deputies thinks so, according to Reason.

Seven Adams County Sheriff's deputies have filed a lawsuit against Afroman for using footage of them raiding his house in several music videos, FOX19 reports. The deputies argue Afroman used their personas for commercial purposes without permission, causing them to suffer "embarrassment, ridicule, emotional distress, humiliation, and loss of reputation."

The Adams County deputies executed a search warrant on Afroman's house last August. According to a search warrant, Afroman was suspected of drug possession, drug trafficking, and kidnapping. The bust came up empty, and Afroman was never charged with a crime. Deputies did, however, seize more than $5,000 in cash, which they were ultimately forced to return. (The returned amount was $400 short, which an investigation later determined was due to a counting error by deputies.)

Afroman then used surveillance footage of the raid and cellphone video taken by his wife in two music videos, "Lemon Pound Cake" and "Will You Help Me Repair My Door." He also sold merchandise with images of the deputies and used the footage to promote his products and tours.

The complaint claims Afroman used their likenesses in dozens of social media posts, "subjecting them to undue ridicule."

"In some instances, it has made it more difficult and even more dangerous for Plaintiffs to carry out their official duties because of comments made and attitude expressed toward them by members of the public," the lawsuit says.

Of course, if they had spent their time solving real crimes instead of trundling around Afroman's house playing drug warrior, they would have remained happily anonymous.

The lawsuit seeks an injunction to take down the posts and videos, as well as more than $25,000 in damages.

In an Instagram post following the filing of the suit, Afroman shared a statement from his attorney Anna Castellini: "We are waiting for public records requests from Adam's county we still have not received. We are planning to counter sue for the unlawful raid, money being stolen, and for the undeniable damage this had on my clients family, career and property."

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Monday, March 27, 2023

Gideon at 60: SCOTUS ruling reinforces need for competent public criminal defense

Matthew T. Mangino
Pennsylvania Capital-Star
March 26, 2023

Last week marked the 60th Anniversary of the landmark U.S. Supreme Court decision Gideon v. Wainwright. In Gideon, the high court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer. 

A landmark decision is a court case that is studied because it has historical and legal significance.  The most significant cases are those that alter the legal landscape and have a lasting effect on the application of American jurisprudence.

Did the Gideon decision alter the legal landscape more than six decades ago? 

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.”

In 1932, the U.S. Supreme Court decided Powell v. Alabama. The court ruled that the U.S. Constitution requires defendants in capital cases, those facing the death penalty, be given access to counsel. 

Ten years later in Betts v. Brady, the court refused to extend the right to counsel to criminal charges other that capital murder. In Betts, it was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not violate the U.S. Constitution.

Then came Clarence Earl Gideon, a 51-year-old drifter and petty-thief.  He was charged with breaking and entering in Florida.  The charge was a felony and when Gideon first appeared before the court he was without funds, without counsel and he asked the court to appoint him a lawyer.

The judge apologized to Gideon and said that Florida law only provides for counsel in capital cases. Gideon replied, “The United States Supreme Court says I am entitled to be represented by counsel.”

Gideon represented himself, was convicted and appealed to the Florida Supreme Court. His appeal was denied and his case made its way to the U.S. Supreme Court.  The U.S. Supreme Court appointed a very capable attorney, Abe Fortas to represent Gideon.  Fortas would one day take a seat on the U.S. Supreme Court.

Fortas told the court that the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges. 

He also pointed out that 37 states provided for the appointment of counsel by statute, administrative rule or court decision.  Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, twenty-two state attorneys general joined Gideon in urging the court to establish an absolute constitutional right to counsel in criminal cases. 

Only five states — Florida, Alabama, Mississippi, North Carolina and South Carolina — did not provide counsel for indigent defendants.  

Justice George Sutherland wrote 30 years before Gideon, “Even the intelligent and educated layman has small and sometimes no skill in the science of law.”  Fortas argued in Gideon, “You cannot have a fair trial without counsel.”  

By modern standards, Justice Hugo Black’s opinion in Gideon was not very long — only about 2,500 words —  but what he said was compelling:  

“[R]eason and reflection require us to recognize that in our adversary system of criminal  justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

Sixty years after Gideon the focus has evolved from merely the right to counsel — to the right to effective representation.  That representation has turned from ensuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing. 

Today that job is literally overwhelming. Nearly half of all Americans have a loved one who is currently or formerly incarcerated.

More than 5 million people are under supervision by the criminal legal system. Nearly 2 million people, are living in jails and prisons, a 500% increase since 1973, April Frazier Camara, president of the National Legal Aid & Defenders Association, and colleagues, recently wrote in the USA Today.

America locks up more people for long periods of time than any other nation on earth.

Now, more than ever, this country needs competent public criminal defense. A body of lawyers not influenced by the resources of a particular county or state—or the activism of any court or legislative body.

If the right to counsel in America’s courtrooms is going to be more than mere lip service, money, time and resources must be invested in the defense of indigents accused of a crime. Their rights are our rights—a buffer between rogues, zealots, and demagogues.  

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, Pa.   He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at His work appears frequently on the Capital-Star’s Commentary Page.  

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Sunday, March 26, 2023

French: Is it wise to indict and prosecute a former president?

David French writing in The New York Times:

For the first time in American history, a hotly anticipated indictment of a former American president may actually be handed up. Manhattan’s district attorney, Alvin L. Bragg, seems set to bring charges related to Donald Trump’s allegedly paying off a porn star named Stormy Daniels to cover up their affair. There are, however, significant problems with the case.

Proving that Trump paid hush money to Daniels and unlawfully falsified records of the payments shouldn’t be difficult. In 2018, Michael Cohen, Trump’s former attorney and fixer, pleaded guilty to criminal campaign finance violations and admitted to paying a woman identifiable as Daniels $130,000 in exchange for her silence about her relationship with Trump. According to the Department of Justice, Cohen wasn’t merely reimbursed for this payment. He also received substantial additional sums to cover any tax liabilities connected with the reimbursement. These payments were allegedly falsely claimed as legal expenses by the company paying Cohen.

This basic narrative is the strongest part of the prosecution’s case. But not only is the underlying crime of falsifying business records a mere misdemeanor; the two-year statute of limitations expired long ago.

So how can Trump be prosecuted? If Bragg can prove that, contrary to New York State law, Trump falsified records when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof,” he can prove that Trump committed a felony, and a felony not only carries stiffer penalties; it has a five-year statute of limitations.

Still following? Good, because there’s more: New York law states that the limitation period, whether two or five years, does not include “any period following the commission of the offense” when “the defendant was continuously outside this state.” A 1999 New York Court of Appeals case held that the law meant that “all periods of a day or more that a nonresident defendant is out of state should be totaled and toll the statute of limitations.” Under that reading, that statute of limitations clock stopped ticking when Trump was away.

But what is the other crime that can convert a charge of records falsification to a felony? Most likely prosecutors will rely on an allegation of violating federal campaign finance law, specifically the claim that the hush money payments to Daniels were illegal campaign contributions. But this is also not a simple case to make: The prosecution may claim that state campaign finance laws apply to Trump, and his payments thus violated New York law, but remember we’re talking about a presidential election. A federal statute expressly states that the relevant campaign finance laws “supersede and pre-empt any provision of state law with respect to election to federal office.” This law represents a formidable barrier to prosecuting Trump under state campaign finance laws, and there is no obvious path around it.

Setting that aside, the claim that Trump violated federal law isn’t frivolous. The core question is whether the payments constituted campaign expenditures or mere personal expenditures, defined by Federal Election Commission rules as funds used “to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign.”

Trump’s likely defense to any federal charge is simple, that the hush-money payments had nothing to do with his campaign and everything to do with trying to spare his family the embarrassment of Daniels’s allegations. He’d make that payment anytime, regardless of whether he was running for president.

That’s a facially compelling argument, but in a 2018 National Review piece I argued that the weight of evidence indicates that it’s wrong. Daniels claims her affair with Trump started in 2006 and continued sporadically thereafter, yet the payments weren’t made until the heat of the final moments of a closely contested presidential campaign.

Even though I believe Cohen committed a campaign finance violation (and even though the Department of Justice mounted an unsuccessful prosecution of the 2004 Democratic vice-presidential nominee John Edwards on a similar legal theory), I’m still skeptical of Bragg’s Manhattan case. Ryan Goodman and Andrew Weissmann recently argued in these pages that “it would be anathema to the rule of law not to prosecute the principal for the crime when a lower-level conspirator”— meaning Cohen — “has been prosecuted.” Yet that’s exactly the choice the Department of Justice made. Neither the Trump nor the Biden Justice Departments brought federal charges against Trump. In addition, Cyrus Vance Jr., a previous Manhattan district attorney, investigated the same case and did not bring charges.

Add these factors, and Bragg’s case against Trump starts to look, well, unique. We’re talking about the first-ever indictment of a former president brought by a state district attorney — one that his predecessor didn’t choose to seek and that relies on federal criminal claims that the Department of Justice declined to prosecute.

It’s no wonder that even Bragg’s aggressive former prosecutor Mark Pomerantz was concerned that the Daniels case was, as The New York Times reported, “too risky under New York law.” A Reuters article described the legal theories supporting a prosecution for the Daniels payments as “untested.” A January New York Times story also accurately called the theories “largely untested.”

None of this justifies Trumpist attacks on the rule of law. Incitements to violence or Senator Rand Paul’s inflammatory declaration that Bragg should be “put in jail” demonstrate the extent to which the Trump movement thinks its leader should be exempt from conventional legal process. Trump — like any American defendant — has an opportunity to oppose criminal charges, in court, before a judge and a jury.

I believe very strongly that the president is not above the law. I also believe, as I wrote in a previous piece, that the rule of lenity should apply to all criminal defendants, including Trump. The rule of lenity, according to Cornell Law School’s Legal Information Institute, is a principle of statutory construction that states “when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant.” The government simply shouldn’t stretch the law to mount a criminal prosecution.

The best place to bring a Trump case related to the Daniels payoffs was in federal court, in the Southern District of New York. That’s where Cohen was prosecuted. That’s where Cohen pleaded guilty. That’s where criminal complaints about the relevant federal campaign violations should have been heard. But should state officials bring a state claim that depends on an accusation of having violated federal law when federal charges were never filed?

My conclusion is no and not because I believe that the Manhattan district attorney should grant a former president any degree of special deference. Nor is it because I necessarily think Trump’s conduct was legal. Trump is a citizen of the United States and should enjoy no more — and no less — legal protection than any of us. But no one should face the potential loss of liberty on a case that requires so much acrobatics to make, not even a man as corrupt as Donald Trump.

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Saturday, March 25, 2023

DOJ asks SCOTUS to review gun decision

The US Department of Justice (DOJ) filed a petition with the Supreme Court seeking a reversal of the US Court of Appeals for the Fifth Circuit’s decision in United States v. Rahimi, in which the court ruled that a law prohibiting access to firearms to persons under domestic violence restraining orders was unconstitutional, reported Jurist. The Fifth Circuit held that the law, 18 U.S.C. § 922(g)(8)(c), violated the Second Amendment on its face because it failed to comport to the nation’s “historical tradition.”

However, the DOJ cites a 1662 English law that empowered the Crown to seize arms from people deemed “dangerous to the kingdom.” The DOJ further argues that the law “fits squarely within the longstanding tradition of disarming dangerous individuals.” The Fifth Circuit originally affirmed the law’s constitutionality but withdrew their opinion after the Supreme Court’s recent decision in New York Rifle & Pistol Assn. v. Bruen. In that case, the Supreme Court struck down a New York state law prohibiting open carry in public places, holding that the law failed to pass an originalist reading of the Second Amendment.

Originalism is a school of constitutional interpretation that seeks to understand the Constitution as it would have been understood at its writing. This line of constitutional interpretation has drawn criticism from legal scholars. Critics such as Dean of Berkeley Law School Erwin Chemerinsky contend that “even the founders didn’t believe in originalism.” However, four justices of the Supreme Court—Amy Coney BarrettClarence ThomasNeil Gorsuch, and Brett Kavanaugh—are self-proclaimed originalists, while a fifth, Justice Samuel Alito, describes himself as a “practical originalist.” Even Justice Elena Kagan, part of the court’s liberal bloc, stated “We are all originalists now” in her confirmation hearing.

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Friday, March 24, 2023

Louisiana spent $7.7 million on death penalty defense, the state hasn’t executed anyone in 13 years

Louisiana spent $7.7 million providing legal defense to people facing the death penalty in 2022, according to the Louisiana Public Defender’s Office, even though the state hasn’t executed anyone in 13 years, according to the Louisiana Illuminator. 

The most recently Louisiana has put someone to death was Gerald Bordelon in January 2010, after he waived his right to legal appeals and fast-tracked his own killing. Prior to his death, Louisiana hadn’t executed anyone since 2002

State officials told a federal judge last spring they haven’t been able to obtain the drugs needed to carry out a lethal injection in years and stopped scheduling executions as a result. Gov. John Bel Edwards also doesn’t appear to be enthusiastic about capital punishment. He has refused to share his personal views on the death penalty.

Regardless of whether executions are moving forward, Louisiana must provide a vigorous defense for people who face death sentences. Federal law requires robust legal services and extra scrutiny for capital crimes. 

The Louisiana Public Defender Board outsources most of the state’s capital defense to five nonprofit organizations with attorneys who specialize in death penalty defense. Four of them – Louisiana Crisis Assistance Center, Capital Post-Conviction Project of Louisiana, Baton Rouge Capital Conflict, Inc. and the Capital Appeals Project – were among the top 10 most expensive legal contracts in all of state government in the last budget cycle, according to a state report on government contracts.

The $7.7 million spent last year covered initial trials, appeals and post-conviction legal challenges. It also includes approximately $195,000 for expert witnesses and extra funding to the public defender’s office in Jefferson Parish, which handles some of its own capital cases, according to State Public Defender Rémy Voisin Starns.

In 2022, there were only 18 open capital cases and two appeals across the state, Starns said, but his office is also responsible for the representation of approximately two-thirds of the 62 people who are on death row. The outside attorneys also work on cases where the death penalty is initially a possibility but doesn’t come into play.

Starns said the state would do better to eliminate capital punishment and spend that money on other public defender needs.

On Monday, he asked legislators for an additional $5 million to buy office buildings for public defenders around the state. He also wants to hire six social workers to help with juvenile defendants, who have a difficult time communicating with their assigned attorneys.

Caddo, Lafayette and East Baton Rouge parishes also need more local public defender staff attorneys, and the state should start offering all public defenders health insurance and retirement benefits, Starns said. Some local governments cover the cost of health insurance and retirement for their public defenders, but those benefits aren’t offered in every part of the state, he said.

In the last budget cycle, the governor and legislators spent $50.5 million from the state’s general funds on public defense, but one of its other main sources of funding is falling off a financial cliff. There’s been a drastic drop in the collection of traffic court fees across the state, which are used to pay for public defenders.

The number of traffic court filings in court went from 1.26 million in 2009 to just 475,335 in 2021, according to a budget presentation from legislative staff given Monday. That means public defense has been losing hundreds of thousands of dollars in revenue  each year for a few years in a row.

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Thursday, March 23, 2023

Study recommends enhancing judicial discretion in sentencing

Council on Criminal Justice
March 21, 2023

As cities across the nation grapple with effective responses to increases in violent crime, a task force co-chaired by former U.S. Deputy Attorney General Sally Yates and former U.S. Rep. Trey Gowdy today released a report outlining a comprehensive approach for the use of lengthy prison sentences in the United States. 

The report, How Long is Long Enough?, presents 14 recommendations to enhance judicial discretion in sentencing, promote individual and system accountability, reduce racial and ethnic disparities, better serve victims of crime, and increase public safety. Defining long sentences as prison terms of 10 years or longer, the panel’s proposals include:

  • ·         Shifting savings from reductions in the use of long prison sentences to programs that prevent violence and address the trauma it causes individuals, families, and communities (Recommendation 1).
  • ·         Allowing judges to consider all relevant facts and circumstances when imposing a long sentence, and requiring that sentencing enhancements based on criminal history are driven by individualized assessments of risk and other factors (Recommendations 6 and 8)
  • ·         Providing selective “second look” sentence review opportunities and expanding access to sentence-reduction credits (Recommendations 11 and 12)
  • ·         Focusing penalties in drug cases on a person’s role in a trafficking organization, rather than the amount of drug involved, (Recommendation 7)
  • ·         Reducing recidivism by providing behavioral health services and other rehabilitative living conditions and opportunities in prison (Recommendations 3 and 13)
  • ·         Strengthening services for all crime victims and survivors by enforcing victims’ rights, removing barriers to services, and creating restorative justice opportunities (Recommendations 2, 4, and 9)

“Some may wonder, why would we even discuss the nation’s use of long prison sentences now, amid a rise in homicide rates and legitimate public concern about public safety? Because this is exactly the time to examine what will actually make our communities safer and our system more just,” Yates and Gowdy said in a joint statement accompanying the report. “When crime rates increase, so do calls for stiffer sentencing, often without regard to the effectiveness or fairness of those sentences. Criminal justice policy should be based on facts and evidence, not rhetoric and emotion, and we should be laser-focused on strategies that make the most effective use of our limited resources.”

The report is the product of a year-long analysis by the nonpartisan Council on Criminal Justice (CCJ) Task Force on Long Sentences, which includes 16 members representing a broad range of experience and perspectives, from crime victims and survivors to formerly incarcerated people, prosecutors, defense attorneys, law enforcement, courts, and corrections. The panel examined the effects of long sentences on the criminal justice system and the populations it serves, including victims as well as people in prison, their families, and correctional staff. 

Drawing on sentencing data and research, including a series of reports prepared for the Task Force, the sweeping recommendations offer a comprehensive blueprint for action on a complex and polarizing topic. According to an updated analysis by CCJ, 63% of people in state prison in 2020 were serving a sentence of 10 or more years, up from 46% in 2005, a shift due largely to a decline in people serving shorter terms. During the same period, the gap between Black and White people receiving long terms widened, from half a percentage point to 4 percentage points. Though murder defendants were the most likely to receive a long sentence, drug offenses accounted for the largest share (20%) of those admitted to prison to serve 10 or more years.

“Our nation’s reliance on long sentences as a response to violence requires us to wrestle with highly challenging questions about the relationship between crime, punishment, and public safety,” Task Force Director John Maki said. “Through their painstaking deliberations, our members rose to the challenge and produced a set of recommendations that recognize our need to advance public safety while respecting the humanity of those most affected by long prison terms.”

To view the recommendations, as well as research briefs, meeting summaries, and additional perspectives shared by members, please visit the Task Force website. Participants on CCJ task forces are asked to join a consensus signifying that they endorse the general policy thrust and judgments reached by the group, though not necessarily every finding and recommendation. 

Key Research Findings

To inform its deliberations, the Task Force commissioned and reviewed research on a wide range of topics, including:

  • ·         The public safety impact of shortening lengthy prison sentences. Based on first-of-their-kind calculations, this research estimated that reducing long terms in Illinois (the state providing the data) would result in a very small increase in arrests of any kind, and almost none for violent or weapons offenses.
  • ·         The impacts of long sentences on public safety. Summarizing the existing research on deterrence and incapacitation, the analysis finds that there are crime-reducing effects but that they are limited and vary by offense.
  • ·         International comparisons. Researchers conducted original calculations to show that the U.S. remains a global outlier in its use of long prison sentences, even after accounting for the much higher homicide rate in the U.S., compared to Europe, and for actual prison time served (vs. sentence length).
  • ·         Trends in the use of long prison sentences. Serving as a foundation for the Task Force’s work, this analysis shows how state prison admissions, the standing prison population, and releases changed from 2005 to 2019 and breaks down the trends by offense type, race, age, and sex.
  • ·         Factors affecting time served in prison. Researchers examined how parole and other “back end” discretion decisions influence how long people actually serve behind bars.

·         Perspectives of crime victims, formerly incarcerated individuals, and their families. Through a series of interviews, victims and survivors offered their views on the role of long sentences in achieving accountability and justice.


Wednesday, March 22, 2023

Idaho about to authorize firing squads to carry out executions

 Idaho is poised to allow firing squads to execute condemned inmates when the state can’t get lethal-injection drugs, under a bill the Legislature passed with a veto-proof majority, reported The Associated Press.

Firing squads will be used only if the state cannot obtain the drugs needed for lethal injections — and one death row inmate has already had his scheduled execution postponed multiple times because of drug scarcity.

The move by Idaho lawmakers is in line with those by other states that in recent years have scrambled to revive older methods of execution because of difficulties obtaining drugs required for longstanding lethal injection programs. Pharmaceutical companies increasingly have barred executioners from using their drugs, saying they were meant to save lives, not take them.

Idaho Republican Gov. Brad Little has voiced his support for the death penalty but generally does not comment on legislation before he signs or vetoes it.

Only Mississippi, Utah, Oklahoma and South Carolina currently have laws allowing firing squads if other execution methods are unavailable, according to the Death Penalty Information Center. South Carolina’s law is on hold pending the outcome of a legal challenge.

To read more CLICK HERE

Tuesday, March 21, 2023

Monday, March 20, 2023

Marsy's Law being challenged in state courts across the country

Starting with California in 2008, a dozen states have adopted the bundle of state constitutional amendments known as “Marsy’s Law,” promoted as giving crime victims important new legal rights. Civil libertarians have warned from the start that the package curtails the legitimate rights of criminal defendants and the interests of a free and vigorous press. Legal challenges now pending before state high courts in Wisconsin and Florida suggest they’re right, reported The Brennan Center.

The Marsy’s Law campaign is the brainchild of tech billionaire Henry Nicholas, who took up the cause following the murder of his sister. The packages typically include rights for crime victims to be notified of, attend, and sometimes speak at legal processes involving a defendant; rights not to be publicly identified in ways that could expose them to harassment or retaliation; and rights to refuse interviews or depositions taken at the request of the accused.

One threshold problem appears from the start: these laws designate some persons as victims at a point when no court has yet found that the defendant or anyone else has committed a crime against them. Yet not all claims of victimization pan out.

Voters in Florida and Wisconsin, like those in many other states, approved Marsy’s Law constitutional amendments by wide margins in 2018 and 2020, respectively. In a challenge argued in September before the Wisconsin Supreme Court, plaintiffs said the ballot description of the measure was incomplete and misleading and that the package enacted into law consisted of numerous disparate measures notwithstanding Wisconsin’s rule requiring a ballot measure to address only one subject. State high courts in Pennsylvania and Montana have struck down Marsy’s Law enactments as in breach of their states’ single-subject rules.

The Wisconsin ballot language read as follows:

Question 1: “Additional rights of crime victims. Shall section 9m of article 1 of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?”

According to the plaintiffs’ brief, this wording did not inform voters that it was rolling back rights of the accused or changing them in any way. On a hasty reading, in fact, voters might conclude the opposite.

The process dispute here points to an important disagreement on substance. Marsy’s Law proponents regularly argue that the laws don’t weaken the rights of criminal defendants. But there’s little doubt that the Wisconsin package does exactly that. For example, it “limits discovery available to defendants by allowing victims [t]o refuse an interview, deposition, or other discovery request,” argues a brief from the ACLU of Wisconsin. A brief from public defenders says it’s “common for documents to be more heavily redacted or not disclosed in the name of ‘Marsy’s Law’” and that “the accused’s diminished discovery rights have been narrowed further with the amendment.”

In addition, the ACLU argues, a provision granting victims the right to attend all proceedings does so by deleting a previous qualifying phrase recognizing their right to attend “unless the trial court finds sequestration is necessary to a fair trial for the defendant.”

Note also the description’s curious language about how the measure creates rights for victims “while leaving the federal constitutional rights of the accused intact.” That seeming concession of course is no real concession at all since a state has no power to curtail federal constitutional rights. As the public defenders’ brief notes, “this provision simply states what is already required.”

It gets worse. The package in fact removed from the language of a previous victims’-rights enactment stating that nothing in it “shall limit any right of the accused which may be provided by law.” It’s hard to avoid the conclusion that Wisconsin drafters of the package knew they were curtailing valuable state-level rights of the accused.

The Florida case, argued in December, arises from one of the law’s most bizarre effects and highlights another set of rights it may undermine: by asserting victim status, police in some Marsy’s Law states regularly block the release of their names after violent encounters with the public. A police union sued to prevent Tallahassee from releasing the names of two officers involved in fatal shootings, citing the law’s ban on disclosure of “information or records that could be used to locate or harass the victim or the victim’s family.” The city did not plan to charge the officers with wrongdoing but wanted to reassure the public through openness that its department had acted properly in the encounters.

But using Marsy’s Law this way may conflict with Florida’s Sunshine Amendment, a constitutional provision guaranteeing strong rights of public access to government records. The trial court ruled that it couldn’t harmonize the use of Marsy’s Law as a shield in instances of alleged misconduct with Floridians’ right to “hold government accountable by inspecting state records.” An intermediate appellate court, ruling for the officers and reversing the trial court, however, found no such problem. It ruled that the public records provisions yield when other constitutional provisions exempt records from disclosure.

Whatever the outcome of the Wisconsin and Florida cases, advocates and policymakers should be on notice that Marsy’s Law generates outcomes that are hard to defend in principle. 

To read more CLICK HERE

Mangino's column appears in book 'Juvenile Law'

Read Juvenile Law a book edited by Heidi Watkins published by Greenhaven Publishing LLC with a chapter exploring a column I wrote on juvenile life without parole for The Pennsylvania Law Weekly. 

To read the Chapter CLICK HERE

Saturday, March 18, 2023

Mangino provides trial analysis for Law and Crime Network

Watch my analysis for the Law and Crime Network of the ice cream man double murder retrial of Michael Keetley in Florida.

 To watch the interview CLICK HERE

Friday, March 17, 2023

John Jay College: NYC bail reform laws reduced recidivism

Controversial new state bail laws that some politicians say lead to offenders getting released and then rearrested actually had the opposite overall effect, according to a new study of criminal justice data, reported by the Gothamist a New York City non-profit newsroom.

The study, from John Jay College’s Data Collaborative for Justice, showed that the 2020 bail reform laws eliminating judges’ ability to impose bail for low-level crimes actually reduced the likelihood that someone would get arrested again.

The one exception was for bail-eligible people who were released following recent violent felony arrests. The rate of rearrests for that cohort of offenders increased slightly.

“Fundamentally, we found that eliminating bail for most misdemeanors and nonviolent felonies reduced recidivism in New York City, while there was no clear effect in either direction for cases remaining bail eligible,” said Michael Rempel, director of John Jay College’s Data Collaborative for Justice, in a statement.

The study did not delve into the reasons behind the relative lack of recidivism among those who were released without having to pay bail. But experts have said that even temporary incarceration can lead to termination from jobs, family disruption and housing loss, which can incentivize further criminal activity.

The purpose of the 2020 reform laws was to allow people charged with most misdemeanors and nonviolent felonies to be released while their cases played out in court. That meant they didn’t have to choose between paying bail and going to the dangerous Rikers Island jails. Instead, judges had to release people under other conditions like supervised release, which involves nonprofit agencies in the community doing monitoring and support.

The reforms were designed to reduce incarceration and stop putting people in jail just because they could not afford to post bail. But since the laws went into effect, politicians who oppose bail reform — such as Democratic Mayor Eric Adams — and conservative outlets like The New York Post, have argued that the laws went too far and led to violent criminals roaming free on city streets.

"We have a recidivism problem in New York and far too many people, there's about 2,000 people who are repeatedly catch, release, repeat in crimes," Adams said earlier this month. "If we don't take them off our streets, they're going to continue to prey on innocent people."

This new study found that the two-year rearrest rate for those released due to bail reform was 44%, compared to 50% for those with similar charges, criminal histories and demographics who were held in jail in the period before the reform.

It also took longer for those released as a result of bail reform to get rearrested than those forced to do a stint in jail after being charged.

Since the bail reform measures passed in 2019 and 2020, the new laws’ effect on crime has been perhaps the most debated topic in New York politics. It was a central focus of last year’s state elections, with Republicans and conservative Democrats alike claiming it led to spikes in crime, especially shootings and burglaries, because people were released without bail and went on to commit illegal acts. But so far data to prove that assertion has been limited, as have analyses countering the argument.

Tuesday's report tracked alleged offenders over a longer period than prior studies — including the time after cases were disposed of — and compared rearrests of those released pretrial due to bail reform and other statistically similar people who were held in jail.

“Our goal with this study was to substantially upgrade the credibility of information known to New Yorkers about bail reform and recidivism,” said Rempel in a statement.

Bail reform remains a hotly debated topic. Gov. Kathy Hochul is now seeking to eliminate the mandate that judges impose the “least restrictive condition” necessary on those charged with crimes still eligible for the imposition of bail, like violent felonies. The change would give more discretion to judges to allow them to impose higher bail amounts in order to keep more people locked up pretrial if they can’t afford to pay. But opponents say the proposal is unconstitutional.

The bail reform laws were initially passed in 2019 and modified in 2020 and 2022. The latest modifications went into effect in May and were not part of the John Jay study.

Offenses that are still not eligible for mandatory release are almost all violent felonies, sex offenses and certain domestic violence cases. Judges can order holding certain repeat offenders and those deemed a flight risk.

To read more CLICK HERE