Mangino provides expert legal analysis for WFMJ-TV News

Watch my interview with Lindsay McCoy on WFMJ-TV21 regarding Hunter Biden's closed deposition and Bryan Kohberger's pretrial hearing.

To watch the interview CLICK HERE

Mangino interviewed by Newsweek about Trump fraud trial

My comments to Kate Plummer of Newsweek concerning the New York Fraud verdict against Donald Trump:

Matthew Mangino, a former district attorney in Lawrence County, Pennsylvania told Newsweek "we are far from" the point of Trump selling assets.

He said: "As I understand, Trump must pay the fines or post and bond pending an appeal. I'm sure he isn't paying the penalty. Posting a bond would be more manageable. The bond would only be a fraction of the penalty.

"If James were to seize any of his buildings they would have to go through a legal sale," he said. "The value would be what the market can bear, how much is someone, or some entity, willing to pay for the building(s)?"

"I think we are far from that point, he will post a bond and appeal," Mangino said.

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Mangino a guest on Crime Stories with Nancy Grace

Listen to my discussion with Nancy Grace regarding the latest developments in the Delphi murders on Crime Stories.

To listen to the interview CLICK HERE

In some Mississippi counties criminal defendants are on their own

The right to an attorney is fundamental to the U.S. justice system. Yet, in a small Mississippi court off the interstate between Jackson and Memphis, that right is tenuous, reported ProPublica and The Marshall Project.

The two judges in Yalobusha County Justice Court appointed lawyers for just 20% of the five dozen felony defendants who came before them in 2022, according to a review of court records; nationally, experts estimate that lawyers are appointed to at least 80% of felony defendants at some point in the legal process because they’re deemed poor. In this court, the way these two judges decide who gets a court-appointed attorney appears to violate state rules meant to protect defendants’ rights. A few defendants have even been forced to represent themselves in key hearings.

This article was produced in partnership with the Northeast Mississippi Daily Journal, formerly a member of ProPublica’s Local Reporting Network, and ProPublica.

Despite the Sixth Amendment’s guarantee that everyone gets a lawyer even if they’re too poor to pay for one, most felony defendants in this court went without any representation at all before their cases were forwarded to a grand jury, according to a review of one full year of court files by the Northeast Mississippi Daily Journal, The Marshall Project and ProPublica. (Read more about how we analyzed the court’s appointment rate in our methodology.)

“That is a huge problem,” said André de Gruy, who leads a state office that handles death penalty cases and felony appeals but has no power over local public defense. “I believe almost every one of those people would like a lawyer and is unable to afford one.”

For decades, civil rights advocates and legal reformers have complained that Mississippi is among the worst states in the country in providing attorneys for poor criminal defendants. It’s one of a handful of states where public defense is managed and funded almost entirely by local governments, and the way they do so varies greatly from county to county. Defendants in some places see appointed lawyers quickly and remain represented thereafter; elsewhere, sometimes right over the county line, defendants can wait months just to see a lawyer or can go long periods without having one at all.

The Mississippi Supreme Court, which oversees how state courts operate, has issued several rules in recent years that were intended to drive improvements. But it is up to locally elected judges to carry out those mandates, and there’s no oversight to make sure they’re doing it right.

Much like Mississippi, Texas places primary responsibility for public defense on counties. A state commission in Texas investigates the counties with low appointment rates; a felony appointment rate below 50% would raise serious questions about a county’s compliance with state law, according to current and former officials there. In Mississippi, state officials don’t even know how often judges appoint attorneys.

To read more CLICK HERE

 

The origins of canine use in law enforcement

State-sanctioned canine attacks–like those implemented by modern police canine units–were common in chattel slavery, reported The Appeal. Legal scholar Madalyn Wasilczuk speaks of how white enslavers “conceived of an enslaved person’s attempt to obtain freedom as a type of high-value property theft, appropriately recaptured with brute force.” The use of dog attacks to preserve enslavers’ economic interests was legal, and thus not a rare act committed by a few bigots. Wasilczuk explains that the Fugitive Slave Act of 1850 federally legalized slave patrols’ ability to seize slaves in free states, often accompanied by hunting dogs—and the act was later nicknamed “the Bloodhound Bill” as a result. Legal scholar Michael Swistara stresses that these dog attacks were intentionally gruesome. Swistara explains how, as early as the 1700s, records show enslavers “bred Cuban bloodhounds with the explicit purpose of raising them to enact violence against Black people” and “the scars of dog bites were so common that they” were physical badges of slavery, becoming “marks used to identify [Black] escapees in advertisements for rewards.”

In addition to the violence these dogs inflicted, the dogs themselves were also forced, nonconsenting partners. Swistara correctly argues that police dogs were and still are themselves subjugated under the carceral state as disposable weapons used to perpetuate racial and economic inequality. Slaveholders had to deliberately break the bond between humans and dogs, humanity’s best friend. To conscript dogs into Black people’s racial subjugation and make the animals feel animosity towards Black people, “enslavers trained dogs by forcing enslaved people to beat the dogs[…]while others arranged planned chases or commanded dogs to attack enslaved people who had been forced to secure themselves to trees.”

Furthering this divide, slaveholders would feed their dogs rich diets of meat while denying the same to enslaved people. The institution of slavery was so desperate to suppress any bonds between enslaved people and dogs that these states even made it illegal for enslaved people to have dogs, claiming dog ownership constituted weapon possession. Despite the fact that dogs had to be trained to recognize and attack Blackness as they could not detect inherent racial differences, many “white Southerners, including Thomas Jefferson, believed that Black people smelled, looked, felt, and tasted different such that their dogs could detect differences between races imperceptible to humans but objectively present.” As Wasilczuk aptly summarizes, ultimately, “in treating dogs’ perceptions of their handlers’ prejudices as innate, white Southerners employed their animals in the project of race- making and racialized subordination.” Dogs thereby became forced partners to state violence.

To read more CLICK HERE

 

Michigan man charged under new law after 2-year-old shoots self

A Michigan man whose 2-year-old daughter shot herself in the head with his revolver last week became the first person charged under the state’s new law requiring safe storage of guns, just days after the new measure took effect as part of a sweeping reform of gun regulations in the state, reported The Associated Press.

Michael Tolbert, 44, of Flint, was arraigned Monday on nine felony charges including single counts of first-degree child abuse and violation of Michigan’s gun storage law, said John Potbury, Genesee County’s deputy chief assistant prosecuting attorney.

Tolbert’s daughter remained hospitalized Wednesday in critical condition from the Feb. 14 shooting, Potbury said. The youngster shot herself the day after Michigan’s new safe storage gun law took effect.

A not guilty plea was entered Monday on behalf of Tolbert, who also faces one count each of felon in possession of a firearm, felon in possession of ammunition, lying to a peace officer in a violent crime investigation and four counts of felony firearm, Potbury said.

He said Tolbert is barred from possessing firearms and ammunition because he has multiple firearms-related felony convictions and drug-related convictions.

Tolbert was being held at the Genesee County Jail on bond amounts totaling $250,000, according online court records.

He became the first person charged with violating the law, which took effect on Feb. 13, the one-year anniversary of when a gunman entered a classroom at Michigan State University, killing two students and leaving others critically wounded.

The law took effect a week after a Michigan jury convicted a shooter’s mother of involuntary manslaughter, making her the first parent in the U.S. to be held responsible for a child carrying out a mass school shooting. Gun accessibility was an issue in the trial and investigators say Jennifer and James Crumbley failed to properly secure the gun. James Crumbley faces trial on the same charge next month in the 2021 shooting at Oxford High School that killed four students.

To read more CLICK HERE

 

Mangino a guest on Court TV

Watch  my interview with Julie Grant on Court TV, discussing high profile criminal trials in the news.

To watch the Interview CLICK HERE and CLICK HERE

Local ordinance restricting firing of guns upheld by PA Supreme Court

A township ordinance that limits firing guns to indoor and outdoor shooting ranges and zoning that significantly restricts where the ranges can be located do not violate the Second Amendment, Pennsylvania’s Supreme Court ruled, according to The Associated Press.

The man who challenged Stroud Township’s gun laws, Jonathan Barris, began to draw complaints about a year after he moved to the home in the Poconos in 2009 and installed a shooting range on his 5-acre (2.02-hectare) property. An officer responding to a complaint said the range had a safe backstop but the targets were in line with a large box store in a nearby shopping center.

In response to neighbors’ concerns, the Stroud Township Board of Supervisors in late 2011 passed what the courts described as a “discharge ordinance,” restricting gunfire to indoor and outdoor gun ranges, as long as they were issued zoning and occupancy permits. It also said guns couldn’t be fired between dusk and dawn or within 150 feet (45.72 meters) of an occupied structure — with exceptions for self-defense, by farmers, by police or at indoor firing ranges.

The net effect, wrote Justice Kevin Dougherty, was to restrict the potential construction of shooting ranges to about a third of the entire township. Barris’ home did not meet those restrictions.

Barris sought a zoning permit after he was warned he could face a fine as well as seizure of the gun used in any violation of the discharge ordinance. He was turned down for the zoning permit based on the size of his lot, proximity to other homes and location outside the two permissible zoning areas for ranges.

A county judge ruled for the township, but Commonwealth Court in 2021 called the discharge ordinance unconstitutional, violative of Barris’ Second Amendment rights.

In a friend-of-the-court brief, the Pennsylvania attorney general’s office aligned with the township, arguing that numerous laws across U.S. history have banned shooting guns or target practice in residential or populated areas.

Dougherty, writing for the majority, said Stroud Township’s discharge ordinance “is fully consistent with this nation’s historical tradition of firearm regulation.” He included pages of examples, saying that “together they demonstrate a sustained and wide-ranging effort by municipalities, cities, and states of all stripes — big, small, urban, rural, Northern, Southern, etc. — to regulate a societal problem that has persisted since the birth of the nation.”

In a dissent, Justice Sallie Updyke Mundy said Barris has a constitutional right to “achieve competency or proficiency in keeping arms for self-defense at one’s home,” and that the Second Amendment’s core self-defense protections are at stake.

To read more CLICK HERE

Massachusetts school district asks governor for national guard

Members of the Brockton School Committee urged the city’s mayor to ask Massachusetts Governor Maura Healey for National Guard support, reported Jurist. Student violence and a high rate of teacher absences instigated the request. Four committee members—Joyce Asack, Tony Rodrigues, Claudio Gomes, and Ana Oliver—specifically requested that temporary National Guard support be deployed at Brockton High School but also voiced concern for the middle school and elementary levels. The school board called for order to be restored, safety for all on the school premises, and an urgent need to address the root causes of what the officials call an educational ‘crisis’ and ‘potential tragedy.’

The letter to the mayor cites instances of students aimlessly wandering the halls, serious physical altercations, and 35 teachers regularly calling in absent. Recent weeks have also seen an uptick in students leaving school grounds without permission and adult trespassers being found on school property. In a press conference, local news WCVB said the committee emphasized that these incidents undermine the learning environment, “jeopardize the integrity of statewide testing processes,” and compound health and safety risks for the students and staff.

The committee members believe the National Guard’s expertise in crisis management and community support could provide a vital temporary intervention. Boston25 news reported committee member Tony Rodrigez stated, “ the National Guard brings positivity, we used them to deploy Covid vaccinations….we are looking for them to step in and act as substitute teachers and hall monitors.”

However, other members of the Brockton High School committee and the mayor voiced concern over the request for the National Guard, citing the militarizated presence might infringe on students’ civil liberties and create an intimidating environment. No official statement from Maura Healey, the Governor of Massachusetts, regarding the request to deploy the Massachusetts National Guard at Brockton High School.

To read more CLICK HERE

Mangino a guest on Law and Crime Network

Watch my interview with Michelle Yu on the Law and Crime Network discussing the hearing to disqualify Fani Willis from the Trump prosecution in Georgia.

To watch the interview CLICK HERE

Fani Willis hearing not a good look for DA's office or special county prosecutor

At some point in the coming weeks or months, the Georgia criminal case against former President Donald J. Trump and his allies will presumably focus once again on the defendants and whether they conspired to overturn Mr. Trump’s election loss there in 2020, reported The New York Times.

But the extraordinary detour that the case has taken, plunging into the intimate details of a romantic relationship between the two lead prosecutors and forcing them to fight accusations of impropriety, may have changed it fundamentally. Now it is unclear whether the case will even remain with Fani T. Willis, the district attorney of Fulton County, since lawyers for Mr. Trump and other defendants are seeking to have her entire office disqualified.

Even if the presiding judge allows Ms. Willis to keep the case, she is likely to face tough scrutiny from now on, including from a new state commission that will be able to remove prosecutors and from the Georgia Senate, which has opened an investigation.

The controversy has also provided fresh fodder for Mr. Trump and his allies, who are adept at exploiting their opponents’ vulnerabilities. Mr. Trump was already making inflammatory attacks on Ms. Willis even before her relationship with Nathan J. Wade, the lawyer she hired to help run the election interference case, came to light.

If nothing else, Ms. Willis’s decision not to disclose her relationship with Mr. Wade from its outset has created a messy diversion from an extremely high-stakes prosecution. Even if the revelations do not taint a jury pool in Fulton County, where Democrats far outnumber Republicans and Ms. Willis has many admirers, her world-famous case could face a lasting perception problem. And if the case gets taken from her, more serious problems may follow.

Judge Scott McAfee of Fulton County Superior Court suggested on Friday that he is likely to not rule next week on whether the relationship created a disqualifying conflict of interest. But already, state officials are considering what might happen if Ms. Willis, who has given no indication that she will step aside voluntarily, has to hand off the case to another district attorney in the state.

“You have to find an office that has the resources to handle this type of case, and there are less than a handful,” Pete Skandalakis, the executive director of the Prosecuting Attorneys’ Council of Georgia, said in an interview. “You can’t go to a rural D.A.’s office that only has seven or eight prosecutors and say, ‘Can you take on this case?’”

The Trump case is an expansive racketeering prosecution involving 15 defendants and a hive of assistant district attorneys who have been steeped in it for several years. One of the nation’s top racketeering experts works on Ms. Willis’s team and helped draw up the case.

Ms. Willis herself has years of experience in prosecuting racketeering cases, and has so far extracted guilty pleas from four of the initial 19 defendants. Before the conflict-of-interest allegations emerged, she had hoped to go to trial in August, a prospect that now seems less likely than ever.

Skandalakis would be in charge of reassigning the case, if it comes to that. Among the considerations, he said, would be “how far” from Fulton County a new prosecutor would be. That probably means that the case would fall to a district attorney’s office in the Atlanta region. A new prosecutor could essentially do as he or she pleased with the case, and could even decide to drop all the charges.

Flynn D. Broady Jr., the district attorney of Cobb County, next to Atlanta, and a Democrat like Ms. Willis, said that if he were asked to take over the Trump case, “I would review the case file, to make an informed decision” about moving forward with the prosecution.

Underscoring the risks for Ms. Willis, Judge McAfee has said that even the appearance of a conflict could lead to disqualification. The fact he allowed an evidentiary hearing on the allegations against her revealed that he viewed the matter seriously.

The crux of the defense team’s argument is that the romantic relationship between Ms. Willis and Mr. Wade presented an untenable conflict of interest, because it gave the two prosecutors a financial incentive to draw out the case. Ms. Willis’s office has paid Mr. Wade more than $650,000 since his hiring in November 2021.

Both Ms. Willis and Mr. Wade have denied that she benefited financially from his hiring. They have said that their relationship started in early 2022, after she hired him, and that it ended last summer. But in court this week, a former friend of Ms. Willis testified that the relationship had started much earlier. (The witness, Robin Bryant-Yeartie, had worked in Ms. Willis’s office, but they stopped speaking after Ms. Bryant-Yeartie resigned in 2022 to avoid being fired.) 

If nothing else, the hearing created a spectacle, not least when Ms. Willis took the witness stand for several hours on Thursday.

There were furious volleys among lawyers, spiced with accusations of lies and perjury, and details about the onetime couple’s travels to vacation destinations like Belize, where they may or may not have visited a tattoo parlor. There was Ms. Willis’s tart assessment of their breakup. Her office even called her 79-year-old father to the stand to corroborate his daughter’s assertions that she reimbursed Mr. Wade with thousands of dollars in cash for their trips; he said storing up large amounts of cash was “a Black thing.”

Ms. Willis did try at one point during the melodramatic hearing to remind those tuning in of her case against Mr. Trump, which at times has seemed a distant memory since the conflict-of-interest allegations came about. “These people are on trial for trying to steal an election in 2020!” she exclaimed at one point. “I’m not on trial. No matter how hard you try to put me on trial.”

There is already precedent within the Trump case for disqualification. In July 2022, a judge blocked Ms. Willis from developing a case against Burt Jones, a fake Trump elector in Georgia 2020, because Ms. Willis had hosted a fund-raiser for one of Mr. Jones’s political rivals.

A year and a half later, no replacement prosecutor has yet been named to look into a potential case against Mr. Jones, now Georgia’s lieutenant governor.

But Mr. Skandalakis noted that unlike back then, indictments have been handed up. “That makes it different,” he said.

A weakened or deposed Fani Willis is a win for Mr. Trump. Half a dozen swing states are now conducting criminal investigations of the 2020 plot to keep the former president in power, but Ms. Willis remains the only one of those prosecutors who has brought charges against Mr. Trump himself.

Sherry Boston, the district attorney of DeKalb County, in suburban Atlanta, declined to comment on whether she would consider taking the case should Ms. Willis be disqualified. Patsy Austin-Gatson, the district attorney of Gwinnett County, also outside Atlanta, said in an email, “We of course do not have a predisposition about whether our office would consider accepting the case.”

Richard Painter, a law professor at the University of Minnesota and a former White House ethics lawyer, said he did not think the evidence so far met Georgia’s legal standard for disqualifying Ms. Willis.

Still, he said he thought it would be “best for the case that Willis voluntarily resign and that Wade also not continue to work on the case.”

Finding another prosecutor willing to take over her case will not be easy, particularly given the menacing threats that led Ms. Willis to abandon her house and require constant security.

Testifying at the hearing this week, Roy Barnes, a former governor of Georgia, recounted what he told Ms. Willis when she asked him, early on, to help lead the Trump prosecution.

“I’d lived with bodyguards for four years, and I didn’t like it,” he said. “I wasn’t going to live with bodyguards for the rest of my life.”

To read more CLICK HERE

Conversation at police station between suspects not protected by Miranda

The US Court of Appeals for the Eleventh Circuit reinstated a Florida man’s conviction, following a challenge that the police department violated the man’s Miranda rights, reported Jurist.

Jimmie Bowen was arrested for his alleged involvement in gang related violence. After being advised of his Miranda rights, Bowen invoked his right to counsel. Some time after, Bowen was moved to a new interrogation room with another suspect who had waived his Miranda rights. The suspects began discussing the event and revealed incriminating information, which was being recorded by police.

Bowen moved for these statements to be suppressed, arguing that placing the two suspects in the same room was an interrogation, violating his Miranda rights. Once a suspect invokes his right to counsel, the police are not allowed to continue interrogations without counsel being present. The incriminating statements were used at trial and Bowen was convicted.

The appeals court disagreed with Bowen, stating “Miranda does not require a warning, or otherwise impose restrictions, anytime police speak with someone–even if that someone is a suspect. Instead, its protections apply only in custodial interrogation.” The court went on to state that this was not a custodial interrogation, as Bowen spoke to the other suspect “because he wanted to,” and knew he could refuse.

To read more CLICK HERE

Kentucky passes bill to automatically transfer some juvenile offenders to adult court

Kentucky’s Senate passed a bill that would automatically transfer children charged with certain violent felonies to adult court, reported Jurist. The bill passed the chamber by a vote of 25-9.

Senate Bill 20 stated that children age fifteen or older charged with a “Class A, B, or C felony” will face trial as adults if a firearm was used in the “commission of the offense.” The classes of felonies cover offenses such as homicide, robbery, human trafficking and sexual offenses. Trial as an adult would proceed regardless of whether the firearm was functional or not.

The bill is intended to replace Chapter 132 of An Act Relating to Children, passed in 2021. Currently, judges and district attorneys have the discretion to transfer children charged with violent felonies involving forearms to adult court. Additionally, transfers, if found to be unwarranted, may be reversed. An amendment to Senate Bill 20 also allows unwarranted transfers to be reversed.

Senate Bill 20 was introduced by state Senator Matthew Deneen (R). Deneen stated during a Senate Veterans, Military Affairs and Public Protection Committee hearing that the bill was needed to combat a “spike” in violent crime. He also stated that the bill would advance the needs of “victims before perpetrators.” While violent crime spiked in the state during the COVID-19 pandemic, a report by the Kentucky State Police found that overall serious crime rates fell across the state in 2022.

The bill must now pass Kentucky’s Republican-controlled House of Representatives before going to Governor Andy Beshear (D) for signing. The measure is one of many criminal policy changes under consideration in the state.

Kentucky has the eighth-highest imprisonment rate in the US, according to The Sentencing Project. The state also has large racial disparities in its incarcerated population. A Prison Policy Initiative prison profile of the state registered Black residents imprisoned at rates nearly four times higher than white residents.

To read more CLICK HERE

 

Doctors argue 'excited delirium' has no medical foundation

 Organizations, including Physicians for Human Rights, argue that excited delirium has no medical foundation and that its origins are plagued with racism, reported the ABA Journal. The term’s role in high-profile police misconduct cases, including the deaths of Ellis, Elijah McClain, and George Floyd has prompted major medical organizations to repudiate its use.

A movement begins to ban excited delirium

In October, California became the first state to ban the use of excited delirium as a cause of death in medical examiner reports—prompted by the 2021 death of Angelo Quinto, a Filipino American veteran who was experiencing a mental health crisis and died after police kneeled on his back for five minutes. Medical examiners described the cause of death as excited delirium, and a later coroner’s report called the death an accident rather than a homicide.

Roger Mitchell, a professor of pathology at Howard University, says excited delirium should not be used as a cause of death because it includes a constellation of symptoms but no pathophysiological mechanism. “It’s not specific in all the symptoms that have been attributed to it,” Mitchell said. “You can have all or you can have none. At the end of the day, the mechanism that leads to death is often either cardiac, respiratory, or metabolic.”

In 2020, the American Psychiatric Association (APA) issued a statement saying it does not recognize excited delirium as a mental disorder, and in 2021, the American Medical Association stated that excited delirium is not an official diagnosis. The National Association of Medical Examiners followed suit in 2023, stating it should no longer be cited as a cause of death. The APA’s Diagnostic and Statistical Manual of Mental Disorders has never recognized excited delirium, but does list “delirium, hyperactive type,” a more limited and specific diagnosis.

Others, however, such as James Gill, Connecticut’s chief medical examiner and author of a 2014 paper describing excited delirium as a valid diagnosis, believe that a life-threatening condition—often involving drug use—exists and can result in paranoid, agitated and violent behavior that needs medical terminology to describe it.

Gill notes that stimulants, such as cocaine and methamphetamine, can produce a surge in adrenaline and other hormones, which can lead to a surge in blood pressure, an irregular heartbeat, and in some cases, death. “Sometimes that happens before the police ever show up,” Gill says. “Sometimes it happens while the police are subduing the person. Sometimes it happens in the emergency room or the ambulance.”

The American College of Emergency Physicians—whose policies inform decisions made by paramedics and first responders—published a controversial 2009 paper that was often used to allow court testimony in favor of excited delirium.

But in 2023, after a grassroots effort by some members, the organization dropped its endorsement of that paper, noting “ACEP’s 2009 White Paper Report on Excited Delirium Syndrome is outdated and does not align with the college’s position based on the most recent science and better understanding of the issues surrounding hyperactive delirium.”

According to ACEP board chair Jeffrey Goodloe, the physicians organization prefers to use a more specific, limited and accepted diagnosis—hyperactive delirium with severe agitation. “Despite good intentions of the 2009 paper,” Goodloe says, “there perhaps was not enough emphasis on the importance of everyone—from law enforcement officers to first responders to EMS professionals to emergency department-based medical professionals—that first and foremost, we make sure we’re addressing these individuals as patients and prioritizing their medical care.”

Questionable origins of a relatively new diagnosis

The term “excited delirium” first appeared in two medical papers on the effects of cocaine intoxication by Charles Wetli and David Fishbain in 1981 and 1985. Wetli, was Miami’s deputy chief medical examiner, later applied his theories to the deaths of 14 black women in Miami between 1986 and 1988.

In an interview with the Miami News, Wetli attributed the deaths to excited delirium, saying he believed Black people were particularly susceptible: “For some reason, the male of the species becomes psychotic, and the female of the species dies in relation to sex.”

It was later determined that the 14 women had been murdered by a serial killer.

Joanna Naples-Mitchell, an attorney and researcher with Physicians for Human Rights, says racist notions like to Wetli’s have pervaded the literature describing excited delirium, including the 2009 ACEP paper. “That paper really laid out the criteria for identifying the signs and symptoms of excited delirium,” Naples-Mitchell says. “And some were overtly racist, including noting that someone might be possessed with superhuman strength or be impervious to pain—which are racist stereotypes about Black people that have led to all sorts of medical racism in this country for decades.”

Excited delirium became more prevalent in medical examiner reports after the 2005 publication of a book on the topic by Theresa Di Maio and Vincent Di Maio, which claimed that many deaths in police custody were wrongly attributed to positional asphyxia rather than excited delirium.

According to Naples-Mitchell’s research, the TASER corporation (the manufacturer of nonlethal taser weapons) bought and distributed at least a thousand copies of the Di Maios’ book and distributed them to medical examiners across the country.

Naples-Mitchell says TASER was closely allied to the movement to recognize excited delirium. She noted that a 2021 study by Osagie Obasogie in the Virginia Law Review found that of 166 deaths attributed to excited delirium in police custody between 2010 and 2020, 46 percent involved Taser use.

Obasogie’s study also found that 43.3 percent of people whose in-custody deaths were attributed to excited delirium were Black and 56 percent were either Black or Latino. Mitchell notes that as video of encounters with law enforcement become more common—as in the case of George Floyd or Alexander Rios, an inmate in Ohio who died in 2019 after being held down by corrections officers—it becomes harder to attribute a death to excited delirium.

Not doing things the old way

“Excited delirium has been a placeholder for real diagnosis for decades,” Roger Mitchell says. “And now that we have third-party objective video, the medicine has an opportunity to evolve.”

Though Gill claims that deaths from excited delirium sometimes happen outside of contact with law enforcement—he remembers filing one report involving a man who had an episode after taking PCP who died in his home—most these deaths take place in custody. A 2020 paper in Forensic Science, Medicine and Pathology found that 90% of excited delirium deaths involved some form of restraint.

Daniel Wohlgelernter, a cardiologist who testified in the trial of the Tacoma police officers, says he’s confident that Ellis died of cardiopulmonary arrest triggered by restraint-related asphyxia—not excited delirium, as the defense contended.

 “There was little to no probability that Ellis would have died in the absence of the prone restraint actions by the law enforcement officers,” Wohlgelernter says. This is contrary to claims made by the defense, including reference to a 1997 paper by Theodore Chan and Gary Vilke, which found that in simulated situations, restraint did not significantly affect respiratory function. Wohlgelernter says those studies neglected to consider the stress of encounters with law enforcement.

“If instead, I had you run up 20 flights of stairs in a commercial office building and then put you in a prone position with five people sitting on your back,” Wohlgelernter says, “you’re gonna run out of oxygen pretty darn quickly.”

Demands for better police accountability

Decades of substituting excited delirium for other causes has served to shift blame away from law enforcement, says California Assemblyman Mike Gipson, who introduced the bill banning excited delirium as a cause of death.

“I think one can draw the conclusion that this was to cover up people dying at the hands of law enforcement,” Gipson says. He noted that Colorado legislators interested in passing a similar bill recently reached out to him about details. In December, Colorado’s Peace Officers Standards and Training board struck all references to excited delirium from its training materials.

In February, the ABA House of Delegates recommended that all deaths in police custody be accounted for and receive proper scrutiny. It passed a resolution urging state and local governments to follow the federal Death in Custody Reporting Act and ensure there are independent investigations into all deaths in police custody and at correctional institutions. The resolution also recommends a check box on all US standard death certificates specifying whether a death is in custody.

When Elijah McClain was confronted by police in Aurora, Colorado in 2019, paramedics diagnosed the young Black man with excited delirium. After being beaten and put in a chokehold by police, McClain was injected with the sedative ketamine by paramedics, went into cardiac arrest, and died four days later.

 “It was the protocols on excited delirium,” says Naples-Mitchell, “that led to the administration of ketamine, which seems to have caused his death, in addition to the excessive force used by officers when he was stopped while walking home, totally healthy.”

In December, two paramedics who administered ketamine to McClain were found guilty of criminally negligent homicide. When asked by the ABA Journal whether ACEP was considering revising a policy that recommends administering ketamine to those experiencing hyperactive delirium, Goodloe said, “The evidence-based recommendations in the 2021 paper specifically address prudent dosing of ketamine. The outlined dosing regimen is notably different than paramedics were reported to have administered in the encounter involving Mr. McClain.”

Many local jurisdictions still have emergency service procedures that mention excited delirium and advise responding with ketamine. Joe Meinecke, a spokesperson for the Tacoma Fire Department, which employs the paramedic who testified in the trial of the officers involved in Ellis’ death, said that its first responders follow county protocols—which currently advise responders to work with law enforcement officers to restrain people experiencing excited delirium and to sedate them with a 4mg/kg dose of ketamine.

Mitchell hopes other states will follow California’s lead in banning excited delirium.

“We should get rid of excited delirium because it’s not an accurate diagnosis of what has caused death,” Mitchell says. “It’s a description of circumstances.”

Gipson says his bill has brought the Quinto family some consolation. “They’ve said to me that these policies can’t bring Angelo Quinto back but can hopefully make sure that no one will have to go through what their family did and what Angelo experienced.”

To read more CLICK HERE

 

PA Supreme Court considers ending death by incarceration

My life is either going to be a testimony or a warning,” Derek Lee told The Nation.

Lee was speaking on a video chat from behind the walls of SCI Smithfield in central Pennsylvania. Now 35 years old, Lee has been imprisoned since he was 29. If nothing changes, he will grow old and die in prison.

In 2016, a Pennsylvania court sentenced Lee to life without parole for a burglary two years earlier that ended with his accomplice fatally shooting the homeowner. Lee was not involved in the killing, but he was convicted of second-degree or felony murder—an unintentional death that happens when the defendant is committing a felony. In Pennsylvania, that means an automatic sentence of life without parole (LWOP).

That sentence, which advocates call “death by incarceration,” means that, no matter how much time has passed or what a person does to transform their life, they have virtually no chance of leaving prison alive. Nearly 80 percent of those sentenced to life without parole in Pennsylvania were, like Lee, under 30 when they were sent to prison—53 percent were between ages 18 and 25

Lee has chosen not to accept this fate. He doesn’t want to die in prison, and he doesn’t want others to die in prison either. Now, he is waging a battle to overturn LWOP for himself and, potentially, over a thousand others sentenced to live and die behind bars in Pennsylvania.

He wants, as he put it, his life to be a testimony, not a warning.

 “I can warn people what not to do, but I’d rather be somebody that you could look to and say, ‘This is what I can do. If I do change, if I do put in the work, if I am sincere,’” he said.

Amovement to end life without parole has been gaining traction in Pennsylvania and across the nation. Family members and those who had previously faced the probability of dying in prison formed campaigns. They rallied at capitols, filed lawsuits, and pushed legislators to change the laws—and to apply them retroactively. They even took their complaint to the United Nations. In May 2023, formerly incarcerated New Yorkers testified before a three-person UN committee set up to examine systemic racism against Black people; four months later, the committee stated that it was “deeply alarmed” by the high rate of death by incarceration sentences and recommended that all prison sentences include parole eligibility within a reasonable number of years. This past November, it recommended a moratorium on LWOP.

Lee knew none of this when he met Bret Grote and Quinn Cozens, attorneys with the Abolitionist Law Center who visited the prison for a 2019 legal seminar. In November 2020, the court reinstated his right to appeal on the grounds that he had been deprived of a lawyer during his initial appeal. The reinstatement came at an opportune time—the Abolitionist Law Center had been searching for a plaintiff whose appeal rights had not expired for their next legal challenge.

With their help, Lee appealed his sentence. A three-judge panel of the state superior court denied his appeal in June 2023, ruling in part that the panel was bound by prior rulings. In a separate memorandum, one of those judges urged the full court to revisit whether a mandatory life without parole sentence for all second-degree murder convictions violates the state’s Constitution. In July, the Abolitionist Law Center, Amistad Law Project, and Center for Constitutional Rights appealed the decision to the Pennsylvania State Supreme Court arguing that life without parole for felony murder violates both the Eighth Amendment ban on cruel and unusual punishment and the state’s Constitution prohibiting “cruel” punishment. They argued that imposing life without parole for those who never intended to take a life is unduly harsh, violating the state Constitution. Pointing to the US Supreme Court decisions, which addressed children’s diminished culpability, they argued that people who did not kill or intend to kill comprise another category of diminished culpability.

The court’s decision could extend far beyond Lee. If his sentence is ruled unconstitutional, it could open the door so that over one thousand Pennsylvanians don’t die in prison.

Lee is keenly aware of how high the stakes are and how any misstep he makes could impact not just him, but people across the state. “There are days when COs and other [men] get on your nerves and you want to react a certain way,” he said. “I remind myself that that’s not the person I am anymore. What I do affects other people—I hold a responsibility not just to myself, but to others. Guys on this block—some of them are second-degree [or felony murder]—are looking at my case, saying, ‘What happens for you is going to affect everybody.’ I try to live up to that responsibility by how I live my life.”

Pennsylvania has the nation’s second-highest number of people (5,100 people) serving life without parole. Over one-fifth have been convicted of felony murder. Seventy percent, like Lee, are Black. Nationwide, nearly 56,000 people have been sentenced to death by incarceration although national data on the percentage condemned for felony murder does not exist.

“I feel deeply that this is the time for this,” Lee told The Nation. “There’s so much positive energy around this issue. It’s the next logical step to correct something that should have been corrected a long time ago.”

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Creators: A Parent Convicted for the Conduct of a Child

Matthew T. Mangino
Creators Syndicate

February 12, 2024

William Shakespeare wrote in "The Merchant of Venice," "The sins of the father are to be laid upon the children." In the centuries since, children continue to suffer for the bad conduct of their parents. Recently, in what appears to be a bit of a twist, a jury in Michigan found a mother criminally responsible for the crimes of her son.

The charges, and conviction, of Jennifer Crumbley are unprecedented. According to NBC News, it was the first time a parent in the U.S. was held criminally responsible for a child's school shooting rampage.

Ethan Crumbley shot and killed four students and injured seven others at Oxford High School in Oakland County, Michigan, on Nov. 30, 2021.

In order to find Jennifer Crumbley guilty of four counts of involuntary manslaughter the jury had to find that she was extremely reckless and/or grossly negligent. Voluntary manslaughter does not require intent to harm or kill, but rather, as in Crumbley's case, could she have prevented something and did not?

In Michigan gross negligence "is conduct that presents an unreasonably high degree of risk to others and by a failure to exercise even the slightest care in protecting them from it and that is sometimes associated with conscious and willful indifference to their rights."

Can we expect that the parents of every kid who takes a weapon to school and harms someone will be in jeopardy of criminal prosecution? The facts of each case will determine the responsibility, if any, for the parents. However, in the wake of Crumbley's conviction, there will be a great deal of pressure on prosecutors to thoroughly investigate, and prosecute, parents for the role they played in some catastrophic crime.

Jennifer Crumbley's conduct cried out for accountability. Initially Ethan Crumbley went to his parents for help. He confessed to hearing voices and having hallucinations. His parents failed to seek treatment on his behalf.

Crumbley and her husband, James, helped Ethan buy a semiautomatic handgun just days before the shooting. Jennifer Crumbley took her son to a practice range to shoot the handgun. The gun was left unsecured in the house.

On the morning of the shooting, Mom and Dad were summoned to the school regarding some alarming classroom drawings on Ethan's notebook. They refused to take Ethan out of school because of work commitments, and did not tell the school Ethan had a gun.

Upon receiving an emergency text that there was an active shooter at Ethan's school — his parents didn't immediately rush to school to see if their son was safe — James went home to see if his son's gun and ammunition were in the home. Their first thought was that Ethan may be the shooter.

I'm sure there were failings by parents of other school shooters. This verdict does not necessarily open every parent of a school shooter to be prosecuted. However, it may be a first step in holding parents responsible, generally, for the conduct of their children.

What if a parent owns a gun, and their teenage daughter takes the gun and commits an armed robbery? Is that parent responsible for the child's conduct?

Obviously, a jury decision in Michigan has no precedential value in any other courtroom in Michigan, let alone across the country. Heck, James Crumbley will be tried next month on the same four counts of involuntary manslaughter and may be found not guilty.

This verdict charts a path forward for expanding the number of people to be blamed for a horrendous event like a school massacre. Horrified observers find comfort in pointing the finger at some person, or reason, for the senseless killing — in this case it is poor parenting.

To paraphrase Shakespeare, all parents may pay the price for the sins of some parents. The pain of losing a child is incomprehensible. The pain endured by parents of a child who takes the lives of other children is also crushing — being blamed for their child's conduct would be catastrophic.

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

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Special counsel editorializes in classified document report

Another special counsel has filed another report, setting off another round of accusations of partisanship, reported Lawfare. In this case, Special Counsel Robert Hur (whom I like and admire) determined that President Joe Biden should not be prosecuted for mishandling classified information. That is clearly the correct prosecutorial judgment.

Separately, Hur has been criticized for observations he included in his report disparaging President Biden’s memory and mental acuity—observations that Biden’s political opponents will weaponize. For reasons I explored previously, the special counsel regulations are flawed, and recent attorneys general have overly relied on the special counsel mechanism to the detriment of the institutional standing of the Department of Justice. Nonetheless, Hur had no choice here in one respect; a report was mandated. 

But what motivated Hur to include in his report observations about the president’s mental acuity?

Two points are worth noting. First, when a special counsel submits a report it is, by regulation, confidential. Second, a special counsel must explain his or her prosecutive decisions to the attorney general in the report. Once submitted, the decision to release the report to the public belongs wholly to the attorney general. The regulations are clear: “The Attorney General may determine that public release of these reports would be in the public interest.”   

Prosecutors operating in normal, non-special counsel circumstances routinely decline some of the cases they open. When they do—and I was a federal prosecutor for many years—they do not write reports about their investigations, comment publicly on the strength of the evidence, or comment on the relative strengths and weaknesses of their witnesses or of the defendant. 

But they certainly make those sorts of assessments and observations, internally and privately, during their investigations. Some of those assessments are sensitive (witness x is not credible, or witness y is an inveterate liar) and should not be shared publicly. But those sorts of assessments help prosecutors decide which cases are meritorious and should be charged, and which are not, and should be declined.

During his investigation, Hur and his team collected more than 7 million documents and spoke with 147 witnesses. They were trying to determine lots of things, including, most notably, whether any federal criminal statutes were violated and whether, if they charged those violations, they could establish their case to a unanimous jury with proof beyond a reasonable doubt. But Hur is required under the special counsel regulations to explain his declination in writing.  

If Hur was going to tell the attorney general that he declined to prosecute President Biden, then I believe he was also obligated to explain his rationale. The very nature of the decision to decline to prosecute includes Hur’s assessment of the putative defendant (Biden) and how Biden would fare at a criminal trial, including in front of a jury, if he chose to take the stand. Would Biden come across as forgetful? As sympathetic? As willful? As dissembling? As honest? These are crucial determinations prosecutors make all the time about witnesses and defendants. Indeed, I cannot imagine writing a report to the attorney general and not including these assessments.

I think it is unfair to Hur to leap to a conclusion that he intended to act as a partisan. It is an easy accusation to make and a difficult one to prove, and it would be at odds with the Rob Hur that I know. But I do think some criticism of the language Hur used is fair. Though he is obligated to write the report and include his assessments, and though the decision to release the report belongs to the attorney general, Hur must have known that his report would inevitably be released. The attorney general has long said that he is inclined to release such reports, to the extent the law permits. 

But a special counsel must write a report in a way—if possible—that gives no advantage or disadvantage to any one person, apart from the consequences that flow naturally from the factual findings of the report. It is one thing to explain in a neutral way why evidence exists—or does not exist—in a case (such as Biden could not recall) and another to use language that is arguably disparaging (such as that Biden is “an elderly man with a poor memory”). It is one thing to suggest that a defendant could come across to a jury as sympathetic and another to suggest that a defendant is utterly incapable of forming criminal intent. Political opponents will turn the latter characterizations into political capital. A special counsel report should avoid providing that sort of ammunition to either side (and I believe Hur could have threaded that needle here) while still adequately explaining a declination decision to the attorney general. 

There is much not to like about the special counsel regulations and this attorney general’s over-reliance on them. Turning to a special counsel is not the panacea the attorney general imagines it to be, and it does not insulate the process from accusations of partisanship. This latest special counsel report only further highlights that fact and those problems.  

By contrast, in June 2023, the investigation into the mishandling of classified information by former Vice President Mike Pence was closed without fanfare. The case was handled within normal channels, and no special counsel was appointed. A letter received by Pence’s attorneys from the Department of Justice simply noted that “[t]he Federal Bureau of Investigation and the Department’s National Security Division have conducted an investigation into the potential mishandling of classified information” and that “[b]ased on the results of that investigation, no criminal charges will be sought.” Simple, proper, and uninteresting, as it should be.

If you do not want to pour the fruits of sensitive investigations (with their attendant impressions and assessments) into the public domain, then handle these investigations through normal channels at the Department of Justice, and do what prosecutors always do when they decide not to charge a case: nothing.

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