AP/FRONTLINE investigation of police restraint deaths

Every day, police rely on common tactics that, unlike guns, are meant to stop people without killing them, such as physical holds, Tasers and body blows. But when misused, these tactics can still end in death — as happened with George Floyd in 2020, sparking a national reckoning over policing, reported the Associated Press. And while that encounter was caught on video, capturing Floyd’s last words of “I can’t breathe,” many others throughout the United States have escaped notice.

Over a decade, more than 1,000 people died after police subdued them through means not intended to be lethal, an investigation led by The Associated Press found. In hundreds of cases, officers weren’t taught or didn’t follow best safety practices for physical force and weapons, creating a recipe for death.

These sorts of deadly encounters happened just about everywhere, according to an analysis of a database AP created. Big cities, suburbs and rural America. Red states and blue states. Restaurants, assisted-living centers and, most commonly, in or near the homes of those who died. The deceased came from all walks of life — a poet, a nurse, a saxophone player in a mariachi band, a truck driver, a sales director, a rodeo clown and even a few off-duty law enforcement officers.

The toll, however, disproportionately fell on Black Americans like Grant and Ivy. Black people made up a third of those who died despite representing only 12% of the U.S. population. Others feeling the brunt were impaired by a medical, mental health or drug emergency, a group particularly susceptible to force even when lightly applied.

“We were robbed,” said Carl Grant’s sister, Kathy Jenkins, whose anger has not subsided four years later. “It’s like somebody went in your house and just took something, and you were violated.”

AP’s three-year investigation was done in collaboration with the Howard Center for Investigative Journalism programs at the University of Maryland and Arizona State University, and FRONTLINE (PBS). The AP and its partners focused on local police, sheriff’s deputies and other officers patrolling the streets or responding to dispatch calls. Reporters filed nearly 7,000 requests for government documents and body-camera footage, receiving more than 700 autopsy reports or death certificates, and uncovering video in at least four dozen cases that has never been published or widely distributed.

LETHAL RESTRAINT INVESTIGATION
Many more people have died after police subdued them than the American public knows.

- The AP found that over a decade, more than 1,000 people died after police subdued them with physical force that is not supposed to be lethal. Explore the full database of cases here.
- New details open fresh wounds for a mother who had believed her son died of an overdose.
- AP found encounters that ended in death disproportionately affected Black Americans.

Medical officials cited law enforcement as causing or contributing to about half of the deaths. In many others, significant police force went unmentioned and drugs or preexisting health conditions were blamed instead.

Video in a few dozen cases showed some officers mocked people as they died, laughing or making comments such as “sweaty little hog,” “screaming like a little girl” and “lazy f---.” In other cases, officers expressed clear concern for the people they were subduing.

The federal government has struggled for years to count deaths following what police call “less-lethal force,” and the little information it collects is often kept from the public and highly incomplete at best. No more than a third of the cases the AP identified are listed in federal mortality data as involving law enforcement at all.

When force came, it could be sudden and extreme, the AP investigation found. Other times, the force was minimal, and yet the people nevertheless died, sometimes from a drug overdose or a combination of factors.

In about 30% of the cases, police were intervening to stop people who were injuring others or who posed a threat of danger. But roughly 25% of those who died were not harming anyone or, at most, were committing low-level infractions or causing minor disturbances, AP’s review of cases shows. The rest involved other nonviolent situations with people who, police said, were trying to resist arrest or flee.

To read more CLICK HERE

Mangino discusses murder of Mei Haskell with Nancy Grace

Listen to my interview with Nancy Grace on Crime Stories with Nancy Grace discussing the dismemberment murder of Mei Haskell and the disappearance of her parents.

To listen to the show CLICK HERE

Virginia governor vetoed assault weapons ban, but signed a couple modest reforms

Gov. Glenn Youngkin has vetoed an assault weapons ban and a slate of other gun-control bills passed by the Virginia General Assembly, but he signed a pair of firearm-related measures into law: One bans a device that turns a semiautomatic firearm into a machine gun, and the other allows a parent or guardian to be charged with a felony for allowing a child who has been deemed a threat to have access to a gun, reported the Washington Post.

“I am pleased to sign … public safety bills which are commonsense reforms with significant bipartisan support from the General Assembly,” Youngkin (R) said in a written statement.

Youngkin had not been tested on firearm-related legislation in the first two years of his administration, when Republicans controlled the House of Delegates and prevented all gun-control measures from advancing. This year, with Democrats holding majorities in both the House and the Senate, lawmakers sent over numerous bills that put him on the spot. Youngkin had cast himself as a pro-Second Amendment patriot in his campaign for the GOP gubernatorial nomination in 2021. But he also refused to answer a National Rifle Association questionnaire and downplayed guns as he wooed suburban voters who tend to support some gun control.

Youngkin’s limits were clear, though, in the batch of 30 vetoes announced Tuesday, which included an assault weapons ban and a measure to close the “boyfriend loophole” to prevent someone in a domestic relationship who is subject to a restraining order from gaining access to a firearm.

The actions bring Youngkin’s total vetoes so far this session to 80 — nearing the record set by Gov. Terry McAuliffe (D) of 120 vetoes in a four-year term. With more than 1,000 bills sent to his desk when the General Assembly wrapped up March 9, Youngkin is on pace to set a new mark for rejections.

The two bills he signed were not opposed by the Virginia Citizens Defense League, a prominent gun rights group, which did not immediately respond to a request for comment.

“He should have signed all the other bills to keep our children and our loved ones free from firearms violence,” said Lori Haas, one of Richmond’s most vocal gun-control advocates since her daughter was injured in the 2007 massacre at Virginia Tech.

The two Democrats who sponsored identical House and Senate versions of bills to hold guardians accountable for juvenile gun crimes praised Youngkin for signing the measure, which they call “Lucia’s Law” after Lucia Bremer, a 13-year-old girl in Henrico County who was gunned down by a 14-year-old boy in 2021.

To read more CLICK HERE

 

California takes on homelessness and mental illness

A new initiative, called CARE Court — for Community Assistance, Recovery and Empowerment — is a cornerstone of California’s latest campaign to address the intertwined crises of mental illness and homelessness on the streets of communities up and down the state, reported The New York Times.

Another piece of the effort is Proposition 1, a ballot measure championed by Gov. Gavin Newsom and narrowly approved by California voters this month. It authorizes $6.4 billion in bonds to pay for thousands of treatment beds and for more housing for the homeless — resources that could help pay for treatment plans put in place by CARE Court judges. 

And Mr. Newsom, a Democrat in his second term, has not only promised more resources for treatment but has pledged to make it easier to compel treatment, arguing that civil liberties concerns have left far too many people without the care they need.

So when Ms. Collette went to court, she was surprised, and disappointed, to learn that the judge would not be able to mandate treatment for Tamra.

Instead, it is the treatment providers who would be under court order — to ensure that medication, therapy and housing are available in a system that has long struggled to reliably provide such services.

“I was hoping it would have a little more punch to it,” Ms. Collette said. “I thought it would have a little more power to order them into some kind of care.” 

Yet it seemed like her only option, so she made the petition and hoped.

CARE Court is Mr. Newsom’s bid to balance the very public and very political problem of homelessness with profound questions about individual rights in a country that for generations forced people with severe mental illness into dangerous, dysfunctional institutions.

Under Gov. Ronald Reagan, California led the country in a national movement to end widespread practice of committing the mentally ill to state institutions. But like the rest of the country, the state didn’t ensure that adequate resources were shifted to community services.

Mr. Newsom, in signing the legislation that set up the new courts, nodded to this history, calling it California’s “original sin.”

That failure helped seed the crisis that plays out in city after city.

The state’s growing homeless population — just over 180,000 people, according to federal statistics, more than a quarter of the nation’s homeless — has city parks and spaces underneath freeway overpasses bulging with encampments, and those clearly in mental distress are a common sight in communities up and down the state.

“Continue to do what you’ve done, and you’ll get what you’ve got,” Mr. Newsom said when he signed the CARE Court legislation. “And look what we’ve got. It’s unacceptable.”

To read more CLICK HERE

 

Sweetheart deal for embattled Texas AG

Federal prosecutors agreed to drop the securities fraud charges facing Attorney General Ken Paxton if he performs 100 hours of community service and fulfills other conditions of a pretrial agreement, bringing an abrupt end to the nearly nine-year-old felony case that has loomed over the embattled Republican since his early days in office, reported the Texas Tribune.

The deal, which landed three weeks before Paxton is set to face trial, also requires him to take 15 hours of legal ethics courses and pay restitution to those he is accused of defrauding more than a decade ago when he allegedly solicited investors in a McKinney technology company without disclosing that the firm was paying him to promote its stock. The amount of restitution totals about $271,000, prosecutor Brian Wice said.

To read more CLICK HERE

Your tax dollars at work: PA state senator's whacky conspiracy legislation

A state senator who was the 2022 GOP nominee for Pennsylvania governor has proposed legislation to outlaw experimental weather modification techniques falsely associated with the “chemtrail” conspiracy theory, reported the Pennsylvania Capital-Star.

The false belief that condensation trails left by high flying aircraft are actually trails of chemicals released by the government for nefarious reasons has become conflated with techniques being explored to reduce the amount of solar radiation absorbed by the atmosphere.

In a memo seeking support for his bill, Sen. Doug Mastriano (R-Franklin) said new technology and a proliferation of weather modification patents “owned by a combination of Federal Government Agencies, Non-Governmental Organizations, and large multinational corporations” have brought forward the need to update Pennsylvania’s law.

Mastriano notes the Pennsylvania Constitution guarantees the “right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”

“Spraying unknown, experimental, and potentially dangerous chemicals into the atmosphere without the consent of the people of Pennsylvania is a clear violation of Article 1, Section 27 of the PA Constitution,” Mastriano’s memo states.

To read more CLICK HERE

Mangino discusses Idaho prisoner escape on Scripps News

Watch my interview with Christian Bryant on Scripps News Tonight discussing the brazen Idaho prisoner escape and shootout.

To watch the interview CLICK HERE

Arizona legislator introduces a bill to repeal felony murder

Arizona State Sen. Anna Hernandez introduced a bill to repeal the state’s felony murder law, which has repeatedly been used to imprison bystanders for killings committed by police officers, reported The Appeal. Hernandez also introduced a separate bill that would change the law so that people can only be charged with murder if they killed someone or helped kill someone.

Under Arizona’s felony murder law, people can be charged with murder even when they did not kill anyone. If someone dies while a person is committing certain felony offenses, such as robberies or certain drug offenses, that person can be charged with felony murder.

Senate Bill 1422 removes the sections of Arizona state law that allow people to be charged with murder even when they did not kill anyone. The bill would also give anyone previously convicted under the state’s felony murder statute a chance to be resentenced.

Senate Bill 1423, meanwhile, adds two sentences to the state’s homicide statute defining specific cases in which people can be charged with first-degree murder. One sentence states that people may be charged if the person is the actual killer. The second says someone can be charged with first-degree murder if the person is not the killer but had the intent to kill and “aided, abetted, counseled, commanded, induced, solicited, requested, or assisted” the actual killer in the conduct that caused the death.

Last year, The Appeal published a story that brought renewed attention to the Phoenix Police Department’s killing of Jacob Harris—and the incarceration of his three friends using the state’s felony murder law. In 2019, Phoenix Police Officer Kristopher Bertz shot 19-year-old Harris in the back, killing him. Police and prosecutors cleared Bertz of any wrongdoing. Instead, they charged three friends with Harris that night—Johnny Reed, Sariah Busani, and Jeremiah Triplett—with the murder. Reed, who was 14 years old at the time, was sentenced to 15 years in prison—more years than he had been alive at the time of his arrest.

Busani, aged 19, and Triplett, aged 20, were sentenced to 10 and 30 years respectively. All three have been incarcerated since the night police killed Harris.

Our reporting revealed that multiple law enforcement officials made false or misleading statements about the night of Harris’s death and deleted text messages related to the shooting. Thermal footage of the shooting obtained by The Appeal contradicted the Phoenix Police Department’s version of events.

Our investigation also raised questions about the department’s conduct prior to the shooting: officers had been surveilling Harris and his friends for over 12 hours at the time, believing that they were connected to a string of robberies. Though police had many opportunities to stop the group throughout the day, they ultimately chose to “allow a robbery to happen,” as one officer put it.

In a written statement, Hernandez told The Appeal she filed two bills in order to increase the likelihood at least one passes.

“These came about after conversations with the coalition supporting Mr. Roland Harris and the Free the Phoenix 3 [Coalition],” Hernandez said. “This statue is especially concerning as we have seen a rise in police shootings and what this could mean for other individuals that could be impacted by this law.”

Hernandez also praised The Appeal’s reporting in a Tweet last March.

Tomorrow morning, the Justice for Jacob Harris and Free the Phoenix Three community coalitions—which formed in response to The Appeal’s investigation—will hold a press conference alongside Hernandez outside the state capitol to support the bills. The coalitions include the Anti Police-Terror Project, Black Lives Matter Phoenix Metro, Decarcerate Arizona, and the families of Harris, Reed, Busani, and Triplett.

Several states, including Hawaii, Kentucky, Massachusetts, and Michigan, have abolished the felony murder rule.

Hernandez’s two bills each have more than seven co-sponsors. The state senate is currently composed of 14 Democrats and 16 Republicans. The state house has 29 Democrats and 31 Republicans. Some Republican lawmakers in Arizona have supported criminal justice reform measures in the past. Arizona’s governor, Katie Hobbs, is a Democrat who has endorsed criminal legal system reform. The new round of bills also puts added pressure on Hobbs to grant clemency to Harris’s three friends.

To read more CLICK HERE

Mangino provides legal commentary for WFMJ-TV

Watch my interview with Lindsay McCoy on WFMJ-TV discussing the Ohio opioid verdict and Apple monopoly case. 

To watch the interview CLICK HERE

Judge in Jan. 6 cases warns of future violent attacks after 2024 election

 A federal judge who has overseen numerous criminal cases against Donald Trump supporters who viciously assaulted police officers during the Jan. 6 attack on the Capitol expressed concern during a sentencing hearing that the former president could trigger another violent attack in the lead-up to or aftermath of the 2024 presidential election, reported NBC News.

U.S. District Judge Rudy Contreras voiced those concerns while sentencing Jeffrey Sabol, a Colorado geophysicist, to 63 months, or more than five years, in federal prison. Sabol had told the FBI that he believed there was no question the election was stolen and that Dominion voting machines had been tampered with. Sabol also told the FBI he was filled with “patriotic rage” on Jan. 6, that a “call to battle was announced” and that he “answered the call because he was a patriot warrior.”

Contreras said that Trump and his allies had “spurred” the attack on the Capitol, saying he was worried that Sabol would respond once again if a similar “call” was issued.

"It doesn't take much imagination to imagine a similar call coming out in the coming months," Contreras said Thursday.

Sabol, who repeatedly assaulted officers at the lower west tunnel during the Capitol attack, was one of a fraction of the Jan. 6 defendants who had been held pretrial, so he's already served the majority of his sentence. He was arrested on Jan. 11, 2021, just five days after the attack. Sabol destroyed his laptop in a microwave oven, dropped his cellphone in a body of water and tried to board a flight to Zurich, Switzerland, prior to his arrest, prosecutors said.

Contreras on Thursday also ordered Sabol to pay $32,165.65 in restitution and serve three years of supervised release.Jeffrey Sabol, center, seen during the Jan. 6 attack on the U.S. Capitol. U.S. District Court for the District of Columbia

In the lead-up to the Capitol attack, many Trump supporters saw the former president's Dec. 19, 2020 "will be wild" tweet encouraging people to come to Washington on Jan. 6 as a "call to arms." As criminal cases against hundreds of Trump supporters have made their way through federal court, Jan. 6 defendants have said time and time again that they took the actions they did because they believed the former president's baseless lies about the 2020 election.

Some Jan. 6 defendants have said they were duped and manipulated and expressed retroactive embarrassment about their lack of critical thinking skills, with some defendants even calling themselves idiots.

In the court gallery for Sabol’s sentencing was Micki Witthoeft, the mother of Jan. 6 rioter Ashli Babbit, who was shot and killed by a Capitol Police officer as she jumped through a broken window leading into the House Speaker’s Lobby. Witthoeft attended a vigil for Jan. 6 defendants outside a jail in Washington this week, which was livestreamed, saying that she had spoken with Trump on the phone earlier in the day and that the former president “talked about setting these guys free when he gets in,” a message he asked to be passed along to Jan. 6 defendants.

The former president was supposed to be currently standing trial in connection with his efforts to overturn his election loss. Instead, the Supreme Court will hear oral arguments on Trump's claims of total presidential immunity from criminal charges next month, and it is unclear if he will face trial before Election Day 2024.

Numerous members of the federal judiciary in Washington have indicated that they believe Trump is responsible for the events of Jan. 6. Contreras said at a prior sentencing against a Jan. 6 rioter that Trump and his allies “bear responsibility for what occurred that day.”

Judge Amy Berman Jackson, at a prior Jan. 6 sentencing, said that the Republican Party was "actively shunning the few who think standing up for principle is more important than power and have stepped forward to educate the public and to speak the truth." The threat to democracy, Berman Jackson said, did not evaporate or dissipate just because the 2020 election results were certified.

"The lie that the election was stolen or illegitimate is still being propagated. Indeed, it’s being amplified, not only on extremist social media sites, but on mainstream news outlets," she said. "And worse, it’s become heresy for a member of the former president’s party to say otherwise."

More recently, Senior U.S. District Judge Royce Lamberth expressed astonishment that Republican politicians had so readily latched onto "preposterous" claims about the events of Jan. 6 itself. He cited claims that criminals convicted in a court of law or ordered held until trial by federal judges because of their danger to the community or risk of flight were "hostages," a term Trump and his supporters like Rep. Elise Stefanik, R-N.Y., have used.

“The Court is accustomed to defendants who refuse to accept that they did anything wrong. But in my thirty-seven years on the bench, I cannot recall a time when such meritless justifications of criminal activity have gone mainstream,” Lamberth, who was appointed by former President Ronald Reagan in 1987, said.

“I have been dismayed to see distortions and outright falsehoods seep into the public consciousness,” Lamberth continued. “The Court fears that such destructive, misguided rhetoric could presage further danger to our country.”

Alabama carries out first execution in more than four years

 The 3rd Execution of 2024

 Willie James Pye, a Georgia man convicted of the killing of his former girlfriend three decades ago was put to death on March 20, 2024 in the state’s first execution in more than four years, report The Associated Press.

Pye, 59, received an injection of the sedative pentobarbital and was pronounced dead at 11:03 p.m. at the state prison in Jackson. He was sentenced to die for his conviction in the November 1993 abduction, rape and shooting death of Alicia Lynn Yarbrough.

Pye was asked by the warden whether he wanted to say any final words, and he indicated no. When asked if he wanted a prayer said for him, he indicated that he would. A member of the clergy then said a brief prayer, asking God to help Pye experience some grace and mercy.

Pye was mostly still as the drugs began to flow. He began exhaling rapid bursts of air about a half-dozen times, causing his cheeks to expand and his lips to quiver each time. Then, he was still. Several minutes later, the warden walked into the death chamber and announced the time of death.

Pye’s lawyers filed late appeals urging the U.S. Supreme Court to step in, but the justices unanimously rejected to stop the execution. The defense team argued the state hadn’t met necessary conditions for resuming executions after the COVID-19 pandemic and reiterated arguments that Pye was ineligible for execution because of an intellectual disability. State responses argued the claims had been previously settled by the courts and were without merit. The last execution in Georgia was conducted in January 2020 before the COVID-19 pandemic gained force.

Pye had been in an on-and-off romantic relationship with Yarbrough, but at the time she was killed, she was living with another man. Pye, Chester Adams and a 15-year-old had planned to rob that man and bought a handgun before heading to a party in a nearby town, prosecutors have said.

The trio left the party around midnight and went to the house where Yarbrough lived, finding her alone with her baby. They forced their way into the house, stole a ring and necklace from Yarbrough, and forced her to go with them, leaving the baby alone, prosecutors said.

The group drove to a motel, where they raped Yarbrough and then left the motel with her in the car, prosecutors said. They turned onto a dirt road and Pye ordered Yarbrough out of the car, made her lie face down and shot her three times, according to court filings.

Yarbrough’s body was found on Nov. 17, 1993, a few hours after she was killed. Pye, Adams and the teenager were quickly arrested. Pye and Adams denied knowing anything about Yarbrough’s death, but the teenager confessed and implicated the other two.

The teenager reached a plea agreement with prosecutors and was the main witness at Pye’s trial. A jury in June 1996 found Pye guilty of murder, kidnapping, armed robbery, rape and burglary, and sentenced him to death.

Pye’s lawyers had argued in court filings that prosecutors relied heavily on the teenager’s testimony but that he later gave inconsistent statements. Such statements, as well as Pye’s testimony during trial, indicate that Yarbrough left the home willingly and went to the motel to trade sex for drugs, the lawyers said in court filings.

Lawyers representing Pye also wrote in previous court filings that their client was raised in extreme poverty in a home without indoor plumbing or enough food or clothing. His childhood was characterized by neglect and abuse by family members who were often drunk, his lawyers wrote.

His lawyers also argued that Pye suffered from frontal lobe brain damage, potentially caused by fetal alcohol syndrome, which harmed his planning ability and impulse control.

Pye’s lawyers had long argued in courts that he should be resentenced because his trial lawyer didn’t adequately prepare for the sentencing phase of his trial. His legal team argued that the original trial attorney failed to sufficiently investigate his “life, background, physical and psychiatric health” to present mitigating evidence to the jury during sentencing.

A federal judge rejected those claims, but a three-judge panel of the 11th U.S. Circuit Court of Appeals agreed with Pye’s lawyers in April 2021. Then the case was reheard by the full federal appeals court, which overturned the panel ruling in October 2022.

Pye’s co-defendant Adams, now 55, pleaded guilty in April 1997 to charges of malice murder, kidnapping with bodily injury, armed robbery, rape and aggravated sodomy. He got five consecutive life prison sentences and remains behind bars.

There have been 75 men and one woman executed in Georgia since the U.S. Supreme Court reinstated the death penalty in 1976, according to the Georgia Department of Corrections. Pye was the 54th inmate put to death by lethal injection. There are presently 35 men and one woman under death sentence in Georgia.

To read more CLICK HERE

Creators: The 'Poverty Penalty': No Cash, No Freedom

Matthew T. Mangino
Creators
March 18, 2024

A fundamental tenet of Anglo-American jurisprudence, dating back to the Magna Carta, is that all those accused of a crime are presumed innocent until proven guilty. Today, about four out of five people sitting in local county jails and municipal lockups have not been convicted of the crime that brought about their detention.

Every day across the country, thousands of people are locked up because they don't have money. The idea of "debtors' prison" has long been repugnant. However, the concept of "pay or go to jail" is still around. Whether it's getting locked up for not paying fines or penalties after a conviction, or not having the wherewithal to post bail pending trial — there are still a lot of poor people in jail.

In most jurisdictions, the difference between being charged with a crime and walking the street pending trial, or sitting in jail awaiting trial, comes down to cash. Those who have it stay out of jail; those who don't, stay in jail. Those unfortunate people without money for bail are at risk of losing their jobs, their homes and their families.

Every year, about 11 million people funnel through local municipal and county jails. According to the Prison Policy Initiative, between 1970 and 2017, the number of people incarcerated in the nation's 3,000-plus local jails ballooned — from 150,000 to about 720,000 per day.

The millions of people who go to jail each year are there, generally, for brief periods of time. Most are released in days or hours after their arrest, while others are held for months or even years — often because they can't afford to make bail, are unable to get a speedy trial, or can't gain timely access to a public defender.

Defendants accused of particularly serious violent crimes or who pose a credible threat to public safety may be detained in jail while awaiting trial. However, most defendants are entitled to pretrial release. Judges may impose conditions on a defendant's release, such as electronic monitoring or supervision through a pretrial services agency, but they are entitled to bail if they can afford it.

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

Cash bail was historically intended to provide a financial incentive for defendants to show up at required court dates, but reforms adopted in the 1970s and 1980s allowed judges to also consider potential risks to public safety when making bail decisions. Cash bail can, under the right circumstances, be an appropriate tool for ensuring defendants cooperate throughout the pretrial period.

However, in most instances, cash bail creates a wealth-based, two-tiered system of pretrial detention. Those who can't afford bail suffer a "poverty penalty." No system of justice can endure when a person's wealth, or lack of it, can determine their freedom. Mariam Krinsky, executive director of the nonprofit Fair and Just Prosecution, said in 2019, "Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment." Yet the widespread use of cash bail continues.

Keeping an accused in jail for an extended period of time without trial creates other grievous problems in the criminal justice system. For instance, some inmates being detained pretrial, without the resources to post bail, see a guilty plea as their only path to freedom. Some defendants sitting in jail will take a plea offer, even if they're innocent, just to get out of jail. What could be worse than being locked up because you can't afford bail?

Pleading guilty to a crime you didn't commit to regain your freedom.

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.

To visit Creators CLICK HERE

Most Individuals Exonerated Last Year Were People of Color with Official Misconduct a Frequent Factor

The National Registry of Exonerations released a comprehensive report on exonerations in 2023. The Registry recorded 153 exonerations last year and nearly 84 percent (127/153) were people of color. Nearly 61 percent of the exonerees (93/153) were Black. 

New data show that wrongfully convicted individuals in the United States have received at least $4 billion in compensation since 1989 from state and local governments. The payout has nearly doubled in just five years since 2019, when compensation to exonerees in the U.S. totaled about $2.2 billion. This significant increase reflects the growing number of exonerations, and is one of the costs of wrongful convictions, particularly in Illinois, New York, and Texas. 

New York leads the pack with $1.1 billion total compensation, 70 percent of which was for damages in civil lawsuits (which are almost always paid by cities and counties), while in Texas, exonerees received $192 million, 86 percent of which was paid as state compensation. 

Jeffrey Gutman, special contributor to the National Registry of Exonerations and professor at the George Washington University Law School who collected the data, said, “This total will get bigger in the next few years, rapidly. The number of states that pay compensation to exonerees is growing. Many exonerees have claims that are still pending, and we'll keep seeing more exonerations of innocent people who spent decades in prison, probably at an accelerating rate." 

Since 1989, 50 percent of all exonerees and 53 percent of murder exonerees have received some compensation. But the amounts they received vary enormously. 

Official misconduct occurred in at least 118 exonerations (or 77 percent) in 2023. Seventy-five homicide cases—85 percent of homicide exonerations in 2023—were marred by official misconduct. Other contributing factors in various combinations included perjury or false accusations, false or misleading forensic evidence, mistaken witness identification, false confessions, and ineffective assistance of counsel. 

“This demonstrates once again a troubling reality in America’s justice system,” said Barbara O’Brien, professor at Michigan State University College of Law and editor of the Registry. “With 153 exonerations, predominantly affecting people of color, and billions in compensation paid since 1989, the toll of wrongful convictions is undeniable.” 

“Official misconduct continued to undermine the integrity of the most series cases, including those in which innocent defendants were sentenced to death,” O’Brien said. “And while compensation is being granted, it remains inequitable.” 

People exonerated in 2023 lost 2,230 years collectively for crimes they did not commit. That is an average of 14.6 years per exoneree for wrongful imprisonment. 

“The numbers are staggering. People exonerated last year lost 22 centuries of time all together,” said Ken Otterbourg, report co-author and Registry researcher. “Some innocent people go into prison as a young person and come out with grey hair. The vast majority of innocent people who were exonerated last year after being wrongly convicted of crimes are Black or Brown.” 

The top states for exonerations (in order) for 2023 were Illinois, Texas, New York, and Pennsylvania, with California and Oregon tied for fifth. The top four states accounted for 54 percent of the 2023 exonerations. 

The report found that 86 exonerations—56 percent of the 153 exonerations—were of defendants who had been convicted of murder, four of whom had been sentenced to death.

The report is available here.

Hollywood has a gun problem

In my first job as a military adviser on a film set, I witnessed the stark contrast between the gun safety culture of my Navy SEAL days and the cavalier attitude toward firearms that permeates Hollywood, writes Kaj Larsen in The New York Times. During a break in filming, the lead actor, fresh off a stint as a teen heartthrob, picked up a gun and began waving it around, joking with the cast. Instinctively, I leaped toward the actor, grabbed the gun and gave him a hard thump to the chest, admonishing him for “flagging” the entire crew — using the military term for aiming a firearm at someone.

Later, I pulled him aside and drilled into him the cardinal rules of gun safety, rules that become second nature to anyone who handles firearms professionally: Always treat a gun as loaded. Never point it at anything you don’t intend to shoot. Keep your finger off the trigger until ready to fire. These aren’t optional guidelines but ironclad laws. If you’re going to handle firearms, even those loaded with blanks, I explained, you have a duty to master these principles.

The disregard for basic gun safety I witnessed that day wasn’t an isolated incident. It was emblematic of a problem in the film industry and a symptom of the profound contradictions in Hollywood’s attitudes toward firearms.

On movie sets, real guns, often modified to fire blanks, are commonplace. Gunfights and shootouts are staples of blockbuster entertainment, and the characters wielding those weapons, from James Bond to John Wick, are glamorized and idolized. Violence — often stylized gun violence — has long been a lucrative part of the Hollywood ecosystem. At the same time, Hollywood is perceived as a bastion of liberal politics and a leading voice in the push for gun control. After mass shootings, many actors and executives make impassioned pleas for stricter regulations on firearms. They use their influential platform to turn public opinion against American gun culture.

It’s a jarring contradiction, one that the industry has long ignored — but one that I believe it can no longer avoid confronting. The tragic shooting on the set of “Rust” in 2021, which claimed the life of a cinematographer, Halyna Hutchins, has cast a harsh spotlight on the consequences of a cavalier attitude toward guns. The details of the episode paint a picture of an environment where basic gun safety protocols were neglected. Live rounds were mixed with blanks. Firearms were handled with shocking nonchalance. The result was a cascading series of errors that culminated in a preventable death.

The conviction last week of the film’s armorer, Hannah Gutierrez-Reed, for involuntary manslaughter, and an assistant director’s plea of no contest to a charge of negligent handling of a deadly weapon, underscore the systemic nature of the problem. It’s not just about individual lapses in judgment but about a broader culture of laxity and disregard for the lethal potential of firearms on set.

The “Rust” tragedy should be a wake-up call for Hollywood. It demands a top-to-bottom re-evaluation of how guns are handled in the entertainment industry. The industry needs stronger safety protocols and more rigorous training, in conjunction with experienced and qualified armorers. It needs actors to educate themselves and respect the deadly power of guns, even those firing blanks. It needs producers and directors to prioritize safety over expediency. And it needs a system where anyone can speak up about unsafe practices without fear of reprisal.

Since Ms. Hutchins’s death, some in the industry have begun to take action. Guy Ritchie, a veteran action movie director known for films that prominently feature firearms, announced he would no longer use real guns on his sets, instead opting for airsoft pellet weapons. The actor Dwayne Johnson, whose production company is behind action films like “Red Notice,” committed to avoiding real firearms on his sets, even if it meant increased visual effects costs. Over 200 cinematographers also signed an open letter calling for a ban on functional firearms in filmmaking and refusing to work on sets that use them.

These are encouraging steps. But these actions need to be part of a fundamental cultural shift — one that brings to film sets the seriousness and respect for firearms that are drilled into military and law enforcement professionals.

The very language Hollywood uses, particularly the term “prop gun,” is emblematic of the problem. The phrase “prop gun” suggests something inauthentic, a harmless facsimile of a real weapon. This is a dangerous misnomer. The guns used in films are typically real firearms, often modified to fire blank rounds or to be nonfunctional. By referring to them as mere props, the industry perpetuates a false sense of safety, downplaying the genuine risks these weapons pose.

The military’s approach to gun safety is a stark counterpoint to Hollywood’s complacency. In the military, every round, whether blank or live, is treated as potentially lethal. Any exercise involving firearms involves multiple, meticulous safety checks. The final responsibility rests with the individual pulling the trigger, who must confirm the weapon’s safety before firing. It’s a culture of uncompromising discipline and accountability, where the consequences of complacency are well understood.

The most important lesson Hollywood can learn from the military is an ethic of shared responsibility — that everyone, regardless of rank, has a duty to ensure safety. In the Navy, if a young sailor crashes a ship while the captain sleeps, both are held responsible. In 2023 alone, the Navy relieved 16 commanding officers, some almost certainly because of the actions of their subordinates. That accountability is what’s sorely lacking in Hollywood.

The path forward is clear, if not easy. Hollywood must adopt a new ethic, one that treats guns with the seriousness they deserve. It must foster a culture where safety is paramount, where no one is too important or too busy to follow basic protocols. It must train its talent, its crews and its leadership to view gun safety not as an optional extra but as a core competency and a moral imperative.

The film industry has a unique power to shape culture, to lead society in grappling with complex issues. But it can’t authentically take on the debate around America’s relationship with guns until it resolves its own internal contradictions. It can’t advocate responsible gun laws while simultaneously glamorizing reckless gun use. And it can’t demand accountability from others while avoiding it on its own film sets.

To read more CLICK HERE

No basis to impeach, refer for criminal prosecution

Facing the prospect that they may never be able to impeach President Biden, House Republicans are exploring a pivot to a different strategy: issuing criminal referrals against him and those close to him, reported The New York Times.

In recent weeks, a political and factual reality has set in on Capitol Hill. Despite their subpoenas and depositions, House Republicans have been unable to produce any solid evidence of wrongdoing by Mr. Biden and lack the votes in their own party to charge him with high crimes and misdemeanors, the constitutional standard for impeachment.

Instead, top G.O.P. lawmakers have begun strategizing about making criminal referrals against Mr. Biden, members of his family and his associates, essentially sending letters to the Justice Department urging prosecutors to investigate specific crimes they believe may have been committed.

The move would be largely symbolic, but it would allow Republicans in Congress to try to save face while ending their so far struggling impeachment inquiry. It has the added appeal for the G.O.P. of aligning with former President Donald J. Trump’s vow to prosecute Mr. Biden if he wins the election.

And it would avoid a repeat of the humiliating process House Republicans, who have a tiny and dwindling majority, went through last month with the impeachment of Alejandro N. Mayorkas, the homeland security secretary. After initially falling short of the votes to impeach Mr. Mayorkas, Republicans barely succeeded on the second try, only to realize that the Democratic-controlled Senate was poised to quickly acquit him — or even dismiss the charges without a trial.

“There’s nothing that I’ve heard in the last couple of weeks that says that we are anywhere close to having the votes” for impeachment, said Representative Kelly Armstrong, Republican of North Dakota and the author of the resolution authorizing the impeachment investigation.

Mr. Armstrong said he believed criminal referrals were the much more likely outcome. Mr. Armstrong suggested House Republicans could make referrals regarding alleged violations of the Foreign Agents Registration Act in connection with international business deals by Hunter Biden, the president’s son, and suggested that the Justice Department investigate accusations of obstruction.

“I’m still interested in why we haven’t gotten better answers on the whole-of-government approach to obstructing all of these investigations,” Mr. Armstrong said.

Republicans say they are not finished with their investigation, and could still change course and decide to hold an impeachment vote. They have scheduled a public hearing next week with former business partners of Hunter Biden, though Mr. Biden himself has refused to appear.

 

In an interview, Representative Jim Jordan, Republican of Ohio and the Judiciary Committee chairman, said he was also demanding audio recordings of President Biden that were part of the special-counsel investigation by Robert K. Hur into his handling of classified documents.

Criminal referrals, Mr. Jordan said, were among the options “on the table” as the House G.O.P. moves forward.

Representative James R. Comer, Republican of Kentucky and chairman of the Oversight Committee, has repeatedly suggested in recent weeks that issuing criminal referrals could mark the end of the impeachment inquiry, rather than an impeachment vote.

“At the end of the day, what does accountability look like? It looks like criminal referrals. It looks like referring people to the Department of Justice,” Mr. Comer said in a recent interview with Fox News’s Sean Hannity. “If Merrick Garland’s Department of Justice won’t take any potential criminal referrals seriously, then maybe the next president, with a new attorney general, will.”

To read more CLICK HERE

Cash bail is a sanction for poverty

On any given day, approximately 514,000 people are held in local jails across the United States. Though defendants are presumed innocent until proven guilty, more than 80% of the jail population are awaiting trial and have yet to be convicted of a crime, reported the Reason Foundation. Defendants accused of particularly serious violent crimes or who pose a credible threat to public safety may be detained in jail while awaiting trial. However, most defendants are entitled to pretrial release. Judges may impose conditions on a defendant’s release, such as electronic monitoring or supervision through a pretrial services agency.

Monetary release conditions, commonly referred to as “cash bail” or “money bail,” are among the most common types of pretrial release conditions in the United States. Cash bail allows defendants to secure their release by depositing a specified amount of money with the court as collateral, providing a financial incentive for compliance during the pretrial phase. If a defendant appears as required through the disposition of their case, the bail amount is returned to them. If a defendant fails to appear in court as required, the bail amount is forfeited, and the defendant may face additional criminal charges or penalties.

Cash bail was historically intended to provide a financial incentive for defendants to show up at required court dates, but reforms adopted in the 1970s and 1980s allow judges to also consider potential risks to public safety when making bail decisions. Under the right circumstances, cash bail is an appropriate tool for ensuring defendants cooperate throughout the pretrial period. However, many defendants cannot afford the cost of bail and are consequently detained for no reason other than their inability to pay.

Recent research suggests that bail decisions can result in defendants losing their jobs, coerce defendants into accepting plea bargains, and increase the probability that defendants are convicted. Given the potential negative consequences of pretrial detention resulting from an inability to afford cash bail, reform advocates have suggested limiting the use of monetary release conditions. Reforms to pretrial policy require policymakers to balance several competing interests, many of which are difficult to quantify. For example, it is not possible to quantify the normative value of the presumption of innocence or American’s Constitutional right to reasonable bail. However, research evidence can shed some light on the efficacy of cash bail for ensuring compliance during the pretrial period.

With some caveats, the studies included in this review collectively suggest that monetary release conditions like cash bail do not consistently improve court attendance and may not result in net crime reduction. Other factors, including indigence, drug use disorders, and criminal history, are generally stronger predictors of court attendance than the imposition of monetary release conditions. Conservatively, we can conclude that the United States relies too heavily on monetary release conditions. The bulk of available evidence suggests that curtailing the use of monetary release conditions among low-risk defendants would not result in dramatic drops in court attendance or increased risk of reoffending. There is even some evidence that pretrial reforms that reduce detention of low-risk, bond-eligible defendants may actually improve public safety. Additional research is needed to evaluate more ambitious reform proposals.

To read more CLICK HERE

Creators: When Clemency Is Not Enough

Matthew T. Mangino
Creators Syndicate
March 11, 2024

Ever hear of Philip Esformes? If you haven't, chances are you will hear about him this summer or fall.

Philip Esformes was raised in an Orthodox Jewish community outside Chicago. His father, Morris Esformes, a rabbi, business executive and well-known philanthropist, made a fortune in the nursing home industry.

Philip eventually took over the family business, expanding the health care chain in Florida. According to The Washington Post, as Esformes' wealth expanded, he bought private planes, multiple residences and exotic cars; he drove a $1.6 million Ferrari and wore a $360,000 wristwatch.

The son of a rabbi was living the high life. That all came crashing down in 2016. Esformes was charged by the United States Department of Justice as part of the largest health-care fraud scheme ever prosecuted.

At the time, prosecutors said Esformes bribed doctors to put patients into his nursing homes, where they often received inadequate care or were given unnecessary services that were then billed to Medicare and Medicaid.

Esformes personally netted more than $37 million from the yearslong scheme. According to CNBC, a federal prosecutor described Esformes as "a man driven by almost unbounded greed."

The jury convicted him of 20 criminal counts at trial, but deadlocked on six other counts. A judge sentenced Esformes to twenty years in prison.

After his incarceration, Esformes immediately sought the influence of high-ranking former government officials to seek clemency. An attorney with the Aleph Institute, a Jewish charity affiliated with the Chabad-Lubavitch movement and frequent object of the elder Esformes' charity, began lobbying the White House. Esformes' team enlisted help from Edwin Meese and Michael Mukasey, two former U.S. attorneys general; and Larry Thompson, a former second in command at the DOJ.

With the support of then Attorney General William Barr, the fruits of their labor paid off. Having served less than five years of a 20-year sentence, Esformes walked out of federal prison. In the waning days of Donald Trump's presidency, Trump granted him clemency.

Esformes had seemingly caught a big break. He was a free man. However, the Biden Justice Department had a different idea. The DOJ announced that it intended to retry Esformes on the six counts that the jury could not reach a unanimous verdict.

Retrying a defendant on charges in which the jury is deadlocked, commonly known as "hung," is not unusual. Retrying a defendant after a few charges are hung but a majority of charges result in convictions is unusual. Retrying a defendant on hung charges after clemency is granted is also extremely unusual.

It was Trump who left the door open to new prosecutions. Trump granted clemency, cutting short the length of the sentence, on the 20 charges Esformes was convicted of but did not grant relief on the six charges he was not convicted.

The questions surrounding the case come down to whether trying Esformes again violated the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution — being tried twice for the same crime.

According to The Washington Post, prosecutors argued that if Trump had wanted to make sure Esformes could not be retried on the hung counts, "he could easily have done so" by granting him a pardon or specifically referencing those counts. "He did neither," they wrote.

Although the decision to retry Esformes was universally assailed on the "right," it appears to have been accepted by his legal team.

Last month, Esformes pleaded guilty to one count of conspiracy to commit health care fraud and was sentenced to time served, with prosecutors agreeing to dismiss the remaining five counts.

In the meantime, the Federal Court of Appeals affirmed the District Court's judgment on Esformes' original convictions and sentence, the restitution award of $5.5 million and the forfeiture judgment in the amount of $38.7 million.

It was a rather subdued conclusion to what started out as a highly charged decision by the DOJ. If this were any other year or any other time, that might be the end of the story. But this is 2024, anything is political fair game in the Trump v. Biden rematch.

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.

To visit Creators CLICK HERE

Data Brokers sell people’s private data to the government

Fourth Amendment protects people only against unreasonable searches by government

The Federal Trade Commission is poised to ban a data broker from selling sensitive location data as the Biden administration just issued an executive order to limit sensitive data sales to certain countries of concern, reported Lawfare. Yet a major customer of these data brokers is the U.S. government itself. For years, news outlets have reported on how federal and state agencies buy Americans’ data from private companies called data brokers—in mass. 

These brokers purchase and aggregate users’ location data from virtually all applications. Brokers, in turn, repackage and sell geolocation data to willing buyers, including the federal and state governments. This has led to the government purchasing data on 98 million users from a prayer app, as well as tens of millions of users’ data from dating apps, mobile games, the Weather app, Google, rideshare apps, and social media apps. This data can reveal some of the most intimate information about people, from their faith, political associations and beliefs, immigration status, pregnancy status or interest in seeking an abortion, and more. A recently declassified report from the Office of the Director of National Intelligence confirms what has been known for years: Brokers sell people’s private data to the government. 

Matthew Tokson describes this practice and some of the attendant Fourth Amendment issues in a previous Lawfare piece. Government attorneys claim agencies can purchase data without a warrant because the data is commercially available, meaning there can be no reasonable expectation of privacy with respect to this data, and because users signed a terms of service waiver, meaning they forfeited their privacy rights in the data. Tokson ably responds to both arguments, and suggests that a reasonable expectation of privacy persists in the data.

But commentators miss a foundational problem that puts this practice outside the scope of Fourth Amendment protection: a government purchase of data is not “state action” for constitutional purposes. As I argued in the Yale Law & Policy Review, even if users maintain a reasonable expectation of privacy over the data transacted by data brokers, the violation of their privacy is not cognizable under the Fourth Amendment. 

The Fourth Amendment in the Information Age

The Fourth Amendment prohibits “unreasonable searches” of people’s “persons, houses, papers, and effects.” It is the cornerstone legal protection against warrantless surveillance and a constitutional bulwark for privacy. The Fourth Amendment ordinarily requires law enforcement and intelligence agencies to obtain a warrant to conduct surveillance—for example, tracking people’s locations and wiretapping phones. As the Supreme Court has long made clear, a “search” occurs when the government violates your “reasonable expectation of privacy.” Thus, when the police, FBI, or CIA invade this reasonable expectation of privacy, they (generally) must obtain a warrant. 

In the 2018 Supreme Court decision Carpenter v. United States, law enforcement agencies forced two internet service providers to hand over detailed cell-service location information data on a robbery suspect. The Court held that the suspect had a reasonable expectation of privacy in these invasive geolocation records. Thus, to obtain these records, the government needed a warrant. It stands to reason that when the federal government and state agencies purchase equally sensitive geolocation data from brokers, users have an equally reasonable expectation of privacy in the data sold by brokers as that addressed in Carpenter. (And under Kyllo, even commercially available data can be subject to a reasonable expectation of privacy, as both Tokson and I address elsewhere. That users signed terms-of-service waivers does not undermine users’ expectation of privacy, either.) 

So if users have a reasonable expectation of privacy in the data sold by brokers to the government, then why did the government need to obtain a warrant in Carpenter but need not obtain a warrant to purchase the data?

This is because of the “state action problem.” Axiomatically, the Fourth Amendment protects people only against unreasonable searches by the government, not against those conducted by purely private parties. When the Supreme Court first articulated the “reasonable expectation of privacy” test, it made clear that the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion” (emphasis added). Thus, when a private citizen or company invades your reasonable expectation of privacy, those “invasions ... d[o] not violate the Fourth Amendment because of their private character.” Private searches, then, are not governed by the Fourth Amendment. (Instead, they are governed by common law tort and state statutes.) 

For the Fourth Amendment to require a warrant to purchase your data, then, the act of buying data itself must constitute a “search”–otherwise, there is no state action, and all that has occurred is a private search. 

To read more CLICK HERE