The Vindicator: Torch carried by The Vindicator since 1869 is being extinguished

Matthew T. Mangino

The Youngstown Vindicator

July 20, 2019

The Mahoning Valley should “rage at the dying of the light”

Beyond the three traditional branches of government – legislative, executive and judicial – there is another equally powerful, and indeed essential, component to a free democratic society: the free press referred to as the Fourth Estate.

The First Amendment protects freedom of the press. A free press is the cornerstone to a thriving democracy, functioning as a watchdog that can investigate and report on government wrongdoing.

The Fourth Estate, as the political philosopher Edmund Burke referred to it, was considered to be the most important power estate of his time. At the time of Burke, and into the 20th century, it was difficult for an individual to be heard. The newspaper was a vehicle that people relied upon to keep power in check.

Political corruption

Over the years The Vindicator wrote about the evils of unchecked corporate greed and the plight of Mahoning Valley workers; the ills of McCarthyism and the corruption and excesses of Watergate. Locally, this paper was a tireless voice against political corruption and organized crime.

Soon that voice will go silent. The Mahoning Valley has endured countless hardships. Steel mills closed, businesses of all sorts moved out of town, even as light began to shine at the end of the tunnel GM Lordstown closed. However, nothing is quite like the loss of a town’s newspaper.

Much of the litigation over the years regarding the First Amendment focused on what is known as prior restraint – the review and restriction of speech prior to its release.

Prior restraint has a history of being viewed as a form of oppression in the United States. The Founding Fathers had experienced the effects of prior restraint while under British rule, and they specifically used language in the First Amendment to guard against prior restraint, which they felt was a violation of democratic principles.

demise of newspapers

Unfortunately here in Youngstown, and in many cities and towns across the nation, a form of prior restraint is being foisted upon the people. The news in not being reviewed and censored, it is being voluntarily silenced. Could you image in 1882 or 1982 if the government came along and said we’re going to close The Vindicator? There would have been an armed insurrection. Today, it’s “Oh well, another business is closing shop.’

The newspaper is not just another business. Sure, newspapers have a bottom line and things haven’t been good. The total estimated circulation of daily newspapers in the United States has steadily declined since the late 1980s, from approximately 63 million to 31 million. Advertisement revenue has plunged from $49 billion in 2005 to $17 billion in 2017.

Yet, the newspaper is the fabric of the community. It is a forum to exchange ideas. In 2006, The Vindicator gave me a chance to express my views about crime and punishment. In the last 13 years I have written about 136 columns for The Vindicator; today’s is my last.

Newspapers are where ordinary, and extraordinary, people celebrate their achievements and share their sorrows–births, deaths, graduations and championships to name a few.

Shining light

A newspaper is a shining light in the community. States across the country, including Ohio, have Sunshine laws that ensure that the work of the government is not done in secret. Often violations of Sunshine laws are unearthed by zealous reporters who discovered government officials not following the rules.

That light is beginning to dim in Youngstown. But that doesn’t have to be the end of the story. As the Welsh poet Dylan Thomas wrote in 1947, “Do not go gentle into that goodnight ... rage, rage at the dying of the light.”

The Mahoning Valley needs to keep kindled the torch carried by The Vindicator for a century and a half.

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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The Vindicator: MATTHEW MANGINO | ‘Dysfunctional’ Ohio Parole Board urgently needs parole guidelines

Matthew T. Mangino

The Vindicator

May 15, 2019

When former Ohio lawmaker Shirley Smith resigned from the Ohio Parole Board, she told the Dayton Daily News that the agency was “dysfunctional, secretive and toxic.”

There are approximately 49,500 inmates in Ohio’s state prison system. The parole board has discretion over only about 9,000 inmates. In 1996, the state enacted truth-in-sentencing requiring sentences of a specific term. As a result, the board has discretion over about 3,900 inmates sentenced under the old law and another 5,000 inmates serving life sentences for serious crimes such as murder.

The Ohio Parole Board may only grant parole “if in its judgment there is reasonable ground to believe that ... paroling the prisoner would further the interests of justice and be consistent with the welfare and security of society.”

According to the Daily News, between 2011 and October 2018, the parole board granted release for 1,076 inmates out of the 10,575 interviews it conducted – a parole rate of 10.2 percent.

Video conference

Board members are appointed by the director of the Ohio Department of Rehabilitation and Correction. Board members interview parole-eligible inmates via video conference. Interviews and deliberations are closed, but decisions are public record.

The Ohio Parole Board operates largely behind closed doors. Records are kept secret, full board meetings are open to the public but debate and votes are conducted behind closed doors.

Smith’s departing critique of the board has opened the system, and process, to scrutiny. Criticism has begun to grow from crime victims, inmates and attorneys.

The Department of Rehabilitation and Correction has a new director – Annette Chambers-Smith. The new director is talking about reform. She believes change is needed, including increased transparency.

Gov. Mike DeWine has also jumped into the fray. DeWine would like to add new members to the parole board from different backgrounds, improve training and establish new guidelines weighing inmate misconduct.

Inadequate suggestion

Although the governor’s suggestion to create behavior guidelines is a step in the right direction, it too is inadequate. Ohio needs to establish guidelines to aid board members in making decisions. For instance, the Pennsylvania Board of Probation and Parole, on which I served for six years, uses a regularly normed parole guideline. The instrument is generated for every inmate eligible for parole and being interviewed by a panel of the parole board.

The Pennsylvania parole guidelines consider such things as behavior in prison, program completion, prior supervision history, prior criminal history, future risk and the nature of the offense resulting in the inmate’s incarceration.

Each inmate is provided a numerical score which indicates whether the inmate is “likely” or “unlikely” to be paroled.

The Pennsylvania Board also uses various assessments including risk, sex offending, mental health and drug and alcohol. The guidelines provide uniformity to the board’s decision making. The parole rate for the Pennsylvania Board of Probation and Parole is about 58 percent.

That is not to suggest that Ohio’s parole rate should be comparable. Pennsylvania’s board sees, or votes on, the parole of every violent and non-violent offender in state prison who is eligible for parole.

Hefty sentences

Ohio’s board is only seeing inmates who were incarcerated before truth-in-sentencing was established. The inmates who are left received hefty sentences and many presumably committed serious, violent offenses. The other segment of the prison population Ohio deals with are lifers. The lifers are usually the worst of the worst.

DeWine said his administration is appointing three new members to the board – a public defender, a prosecutor and a state lawmaker.

“The reforms of the Parole Board are a work in progress. There is going to be more besides what we are announcing today,” he told the Daily News, adding that he is working with state lawmakers on additional changes.

Creating parole guidelines would provide consistency and transparency to the parole process in Ohio and would go a long way toward gaining the confidence of the governor, lawmakers and most importantly, the public.

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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The Vindicator: Ohio joins growing number of states stopping executions

Matthew T. Mangino

The Youngstown Vindicator

March 3, 2019

In late January, Ohio’s newly-elected governor, Mike DeWine, granted a six-month reprieve to Warren Keith Henness. Recently, DeWine halted all executions in the state until the Department of Rehabilitation and Correction is able to develop a new execution protocol approved by the courts. Ohio joins Pennsylvania and six other states with some sort of formal hold on executions.

DeWine’s “moratorium” on executions comes in response to Dayton Federal Magistrate Judge Michael Merz’s opinion suggesting the state’s current three-drug execution protocol is a combination of “waterboarding and a chemical fire.”

“If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering ... enough to constitute cruel and unusual punishment,” wrote Judge Merz.

He did not stop Henness’ execution but De- Wine, who sponsored Ohio’s capital punishment law as a state senator in 1981 and later represented the state in death-penalty cases as attorney general, did.

This is not Judge Merz’s first shot at Ohio’s death penalty. Two years ago, he ruled that there was a “substantial risk of serious harm” in using midazolam, a sedative for executions. He granted an injunction blocking all executions.

A three-judge panel of the 6th U.S. Circuit Court of Appeals ruled 2-1 to uphold the injunction. The panel also barred the use of any protocol that contained potassium chloride, which stops the heart, and any drug that acts as a paralytic agent.

The case returned to the 6th Circuit to be heard en banc – all of the judges would rehear the case. This time, in an 8-6 ruling the 6th Circuit rejected Merz’s injunction.

Twice in two years Judge Merz found lethal injection in Ohio violated the Eighth Amendment’s ban on cruel and unusual punishment. This is in spite of a 2008 U.S. Supreme Court decision out of Kentucky that ruled lethal injection was not cruel and unusual punishment. In fact, the Supreme Court has never found a method of execution to be cruel and unusual. That list includes hanging, firing squad, electric chair and gas chamber.

This latest twist in Ohio’s death-penalty saga is in stark contrast to the state’s recent history with the death penalty. Between 2009 and 2011, Ohio carried out 17 executions second only to Texas, a state that has carried out more executions than the other top five states combined.

Four of those 17 men executed – Jason Getsy, Kenneth Biros, Mark Brown and Roderick Davies – were from either Trumbull or Mahoning counties.

There is real concern about Ohio’s death chamber. The state has had its share of executions gone awry.

In 2009, Romell Broom was scheduled to be executed. Corrections officials tried for two hours to maintain an IV for injecting the lethal drugs, reported the Washington Post. Finally, Ohio Gov. Ted Strickland intervened. Broom survived his execution and remains on death row today.

In 2014, Ohio became the first state in the nation to use a new and untried lethal-injection protocol involving midazolam and hydromorphone, a sedative and morphine derivative.

It did not go well. Convicted killer Dennis McGuire took 25 minutes to die. Prior executions took about 12 to 15 minutes. McGurie appeared to gasp several times during the execution, according to the Cleveland Plain Dealer.

He made several loud snorting or snoring sounds during the time it took him to die. It was one of the long- est executions since Ohio resumed capital punishment in 1999, reported the Associated Press.

In November of 2017, 69-year-old Alva Campbell was scheduled to die by lethal injection. Campbell’s attorney said he watched as his client was stuck with needles four times in different parts of his body, and cried out in pain.

After about 25 minutes, Ohio Gov. John Kasich halted the execution, reported NBC News. For the second time in less than 10 years a condemned inmate in Ohio survived his execution. Campbell died of natural causes three months later.

DeWine did not say when he expects executions to resume, “[a]s long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio.”

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

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The Vindicator: ‘Stand your ground’ gets new life

Matthew T. Mangino

The Vindicator

December 23, 2018

In November, the Ohio House of Representatives approved legislation that would include a provision for “stand your ground” self-defense. The vote in favor of the legislation was a whopping 2-to-1.

The bill is in the Senate and in spite of the overwhelming support in the House this legislation is far from a done deal.

A similar bill was thwarted in 2013, and Ohio’s outgoing governor, John Kasich, said he would veto the legislation. However, that may change with Gov.-elect Mike DeWine.

In 2013, the Fraternal Order of Police and the Ohio Prosecuting Attorneys Association opposed stand your ground. Both organizations have taken the same position this time around. “That’s obviously an officer safety issue that we’re concerned with,” Michael Weinman, spokesman for the FOP, told the Cincinnati Enquirer.

Florida law

In 2005, Florida passed the first stand your ground law expanding on what was known as the Castle Doctrine. The Castle Doctrine permitted the use of deadly force within one’s home without first attempting to retreat.

Florida’s stand your ground law stated “a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

According to the National Conference of State Legislatures, laws in at least 25 states provide that there is no duty to retreat from an attacker in any place in which one is lawfully present. At least 10 of those states, including Pennsylvania, have language stating one may stand his or her ground.

Pennsylvania’s law, amended in 2011, distinguishes the use of deadly force outside one’s home or vehicle. It provides that in such locations one cannot use deadly force unless there is a reasonable belief of imminent death or injury, and either the ability to retreat safely is not present or the attacker displays or uses a lethal weapon.

Research published recently in the Journal of the American Medical Association suggests that stand your ground increased homicide rates.

Soon after the law took effect in Florida, there was a sudden and sustained 24 percent jump in the monthly homicide rate – the rate of homicides caused by firearms increased by 32 percent.

An investigation by the Tampa Bay Times, a Florida newspaper, found that the rate of homicides declared justifiable tripled in the five years after the passage of stand your ground.

In Ohio, the proposed law would also shift the burden of proof for self-defense from the individual who used deadly force to the prosecutor. The prosecutor would have to prove beyond a reasonable doubt the individual didn’t act in self- defense.

More than 11 million Americans now have concealed carry permits. Stand your ground and the proliferation of gun ownership has increased the potential for unnecessary violent confrontations.

‘Fear and Quarrels’

Lawmakers recognized this concern centuries ago. According to a New York Times op-ed by Robert J. Spitzer, a professor at the State University of New York-Cortland, in 1686, New Jersey enacted a law against wearing weapons because they induced “great Fear and Quarrels.”

Massachusetts, North Carolina and Virginia passed similar laws in the 18th century. By the 19th century, 37 states joined the list prohibiting concealed weapons.

Now, on the eve of 2019, state lawmakers are promoting the concept that toting a gun and shooting first – asking questions later – will promote peace and harmony in neighborhoods across Ohio.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino.
NOTE: Governor Kasich vetoed the Bill before Christmas.

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The Vindicator: Pennsylvania must stop arbitrary suspension of driving privileges

Matthew T. Mangino

The Vindicator

September 29, 2018

Paul Bell was a preacher in Georgia in the late 1960s. The weekend before Thanksgiving 1968, Bell was driving to one of the three churches he oversaw when 5-year-old Sherry Capes crashed her bicycle into the side of Bell’s car.

Bell didn’t have insurance. At the time, Georgia law provided that the registration and license of an uninsured motorist involved in an accident would be suspended unless the motorist posted a bond to cover the cost of any claim.

Bell fought his case all the way to the U.S. Supreme Court contending he was entitled to a hearing to show he was not at fault, before his license was suspended. In 1971, the High Court ruled that the holder of a driver’s license has a property interest in that license and that the license may not be suspended or revoked without due process of law.

Due process

The requirements of due process include notice and an opportunity to be heard at a hearing. Due process may also require an opportunity to confront witnesses and the right to be represented by counsel.

In Bell’s case the court concluded that once issued, a driver’s license is essential in the pursuit of his livelihood. Bell traveled to three different churches to serve his rural congregations. For everyone else, it meant a driver’s license was more than just a piece of paper; it had value and could not be arbitrarily taken.

Nearly 50 years later, Pennsylvania is one of 12 states that still imposes mandatory driver’s license suspensions for certain drug offenses, without due process of law, regardless of whether the crime has anything to do with driving.

Between 2011 and 2016, Pennsylvania suspended the driver’s licenses of about 149,000 people for “drug convictions unrelated to traffic safety,” according to the York Daily Record. Those individuals are essentially deprived of the ability to work, attend school or care for themselves and their family.

A driver’s license is not a privilege – it is a necessity. Individuals who live in rural areas with limited access to public transportation – and there are a lot of such areas in Pennsylvania – are essentially stranded without access to even basic necessities without the help of neighbors, family and friends.

Gainful employment

A lawsuit filed in Pennsylvania by Equal Justice Under Law alleges that it is critical for people who have criminal convictions to maintain gainful employment, pursue education, keep doctor’s appointments and take care of family members. Imposing “additional and debilitating” measures against a driver whose license has been suspended “make(s) successful post-conviction rehabilitation a near impossibility.”

Even public safety is at risk when the legislature “piles on” drug offenders.

According to the lawsuit filed by Equal Justice Under Law, drivers with suspended licenses often drive out of necessity even while their licenses remain suspended, requiring law enforcement to devote time to policing noncompliance rather than focusing on legitimate threats to traffic safety.

A study of suspended and revoked driver’s licenses in Pennsylvania found “[t]here is significant and increasing frustration in the law enforcement community as a result of the increased administrative workload and time and energy required for non-driving related offenses,” suggesting that non-traffic related license suspensions burden public safety resources rather than increases public safety.

Legislation

Gov. Tom Wolf supports legislation to eliminate non-driving related driver’s license suspensions. GOP State Rep. Rick Saccone is the primary sponsor of House Bill 163, which would remove driver’s license suspensions for non-driving offenses. The House overwhelmingly passed the bill with a vote of 192-3.

The measure is now in the Senate Transportation Committee.

The measure is a common sense plan for alleviating the burden on drivers, law enforcement and the courts. A significant majority of the states, including Ohio, have taken action to acknowledge the arbitrary act of taking an individual’s driving privileges – it is not only a bad idea but unconstitutional. Pennsylvania needs to follow suit.

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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The Vindicator: Ohio on right track with justice reform

Matthew T. Mangino

The Youngstown Vindicator

July 15, 2018

When crime rises, the first inclination of lawmakers is punishment. Longer sentences, mandatory minimums and extended periods of supervision all add to the cost of the criminal justice system with little impact on the rate of recidivism.

For politicians, that’s a tough sale to the public. Trying to convince taxpayers that it’s more prudent and cost effective to invest in rehabilitation rather than punishment can cost a lawmaker his job.

Ohio is in a position to proceed with meaningful sentence reform without waiting on politicians to act. A bipartisan coalition of community, law enforcement, faith and business leaders has proposed a ballot measure for November to reduce penalties for nonviolent drug offenders.

Signatures

Supporters of the “Neighborhood Safety, Drug Treatment and Rehabilitation” amendment submitted 730,031 signatures recently to the various county election boards. The Ohio Secretary of State has until July 24 to certify or reject signatures. To qualify for the ballot, 305,591 valid signatures of Ohio registered voters are needed.

The reform initiative comes at a time when Ohio is in the midst of one of the nation’s most lethal periods of drug abuse. Ohio’s drug overdose deaths rose 39 percent – the third-largest increase nationwide – between mid-2016 and mid-2017, according to figures released earlier this year by the federal government.

The state’s opioid crisis continued to explode in the first half of last year, with 5,232 Ohio overdose deaths recorded in the 12 months ending June 30, 2017, according to the Centers for Disease Control and Prevention.

Just across the border, Pennsylvania saw the largest increase in overdose deaths during that same period.

The escalation of drug deaths in Ohio was nearly three times the 14.4 percent increase in deaths nationally, which grew to about 67,000 across the U.S., according to government estimates.

In Columbus, Franklin County Coroner Anahi Ortiz said that the more recent estimates are even more grim.

“Compare the first three quarters of 2017 to the first three quarters of 2016,” Ortiz told the Columbus Dispatch. “So, an actual comparison day by day – we’ve already seen a 57 percent increase.”

Fentanyl is what’s mostly spurring the additional deaths, officials said. The synthetic opiate has been cut into the heroin supply and, in some cases, replaced heroin that’s sold on the streets, reported the Cincinnati Enquirer.

Fentanyl is more deadly because it’s about 50 percent stronger than heroin and is being altered to create a more potent fentanyl, according to the federal Drug Enforcement Administration.

Ohio’s reform initiative is risky. It is a long-term investment when people are looking for an immediate fix. Money saved from those affected by the amendment would be diverted to substance-abuse programs and to crime victims’ services.

Under the drug treatment and rehabilitation amendment, possessing, obtaining or using a drug or drug paraphernalia would be a misdemeanor offense, with a maximum punishment of 180 days in jail and $1,000 fine. First and second offenses within a two-year period could only be punished with probation. The amendment would not apply to drug dealers.

Half-day credit

Convicted individuals could receive a half-day credit against their sentence for each day of rehabilitative work or programming, up to 25 percent of the total sentence.

An individual on probation for a felony would not be sent to prison for a non-violent violation of probation.

The question facing policy makers: Is public safety better served by incarcerating drug offenders, or would drug treatment and prevention programs be more efficient and effective at curbing drug abuse and promoting public safety?

According to the Justice Policy Institute, studies by the nation’s leading criminal justice research agencies have shown that drug treatment, in concert with other services and programs, is a more cost effective way to deal with drug offenders.

Ohio appears to be on the right track.

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 the column CLICK HERE

The Vindicator: Teachers should not be armed

Matthew T. Mangino

The Vindicator

March 25, 2018

There was yet another school shooting last week – this one in Maryland. A school resource officer shot and killed the assailant after two students were gravely wounded. This will further intensify the debate over arming teachers.

President Donald Trump and the National Rifle Association argued in the aftermath of the massacre in Parkland, Fla., that enabling teachers to shoot back could save lives and could deter potential shooters from entering a school.

Trump clarified that he believes only those “adept” at using firearms should be armed not all teachers.

Teachers already are carrying concealed guns in a handful of states, including Ohio.

The idea of arming teachers is rooted in the NRA rhetoric that the only thing that can stop a bad guy with a gun is a good guy with a gun. However, as America watched video footage from the Parkland shooting, the good guys with guns stayed outside the building while the bad guy was firing away.

School shootings

According to the Washington Post, since 2000 there have been school shootings in 43 of the 50 states which have left about 250 students, and teachers, dead. Even one student losing his or her life in, or around, a school is a horrific tragedy.

Between 2002 and 2014, 6 percent of all gun-related deaths involving children 17 and under were unintentional or accidental deaths. According to The Journal of Pediatrics. the average number of children killed by gunfire annually is about 1,300. That means in the 13 years between 2002 and 2014 about 1,000 children died as a result of accidental shootings, four times the number of students intentionally killed in school shootings.

Therefore, bringing more guns into schools is not the answer.

Recently, a teacher at a northern California high school accidentally fired his gun inside a classroom, causing minor injuries to three students.

The teacher, a reserve police officer “adept” at firearms, was pointing the gun at the ceiling to make sure it was not loaded when it discharged inside his classroom.

Accidents happen all the time in schools. However, an accident with a gun can be fatal.

Written permission

In Ohio, a school board can give written permission to a teacher to carry a firearm into a school.

Without written permission even a teacher with a concealed-carry license must leave his weapon in the vehicle, according to Ohio Senate Bill 199, passed in March of last year.

Austintown Superintendent Vince Colaluca told The Vindicator this month that it is illegal to bring a firearm onto school grounds. An exception to the rule is an armed police officer.

“You go into education because you want to help kids become better citizens,” Colaluca told The Vindicator. “As long as we’re financially capable to provide the protection, we’ll continue to do so.”

There are school boards in Ohio that have authorized teachers to carry weapons but they don’t have to tell parents or the public.

“[S]chool boards do not have to publicize the fact that they’re allowing teachers to arm themselves,” Sara Clark, legal counsel for the Ohio School Boards Association, told the Columbus Dispatch. She said she is unaware of an official list and couldn’t estimate how many of Ohio’s 610 public school districts might allow teachers to carry weapons.

Free teacher training

Since 2013, the nonprofit, pro-gun, Buckeye Firearms Foundation has been offering free firearm training specifically for educators. On its website an essay is posted that provides, “Some kids need chemo. Some need armed protection. The fact that both are “rare” events is of little comfort when yours is the child in need.”

The fact that a child needs chemotherapy is devastating – but other students are not at risk during treatment. More guns in school increases the likelihood of an accident that can lead to a student’s injury or death.

Matthew T. Mangino, a fromer district attorney in Lawrence County, Pa., 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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The Vindicator: Ohio’s cash bail system unjust

Matthew T. Mangino

The Vindicator

December 31, 2017

The current bail system denies freedom to thousands of people who are presumed innocent but are financially challenged. Those who sit in jail are at risk of losing their jobs, their homes and their families.

Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in America to spend about $1 trillion, according to the Pretrial Justice Institute, on pretrial incarceration, which amounts to about 6 percent of the Gross Domestic Product.

Bail use explodes

According to White House Council of Economic Advisors, the use of bail has exploded in the past two decades, driving a 59-percent rise in the number of unconvicted jail inmates.

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

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

A number of Ohio advocacy groups have been pushing for the use of risk-assessment tools, reported the Plain Dealer of Cleveland. As a result, the Ohio Criminal Sentencing Commission formed a committee on bail and pretrial services to study the issue.

The commission released a report earlier this year that recommended courts establish a pretrial system that uses an “empirically based assessment tool” to help determine if somebody should be released from jail or kept in detention while awaiting trial.

Proposed law

The Ohio Legislature responded with a proposed law, which would require courts to use the results of a “validated risk assessment tool” as part of their bail-setting decisions.

As the pool of research grows and the science of risk assessment becomes more refined, “We actually have increasingly good models of who poses a risk and who doesn’t pose a risk,” John Pfaff, a professor of law at Fordham University, told The Washington Post.

The latest pretrial risk assessment tool is the Public Safety Assessment, developed by the Laura and John Arnold Foundation. Drawing from a database of over 1.5 million cases from more than 300 jurisdictions across the U.S., the algorithm calculates the probability that a defendant will commit a new crime, commit a new violent crime, or fail to return to court.

The assessment takes into consideration a number of factors, including pending charges, prior convictions, whether the current offense is violent, and whether the person has failed to appear at other pretrial hearings. But unlike a human assessor, it’s blind to race, gender, level of education, socioeconomic status, and neighborhood, all of which can affect a judge’s decision, whether subconsciously or consciously.

Some defendants being held pretrial belong in jail. Some are not eligible for bail, some are a legitimate flight risk and others a danger to society. However, some just can’t afford a monetary bond.

Detrimental impact

Detaining an accused pretrial also has a detrimental impact on families, employment and the viability of neighborhoods and communities disproportionately affected by the criminal justice system.

Ohio has now joined a chorus of jurisdictions calling for change. According to the New York Times, Colorado and New Jersey recently voted to overhaul their bail systems. Connecticut, New York, Nevada, Utah and Kentucky have adopted some sort of risk assessment tool to aid in making bail decisions.

Times are changing in the business of pretrial detention, and some merely accused of a crime – and every taxpayer – stand to benefit.

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

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The Vindicator: Lawmakers keep piling on those convicted of sex crimes

Matthew T. Mangino

The Youngstown Vindicator

September 24, 2017

How much is too much? Ma’lik Richmond must be asking himself that very question. The on-again, off-again Youngstown State University football player is embroiled in a controversy of his own making.

Richmond served about 10 months in a juvenile detention facility after he and a high-school teammate were convicted in 2013 of raping a 16-year-old girl.

In January, he joined the YSU football team as a nonscholarship walk-on. In August, Richmond was informed by university officials that he would be required to sit-out a season.

He filed suit against the university, and a federal judge granted him a temporary injunction. He played against Central Connecticut State University on Sept. 16. A hearing on a permanent injunction is scheduled for Thursday.

Prison population

Richmond was convicted of a horrible crime. People charged with sex offenses are the most rapidly increasing segment of the U.S. prison population, according to Marie Gottschalk, a professor of political science at the University of Pennsylvania. Politicians and the general public talk about sex offenders in terms of danger, deviance and pathological pariahs. In some instances that may be warranted, particularly with regard to offenses against children.

Gottschalk said during a recent interview, “According to the latest statistics on federal prosecutions, we are meting out longer sentences on average to people who view child pornography than to people who actually sexually abuse children.”

To use a football metaphor lawmakers across the country keep “piling on” convicted sex offenders.

Just last week, I wrote for GateHouse Media about the proliferation of onerous sentences and ever-longer registration requirements being fueled, in part, by an assertion in a U.S. Supreme Court decision in 2002 wherein Justice Anthony M. Kennedy wrote that the recidivism rate for sex offenders was about 80 percent.

According to Reason magazine, there was never any evidence to support the assertion, and research conducted during the period within which it proliferated indicated that it was not even remotely true. “Nearly every study – including those by states as diverse as Alaska, Nebraska, Maine, New York and California as well as an extremely broad one by the federal government that followed every offender released in the United States for three years – has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent.”

If fact, in some states–including Pennsylvania and Ohio – a sex offender can be detained after completing his or her sentence. The process is called civil commitment. Nearly 5,400 people are currently civilly committed in sexually violent predator programs in 20 states and by the federal Bureau of Prisons. According to The Marshall Project, 13 states allow this practice for people who committed their crimes as juveniles.

All 50 states and Washington, D.C., have developed sex-offender registries. More than 800,000 people in the U.S. are registered sex offenders.

Registries

While civil commitment and sex-offender registries are perhaps the most extreme examples of “civil” punishment tagged on at the conclusion of the “criminal” punishment imposed on people convicted of sex crimes, they are by no means the only tag -ons.

Driven by a pervasive fear of sexual predators, and facing no discernible opposition, according to the New York Times, “politicians have become ever more inventive in dreaming up ways to corral and marginalize those convicted of a sex related crime.”

As Richmond now knows, marginalizing former offenders is not exclusively for politicians.

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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The Vindicator: Dimensions of Trump’s troubles grow wider than scope of Watergate Scandal

Matthew T. Mangino

The Youngstown Vindicator

May 21, 2017

Last week, at the International Republican Institute dinner, Arizona Sen. John McCain, a Republican, reportedly said the scandals within President Donald Trump’s administration are reaching a “Watergate size and scale.”

McCain’s comment was prescient; within hours of his speech Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as special counsel to conduct the Russia investigation. Mueller will oversee an investigation that has the potential to be even more consequential than Watergate.

Here is why Trump’s problems are worse than Watergate. First, President Richard Nixon obstructed justice when he tried to cover up a “third-rate” burglary at the Democratic National Committee headquarters. President Trump allegedly intervened in an investigation into possible collusion by his administration and campaign with Russia, a foreign power and long-time nemesis of the U.S.

Resignation

Second, Nixon was 51/2 years into his presidency when he came under scrutiny and ultimately resigned. President Trump is a little more than 100 days into his presidency and senior members of his own party are comparing him to a former president that resigned in the face of impeachment.

Third, there are no voices of dissent within the Trump administration – with the possible exception of FBI Director James B. Comey who Trump fired.

There was resistance in the Nixon administration. When Nixon sought to fire special Watergate prosecutor Archibald Cox – he was initially defied by the Department of Justice.

In 1973, President Nixon demanded the Department of Justice fire Cox for refusing to obey the president’s order to abandon his demand for the “White House tapes.” Attorney General Elliot Richardson resigned rather than dismiss Cox.

When Nixon turned to Deputy Attorney General William Ruckelshaus to fire Cox, Ruckelshaus chose to resign as well. Finally, the Solicitor General Robert Bork carried out the demand.

When Trump “decided” to fire Comey, not only did the Justice Department not balk, senior Justice officials aided and abetted the president. Attorney General Jeff Sessions – who had recused himself from the Russia investigation – consulted with the president immediately before the firing.

Rosenstein also met with Trump before the firing, where, according to the Wall Street Journal, they discussed Director Comey’s job performance. At the White House’s request, Rosenstein wrote a memo to the president detailing his concerns about the director’s conduct. After President Trump pointed the finger at Rosenstein to support Comey’s firing, he was left with no alternative but to appoint a special counsel.

Has President Trump obstructed justice?

First, he fires Comey who as director of the FBI is overseeing an investigation of Trump’s administration and Trump’s campaign, right after Comey reportedly asked for more money and agents for the campaign.

Trump suggested during an interview with NBC’s Lester Holt that he was thinking about the “fake” Russia investigation when he fired Comey. However, Trump said at the time of Comey’s firing that the reason behind it was the mistreatment of Hillary Clinton during the email investigation – the same investigation that Trump rallied behind during his presidential campaign.

Loyalty pledge

The New York Times reported that President Trump asked Comey in January to pledge loyalty to him and that Comey refused to do so. According to sources, the director pledged honesty and independence.

Last week we learned that President Trump allegedly asked Comey in February to drop the investigation into his former national security adviser, Michael T. Flynn. Comey apparently has notes memorializing the meeting.

Nixon covered up a bungled break-in, and it cost him the presidency. President Bill Clinton faced impeachment for covering up a tryst in the White House. President Trump may well have attempted to obstruct the investigation into his administration’s ties to a major foreign power and his campaign’s possible collusion with that power.

Now Robert Mueller will investigate whether Mr. Trump committed a crime.

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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The Vindicator: Hamad case offers inside look at rare and little used defense involving use of deadly force

Matthew T. Mangino

The Vindicator

March 12, 2017

When does a person have the right to use deadly force in self-defense in Ohio? That question promises to generate a lot of attention in Trumbull County.

On Feb. 25, Nasser Hamad allegedly shot five people in a vehicle outside of his home in Howland. Two of those wounded died and the other three were injured. Hamad recounted the incident to police, saying all five occupants of the vehicle – 20-year-old Joshua Williams, 19-year-old Josh Haber, 43-year-old April Trent-Vokes, 20-year-old Bryce Hendrickson and a 17-year-old juvenile – left the van and a fist fight ensued between Hamad and the juvenile. Once the fight ended, all five returned to the minivan, The Vindicator reported.

Hamad allegedly returned to his house where according to his statement to police he retrieved a 9mm handgun from his bedroom and left the house shooting into the vehicle. After unloading the magazine, Hamad told police he went back into his house and retrieved more ammunition.

A witness told police, Hamad came back outside appeared with the gun and began again to shoot into the vehicle.

Self-defense claim

Hamad’s attorney suggested that his client will make a claim of self-defense and filed a series of legal documents with the court last week.

The law in Ohio requires a defendant asserting self-defense to prove by a preponderance of the evidence that the defendant was not at fault, had a belief that he was in imminent danger of death or serious bodily harm and retreat was not required.

While one has a duty to retreat when threatened in public, Ohio has the Castle Doctrine which sets forth a separate set of guidelines when facing a threat in one’s home. You do not have to retreat if an intruder enters your home and threatens you or your family.

Ohio Senate Bill 184, codifying the Castle Doctrine, became effective in 2008. The Castle Doctrine provides that “a person is presumed to have acted in self-defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.”

What is included in the term “residence?”

Some would suggest that the curtilage – the area immediately surrounding the residence – would be considered part of the residence. The curtilage is commonly considered when evaluating Fourth Amendment search and seizure cases.

In 2013, the U.S. Supreme Court decided that a drug sniffing dog that came onto a porch and hit on drugs resulted in an illegal search because the dog was on the curtilage of the home without a warrant. On the other hand, at least one court has found that curtilage does not apply to the Castle Doctrine defense of a residence.

A defendant must reasonably believe that he is in danger of imminent death or serious bodily harm. Retreating into one’s home after an altercation outside of the home seems to lend little credence to a claim that lethal force was needed in self-defense.

According to Alexis M. Haddox writing in the Capital University Law Journal, “[T]he courts avoided applying the presumption [of justification through the Castle Doctrine] where it would have resulted in acquitting an at-fault defendant, or where it simply would have produced an unjust outcome.”

Justification defense

A defendant has the right to assert a justification defense – he was justified in using lethal force. However, justified use of lethal force is extremely rare. For instance, according to the New York Times, in 2010 “there were only 230 justifiable homicides involving a private citizen using a firearm reported to the F.B.I.’s Uniform Crime Report.”

A local courtroom may be the venue to get a first-hand look at a rare and little used defense and the machinations of defense lawyers and prosecutors as they wade through a morass of social media posts, statements and eye-witness accounts.

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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The Vindicator: Chance at redemption in Pa.

Matthew T. Mangino

The Youngstown Vindicator

December 18, 29016

Just in time for Christmas, a gift from Pennsylvania Gov. Tom Wolf to many of the 3 million Pennsylvanian’s with a criminal record.

A criminal record often carries a lifetime of consequences, and even a minor criminal record can be a serious impediment to employment, housing, education and public assistance. More than half the states nationwide, including Ohio, allow some misdemeanor and even felony convictions to be expunged or sealed. Pennsylvania has now joined the ranks of those states offering its citizens a chance at redemption.

Act 5 of 2016 took effect last month and provides an opportunity for people who have been convicted of most second- and third- degree misdemeanors – such as driving under the influence and low level thefts like shoplifting – to ask the court to seal their criminal record.

“The United States is the world leader in incarceration and a criminal record often carries a lifetime of consequences that often lead to poverty or re-incarceration,” Gov. Wolf said in a recent press release. “This law is a commonsense, positive and unprecedented step to help Pennsylvanians with minor or dated criminal records have a fighting chance at opportunities for gainful employment.”

LIMITING ACCESS

Sealing a criminal record does not make the conviction disappear; it only limits access to law enforcement and certain state licensing authorities.

The main difference between sealing criminal records and expungement is the way the records are reported and maintained. When an expungement is granted under Pennsylvania law, an order of court accompanies the expungement for all authorities to destroy the records, including photographs, fingerprints, state police records and all county records.

Under the new Pennsylvania sealing statute, law enforcement is required to maintain a record of the conviction, but is no longer allowed to disseminate the records to anyone outside of law enforcement. The order of court is labeled as “Limited Access.” This means the Pennsylvania State Police may maintain the record, but may not disseminate the record to an individual, a noncriminal justice agency or an internet website.

Pardon

A pardon is another option to erase a criminal record. Although an expungement is very limited, a pardon can erase any conviction. A pardon relieves an individual of the consequences of a criminal conviction. A pardon constitutes total forgiveness by the governor, treats the crime as if it never happened and allows a job applicant to deny she was ever convicted of the crime.

Similar to Pennsylvania, Ohio adult convictions cannot be “expunged” or completely erased from a criminal record. Ohio utilizes a similar court ordered process known as “sealing a criminal record.”

In order to be eligible to have a criminal record sealed in Pennsylvania, the following conditions must be met:

Free of arrest and conviction for a period of 10 years;

Never convicted of certain crimes (felonies, first- degree misdemeanors some assault and sex offenses);

Have fewer than four misdemeanor convictions; and

All fines and costs associated with the conviction have been paid.

The benefits of having a criminal record sealed are compelling. Most states make criminal history information accessible to the general public through the internet, making it extremely easy for employers to disqualify applicants based on old or minor convictions.

PUBLIC HOUSING

Many public housing agencies deny eligibility for federally assisted housing based on even minor criminal convictions. Private landlords can lawfully refuse to rent housing to persons with certain criminal convictions.

Gun ownership is widely restricted after a criminal conviction.

Even students with convictions for minor drug offenses can feel the pain. The Higher Education Act of 1998 makes students convicted of drug-related offenses ineligible for any grant, loan or work assistance.

This holiday season, if you, or someone you know, has a minor misdemeanor conviction in Pennsylvania and $132 for the filing fee, treat yourself to a Christmas gift that promises to bring more than just a smile to your face.

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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The Vindicator: Selecting a jury for the trial of Robert Seman is crucial

Matthew T. Mangino

The Youngstown Vindicator

September 19, 2016

The composition of a jury in a criminal trial is extremely important. In fact, there is an old joke among lawyers about the difference between jury trials in Great Britain versus the United States. In Britain, the trial starts once the jury selection ends – in America, the trial is already over.

That process is playing out in Mahoning County. Common Pleas Judge Maureen Sweeney is presiding over jury selection for Robert Seman. Seman is accused of setting a house fire that killed 10-year-old Corinne Gump and her grandparents in 2015. The fire occurred the morning that Seman was to face trial for sexually assaulting Gump.

Tedious

A case can turn on the composition of a jury. As a result, the process can be time-consuming and tedious. The selection of a capital jury, one that will be asked to impose the death penalty, is jury selection on steroids.

The most dramatic difference between a regular jury and a capital jury is that each juror in a capital case must be “death qualified.” A capital juror may not be categorically opposed to the death penalty, but at the same time the juror may not be of the opinion that a first-degree murder conviction must result in the death penalty.

Last week, 19 jurors out of a pool of 160 were told to report to the court. Each of those jurors had completed a questionnaire that inquired into the potential juror’s background as well as their beliefs, relationships and opinions on various aspects of the criminal justice system.

As those jurors appear in court they are subject to individual voir dire, or in layman’s terms, individual questioning. The purpose of examining individual jurors is to reveal any potential bias.

Subjects for inquiry include: Has the juror ever been the victim of a crime? Does the juror have a family member in prison or is she related to someone in law enforcement?

Long before jury selection begins in a capital case, the attorneys involved know what they’re looking for in a juror – young or old; educated or uneducated; professional or blue collar; even whether the jury panel should be dominated by men or woman.

When there are resources available prosecutors or defense attorneys may employ the services of a jury consultant. A jury consultant can assist counsel in selecting a jury. Through focus groups and research a jury consultant will develop a profile for potential jurors.

During Seman’s jury- selection process, counsel on both sides will whittle down the number of potential jurors through a series of challenges. The first is a preemptory challenge. In Ohio each side in a capital case has six chances to remove a potential juror for any reason other than race, which is not an issue in this case.

The second type of challenge is for “cause.” If counsel can articulate a reason why a juror should be removed from the panel the judge will decide whether or not to excuse the juror. For instance, a juror tells the attorneys and judge that she has made up her mind about guilt based the news accounts that she has read or heard. The court will excuse the juror for cause without counsel having to use a preemptory challenge.

The more jurors who have been tainted by the media leads to a different problem – can a fair and impartial jury be empaneled in Mahoning County? It is not a question of whether a juror has heard about a high profile case like Seman’s, but whether a juror can set aside what they have heard and still be fair and impartial.

Judge Sweeney ruled against the defense’s request for a change of venue. The defense wanted the judge to bring a jury in from another county or have the court move the trial. Sweeney said the request to move the trial was “premature.”

However, as jury selection continues, and if it becomes increasingly difficult to seat jurors, the judge could reconsider the request.

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.

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The Vindicator: Ohio’s prison population rising

Matthew T. Mangino

The Youngstown Vindicator

July 2, 2016

The Ohio Department of Rehabilitation and Corrections (DRC) is on the verge of a dubious milestone. Despite the DRC’s efforts and resources, Director Gary Mohr said at a statewide conference in May, “I think it’s a pretty safe bet that by July 1 of this year, we will set an all-time historic record of incarcerated Ohioans.”

In 2011, Ohio enacted comprehensive criminal justice reforms focused on sentencing and corrections. The reforms, under the umbrella of the Council of State Governments Justice Center’s Justice Reinvestment Initiative (JRI), were intended to reduce the state prison population and use the savings to support law enforcement and public safety initiatives.

Projected savings

According to the Columbus Dispatch, the reforms were projected to save taxpayers $46 million by 2015. When the reforms were announced, Gov. John Kasich, who spent over 200 days out of state running for president in 2015-2016, said, “I get emotional about this because I think the passage of this bill and the changing of this law is going to result in the saving of many, many lives, maybe even thousands, before all is said and done.”

Ohio’s prison population increased 16 percent between 2005 and 2008, rising from 44,270 inmates to a record 51,273, driving prison overcrowding and spending growth, according to the Pew Trusts. By 2011, state prisons were 33 percent overcapacity. Absent reform, a projected influx of 3,000 inmates by 2015 would have required approximately $500 million in additional state spending.

Justice Reinvestment was supposed to reverse the soaring prison population and provide relief from the enormous cost of incarceration.

JRIs have been enacted in 27 states. JRI’s data-driven approach to improve public safety includes examining corrections and related criminal- justice spending; managing and allocating criminal justice populations in a more cost- effective manner; and reinvest ing savings in strategies that can hold offenders accountable and decrease crime.

The Policy Review found “significant costs savings have yet to materialize for JRI programs as a whole. States with Justice Reinvestment “were slightly less likely to reduce annual costs as compared to non-justice reinvestment states.”

The Policy Review found that from 2006-2013 justice reinvestment states were only .125 times more likely to reduce prison expenditures than increase expenditures while non-justice reinvestment states were .136 times as likely to reduce expenditures.

JRI is failing in Ohio. In October 2012, contrary to the projections of JRI, Ohio’s prison population began to increase. The DRC and some stakeholders speculated that implementation challenges were greater than anticipated, especially with regard to educating judges on the JRI reforms, according to the Council of State Governments. In November 2012, the DRC revised JRI projections indicating a smaller impact on the prison population than originally projected.

As of today, JRI’s impact on Ohio’s prison population is nil. The Legislature and governor’s response – fire the prison watchdog. As things began to look more and more bleak, Joanna Saul, executive director of the Correctional Institution Inspection Committee, was forced to resign.

Complaints

The inspection committee, established in 1977, to provide a legislative check and balance on the prison department mainly fielded complaints from inmates and their families. Saul expanded those responsibilities, and that roiled legislators.

Rep. Debbie Phillips, D-Athens, voted against changes in the inspection committee, “We need that kind of independent watchdog who is going to be able to withstand political pressure,” Phillips told the Dispatch. “It keeps an eye on how a great deal of tax money is being spent. It is important for the safety of the staff, the inmates and the general public.”

Without an independent watchdog and JRI’s ineffectiveness, prison costs will continue to climb at the peril of education, infrastructure and taxpayer’s pocketbooks.

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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Rights of victims are limited in plea negotiations in Ohio

Matthew T. Mangino

The Youngstown Vindicator

April 17, 2016

There are no two words associated with the criminal justice system that are more maligned and misunderstood than “plea bargain.”

Crime victims despise those two words; defense attorneys thrive on them; and prosecutors can’t survive without them. Politicians deride the system because of the underhanded “deals” made with vicious criminals. Even frontline police officers challenge prosecutors when they perceive that the terms of a plea bargain are too lenient.

Much needed tool

The plea bargain, however unpopular or unseemly, is a much-needed tool in the administration of justice. The truth is that 97 percent of federal cases and 94 percent of state cases end in plea bargains. As the system currently operates, it would be impossible to provide a constitutionally mandated trial-by-jury for every criminal defendant.

Setting aside the fact that trying every criminal case is beyond the capacity of the courts, there are other compelling reasons to plea bargain. Prosecutors are intimately familiar with the strengths and weaknesses of every case. There are circumstances where a plea to a lesser offense is better than a not-guilty verdict. A reluctant witness or a poor witness may also influence plea negotiations.

Many crimes are committed in rough neighborhoods that are inhabited by tough people. Witnesses often have to deal with their own demons, such as criminal records and substance abuse – such witnesses do not impress juries. In those cases, a plea bargain may not be palatable, but is better than the alternative.

Crime victims, people who have been physically and emotionally harmed, often do not want to hear about the strength or weakness of a case. They want justice, and that is often equated with a lengthy prison term. Victims want to be heard, and they have that right in Ohio. What victims don’t have is veto power over plea bargains.

“The Ohio Revised Code guarantees victims the right to confer with a prosecutor prior to a plea. If the prosecutor fails to do that, the judge can note that on the record,” Elizabeth Well, legal director for the Ohio Crime Victim Justice Center, told the Toledo Blade.

No teeth

“The issue with the crime victims’ rights law in Ohio is it doesn’t really have teeth,” Well said. “In some states, if the prosecutor doesn’t confer with the victim prior to accepting a plea and the court finds out, they can set the plea aside, basically undo it, but that’s rare.”

The final word on a plea rests with the district attorney, creating some concern in the criminal justice system. “We now have an incredible concentration of power in the hands of prosecutors,” Richard E. Myers II, a former assistant U.S. attorney and a professor at the University of North Carolina told the New York Times. He warned that with so much influence “in the wrong hands, the criminal justice system can be held hostage.”

This is not to suggest that all of that power is necessarily in the wrong hands. The vast majority of prosecutors are ethical and fair and no other individual in the criminal justice system is better positioned to understand the nuances of a case than a prosecutor. The prosecutor knows better than anyone that proving guilt beyond a reasonable doubt is a daunting task, under any circumstance.

Disappointing outcome

Jeff Lingo, chief of the criminal division of the Lucas County, Ohio, Prosecutor’s Office told the Blade, “If the victim thinks they’re disappointed with a resolution on the case, they may be even more disappointed if a jury can’t reach a conclusion and a person walks out of the court with no punishment.”

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.

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The Vindicator: Landmark Miranda case celebrates its half-century anniversary

Matthew T. Mangino

The Youngstown Vindicator

February 14, 2016

Fifty years ago this month, U.S. Supreme Court Justice Potter Stewart asked Atty. John J. Flynn, representing Ernesto Miranda before the court, what rights an accused should be advised of while in custody. Flynn replied, “[H]e had a right not to incriminate himself, that he had the right not to make any statement, that he had a right to be free from further questioning ... to be represented adequately by counsel in court, that if he was too indigent and poor to employ counsel, that the state would furnish him counsel.”

So was born Miranda v. Arizona, the landmark Supreme Court decision that has become a part of American culture. Miranda’s conversion from legal holding to cultural icon is due mainly to the nation’s insatiable appetite for television crime dramas. Everyone with a TV has heard Miranda warnings.

What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested on a robbery charge. While in the midst of an interrogation by police, he confessed raping an 18-year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to prison. Miranda appealed, and his case made its way to the U.S. Supreme Court.

The Supreme Court ruled in favor of Miranda and excluded his confession. Chief Justice Earl Warren wrote the court’s opinion finding a confession would be barred under the Fifth and Sixth Amendments unless a suspect had been made aware of his rights and the suspect had waived them. Warren made it clear, “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”

Far from pristine

As we mark the 50th anniversary of Miranda, it is important to note that the decision has remained far from pristine over the years. Nor was the ruling placed on a pedestal beyond the reach an activist courts – quite the contrary – the U.S. Supreme Court has continually tested, and at times, expanded and restricted, the decision.

For instance, in 1981 the Edwards rule was established. The court held once an accused invoked his right to have counsel present during custodial interrogation a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.

That changed in 2010. In a case out of Maryland, the court established a bright-line rule finding if at least 14 days passed from the time the suspect invoked his rights under Miranda, the police could again initiate an interrogation of the suspect.

Although the Miranda warnings are etched in nearly everyone’s consciousness, the Supreme Court found that police do not have to use those magical words to get the point across. In a 2010 case out of Florida, the court said as long as the rights are articulated to a suspect in a reasonable manner and the rights are understood, they are sufficient.

GINSBURG’S VIEW

Justice Ruth Bader Ginsburg wrote, “The four warnings Miranda requires are invariable, but this court has not dictated the words in which the essential information must be conveyed.”

Then in 2011, the Supreme Court decided a North Carolina case establishing that law enforcement must consider a suspect’s juvenile status when carrying out the requirements of Miranda. “It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave ... we hold that a child’s age properly informs the Miranda custody analysis,” wrote Justice Sonia Sotomayor.

Although Miranda has been revered for half a century, its evolution may continue for years to come.

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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The Vindicator: Ohio’s death penalty has seen an astonishing evolution

Matthew T. Mangino

The Vindicator

December 13, 2015

The evolution of the death penalty in Ohio is nothing less than astonishing. Five years ago, Ohio was second only to Texas with 10 executions in a single year. This year, Ohio did not carry out a single execution. The state has not executed an inmate since Jan. 16, 2014 when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of drugs being used for the first time in the United States.

Executions are not the only thing plummeting in Ohio. The number of capital murder indictments filed across the state since 2010 has dropped by 77 percent – just 19 capital indictments have been brought this year, reported the Cleveland Plain Dealer.

However, that is not entirely surprising. In Cuyahoga County, which has the second most capital convictions in the state, there is a change in philosophy.

In 2013, Cuyahoga County elected a new prosecutor. Tim McGinty is not only less likely to seek the death penalty but has written to the parole board on behalf of a condemned inmate declaring that under his leadership the office changed its approach to capital punishment.

McGinty alluded to the fact that a life sentence without the possibility of parole is now a sentencing option, though it was not 25 years ago when the inmate was convicted.

Since 2010, the number of inmates sentenced to life without parole has spiked 92 percent, according to the Plain Dealer. The Death Penalty Information Center’s statistics show that the number of inmates sentenced to death nationally has dropped 35 percent since 2010, when there were 114 death sentences. Last year, there were 73.

National trend

The Ohio numbers mirror a national trend involving the death penalty. Even though an October Gallup Poll showed that 61 percent of the public still supports the death penalty, executions are at a 25-year low.

America’s last execution occurred Tuesday night in Georgia. It was the 28th execution this year, nearly half the number carried out in 2009. The number of executions this year is almost the same as the number of fatalities from lightning strikes – 26 deaths by lightning.

It is an ironic statistic, as pointed out by National Public Radio, when the Supreme Court briefly banned the death penalty in 1972. Justice Potter Stewart, a former Ohioan, wrote “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

The death penalty returned in 1976, and by the 1990s the number of executions soared – hitting a high of 98 in 1999 and ultimately totaling more than 1,400 – but executions tailed off dramatically after 2000.

The death penalty has been under siege. A number of states – Connecticut, Illinois, Maryland, New Jersey, New Mexico, New York and Nebraska – have recently abandoned capital punishment. The governors of four other states – Colorado, Oregon, Pennsylvania and Washington – have imposed execution moratoriums.

New Hampshire abolished the death penalty this year only to have the state’s governor rally to have the matter placed on the ballot for voter consideration next year. If that is not strange enough, as lethal injection drugs become more and more scarce, some states are looking for alternatives to lethal injection. Utah is considering bringing back the firing squad. Oklahoma allows for the use of a firing squad if lethal injection is unavailable.

Missouri is considering the gas chamber, and the electric chair is still available in eight states and has been used recently in Virginia and Florida. Pennsylvania apparently has an ample supply of execution drugs, although the state hasn’t involuntarily executed an inmate in over 50 years.

Tumultuous procedure

Ohio’s execution procedure has been tumultuous. The state has used a three-drug, single-drug and two-drug protocol within the last half dozen years to carry out lethal injection – some with questionable outcomes. Ohio continues to strive for a lethal injection protocol that is painless, effective and efficient – good luck.

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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