Book Review: Barbara Bradley Hagerty--Bringing Ben Home: A murder, a conviction, and the fight to redeem American justice

Bringing Ben Home: A murder, a conviction,
and the fight to redeem American justice

Barbara Bradley Hagerty

Riverhead Books, p. 443

Review by Matthew T. Mangino 

            Ben Spencer was convicted in 1987 of the carjacking and murder of Jeffrey Young. “Bringing Ben Home: A murder, a conviction, and the fight to redeem American justice,” is Ben’s compelling journey through a “broken” criminal justice system, told by Barbara Bradley Hagerty.

            Hagerty was a correspondent for NPR for 18 years.  She received numerous awards for her on air reporting and has met with success as a writer as well. 

            Bringing Ben Home was an ambitious project and Hagerty pulled it off. She not only meticulously brought Ben Spencer’s harrowing story to life; she was able analyze the growing problems in the criminal justice system which makes justice for some out of reach.

            Bradley examines the unlikely phenomenon of people pleading guilty to crimes they did not commit. She acknowledges that Spencer never confessed to the crime, but she deftly weaves this important issue into her story.

            A startling one in five innocent people charged with murder confessed.  Whether it’s investigators lying to suspects about evidence—condoned by the U.S. Supreme Court or its a prolonged interrogation of a juvenile or intellectually disabled suspect—innocent people confess to crimes they did not commit.

            After Spencer’s first trial his conviction was overturned on appeal. Bradley examined a plea offer that was made to Spencer of 20 years with the likelihood of being released in three years.  Spencer refused the offer “I didn’t do anything” was his response.

            Unfortunately, in today’s criminal justice system, innocent people plead guilty all the time.  Whether the risk of losing at trial is too great because of the Defendant’s prior record—which enhances sentences, or the so-called trial penalty which punishes people more harshly if they go to trial—innocent people plead guilty to avoid trial.

            The politics of criminal justice can at times be shocking. Prosecutors who refuse to give up on obviously bad cases.  In most states prosecutors are elected and letting a “convicted killer” off doesn’t bode well on election day.

            Bradley tells the story of Bill Clinton, who as a candidate for President in 1992, returned to his native Arkansas to oversee the execution of a mentally disabled black man.

            Bradley examined how some staples of forensic evidence like bite marks and microscopic hair evidence have been debunked.  For instance, Bradley pointed out the FBI concluded that with regard to hair analysis “its experts had provided scenically invalid testimony in 96 percent of cases.”

            How do we now know that widely accepted forensic analysis is now junk science? As Bradley put it, “The double helix has sparked a revolution.”

            DNA has exposed the errors of our way.  As Bradley suggested “DNA jump-started the innocence revolution.” But, as with Ben Spencer, DNA is not present in every case.  However, as Bradley’s story makes clear even in the cases without DNA, there are still mistaken identifications, police misconduct and band forensics.

            It is difficult to imagine that an innocent man who spent 34 years in prison is lucky, but Ben Spencer was the luckiest of the unlucky. Bradley examines in detail the group of advocates and lawyers who took up Spencer’s cause and fought tirelessly for justice. Many men and women sit in prison with no one to give them a voice, and opportunity for vindication.

            On top of that, even with a team working on your behalf you need even more than luck. “[O]verturning a wrongful conviction, even with DNA evidence, is extremely difficult . . . [without it] it’s so much harder,” Rebecca Brown of the Innocent Project told Bradley.  She goes on to say, “It comes down to, really, serendipity. . . We should not be having to depend on luck.”

            Bradley takes on the criminal justice system -- whether its big pictures issues like flawed forensic evidence, the trial penalty, habeas corpus or politics – or the private anguish of a single person wrongfully convicted of a crime – Bradley paints a vivid and troubling portrait of America’s criminal justice system.

(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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Book Review: Shielded How the Police Become Untouchable

Shielded 

How the Police Become Untouchable

By: Jonna Schwartz

Viking (2023)

Reviewed for Champion Magazine

by Matthew T. Mangino       

              Professor Joanna Schwartz brings the U.S. Constitution and the U.S Supreme Court’s interpretation of it, to life in “Shielded: How the Police Became Untouchable.” Through a series of stories that Schwartz warns, “you are unlikely to have heard of  . . .” she provides a handy primer on constitutional law.

            If you’re a Supreme Court junkie, you have come to the right place. Schwartz deftly burrows through high court decisions—simplifying the legalese and adding context. She provides readers with a view of the system from 30,000 feet.

            Schwartz’s most important contribution in Shielded is her examination of qualified immunity. Most readers would be surprised to learn that the U.S. Supreme Court created qualified immunity “out of thin air.”

            Although “Shielded: How the Police Became Untouchable,” published in 2023 by Viking, expands on a problem plaguing the criminal justice system right here and right now, its origins can be traced to the postbellum south.

            Qualified immunity grew out of reconstruction-era laws.  The Civil Rights Act of 1871 known at the time as the Ku Klux Klan Act –better known today as Section 1983, permitted people to sue in federal court if their constitutional rights were violated by the government or someone acting under color of law. As Schwartz noted, “Section 1983 was enacted to provide some measure of justice and accountability in the court for people whose rights have been violated.”

            The author points out; in 1967 the U.S. Supreme Court granted Mississippi police officers immunity under Section 1983 when acting in good faith.  Then in 1982, the court ruled that police should be granted immunity as long as they didn’t violate “clearly established law.” What did that mean? The court didn’t say.

            Schwartz wrote that while the court didn’t define the decision over the next 40 years, the Supreme Court “created a standard that seems virtually impossible to meet.”

            Shielded paints a vivid picture of a wide spectrum of people who have been harmed by the police and then harmed again by the courts.  Schwartz points out how easy it would have been to apply qualified immunity to the suit filed by George Floyd’s family, but for the national furor that arose out of Derek Chauvin’s murderous conduct.

            The stories of Onree Norris, James Monroe, Alonzo Grant and Tony Timpa, to name a few, paint a picture of a system that does everything it can to foreclose police accountability.

            What Schwartz does that is different is she not only points out the problems she offers solutions.  Schwartz, a professor of law at UCLA, has the bona fides to suggest ways to ease the endless pain of qualified immunity.

            One suggestion is, just as the Supreme Court invented qualified immunity out of whole cloth they could undo it just the same.  Even with a Court that does not seem beholden to stare decisis, it’s unlikely this right-leaning court would go in that direction.

            Second, she suggests making police officers who are found liable for violating a person’s constitutional rights pay a portion of any verdict against a police department or municipality. 

            In addition, she suggested that more cities pass initiatives to have unarmed people respond to those having a mental health crisis. I’d take it a step further; many of these tragic police encounters are traffic-related. How about creating a traffic force, that isn’t doing anything more than providing traffic citations.  No high speed chases, no vehicle searches, no immigration investigations—just a traffic ticket and you’re on your way.

            “Shielded: How the Police Became Untouchable” provides an easy-to-read history of the evolving treatment of the Bill of Rights by the U.S. Supreme Court. Schwartz’s book is filled with explanations of important decisions of the high court.  However, the reader doesn’t feel as though they’re slogging through a series of law school lectures.  Professor Schwartz’s writing is sharp, her examples are vivid and her conclusions are thought provoking.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. in New Castle, PA.   He is the author of The Executioner’s Toll and a columnist for Creator Syndicate. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com)

Book Review: Still Doing Life, 22 Lifers, 25 Years Later, Photographs and Interviews of People Serving Life Sentences in Prison Separated by a Quarter Century

Champion Magazine
Authors: Howard Zehr and Barb Toews 
The New Press, 2022, 189 pages
Reviewer: Matthew T. Mangino         

            “Life without parole is a death sentence without an execution date,” Aaron Fox told Howard  Zehr in the early 1990s.  At the time, Fox was serving life without parole in a Pennsylvania state prison.

            In 2017, twenty-five years later, Zehr and Barb Toews visited with Fox again.  In their book “Still Doing Life, 22 Lifers, 25 Years Later, Photographs and Interviews of People Serving Life Sentences in Prison Separated by a Quarter Century,” published by The New Press,  Zehr and Toews not only interviewed Fox 25 years later, they interviewed 21 other lifers, then and now.

            Zehr is a distinguished professor at Eastern Mennonite University and Toews is an associate professor at the University of Washington Tacoma. Their book immediately caught my eye because of the home of the lifers—Pennsylvania. I served two terms as district attorney of Lawrence County, Pennsylvania, a rustbelt community north of Pittsburgh, and followed that with a six-year term on the Pennsylvania Parole Board. Zehr and Toews’ book is both fascinating and sad.  The book provides insight into what would seem a hopeless existence and how these men and women manage to keep the faith, the humanity and the respect for themselves and others with whom they touch.

             In Pennsylvania, a conviction for First or Second Degree murder is a mandatory sentence of life in prison without the opportunity for parole. Simply put, in Pennsylvania, life means life.

            Second to only Florida, Pennsylvania has more lifers than any other state. Even more troubling, Pennsylvania leads the nation in offenders serving life who committed the underlining offense as a juvenile.

            What grabbed me when I first picked up “Still Doing Life” are the photographs of the 22 people interviewed by Zehr and Toews. There are two photographs of each person. The first in street clothes and the second, twenty-five years later—in a similar pose, wearing prison garb.

            Bruce Bainbridge explains why, “When we had to get rid of the civilian cloths due to a policy change in 1995, it was depressing for me because I had to throw away my identity.  That’s one of the biggest things that gave me character.” He went on to say, “I didn’t want to turn into a prisoner. I still struggle with keeping my humanity. I don’t want to get numb to that.”

            The first interviewee in the book, Kimberly Joynes, reveals a painfully astonishing short-coming in the criminal justice system. “When I was sentenced, my judge literally believed that after seven years it was possible I would be paroled.” Joynes thought, as did the courts, that she would see the Parole Board.  That was not to be. Now she relies on the possibility of clemency from the Board of Pardons.  Unfortunately, prior to Governor Tom Wolf, clemency for a lifer in Pennsylvania was about as rare as Punxsutawney Phil not seeing his shadow.

            Ricardo Mercado told Zehr that “It broke a lot of people here when they [Board of Pardons] changed from majority vote to . . . unanimous.” Politics, not some evidenced-based practice, was the reason behind the change. 

            In 1994, Congressman Tom Ridge was running for governor against then Lt. Governor Mark Singel.  The Lt. Governor serves by statute on the Board of Pardons.  That same year, a majority of the board recommended clemency for Reginald McFadden. 

            McFadden was granted clemency by the governor and committed a series of rapes and murders after his release. Ridge used McFadden’s clemency against Singel and got elected.  Once Ridge took office, he called a special legislative session on crime and changed, among other things, the board’s clemency recommendation from a majority of the Pardons Board to unanimity for serious violent crimes.

            The pain of a life sentence is no better demonstrated than in the second interview with Kevin Mines.  Kevin shared with Zehr and Toews when he called a niece that he didn’t really know very well and she was reluctant to come to the phone. When she finally did, she told Mines “I don’t know you like that.” The girl’s mom told Mines, “I told her not to talk to strangers.”       

            For decades policymakers have wrestled with holding offenders accountable while still recognizing the dignity of those incarcerated—all the while trying not to be portrayed as soft on crime.

            A small step in the direction of dignity is a movement to drop the dehumanizing label of “inmate” for those who are incarcerated. Cyd Berger, one of eight women interviewed for the book, makes the best argument I’ve heard in support of such a change. She told Zehr and Toews in 2017, “There’s no single description of an inmate because we are people . . . ‘Inmate’ is a word that the prison system gives us, but that’s not who we are.”

            That is exactly what Zehr and Toews do with “Still Doing Life.”  The book humanizes a group of people who society has hidden away and forgotten. Despite the seeming hopelessness that comes with being locked-up forever, Aaron Fox told the authors in 2017, “I have to confess, I’ve been blessed with a good life, even in prison.”

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA.   He is the author of The Executioner’s Toll. 2010. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com)

Champion Book Review: Death on the Doorstep & other stories: A trial lawyer's memoir

Death on the Doorstep & other stories:
A trial lawyer’s memoir
Edward Z. Menkin
Pages 238
Champion Magazine Book Review

Reviewed by Matthew T. Mangino

            Dashiell Hammett had Sam Spade; Raymond Chandler had Phillip Marlow; Ross Macdonald had Lew Archer—Edward Z. Menkin has himself.

            After more than 40 years practicing criminal defense in Syracuse, New York, Menkin has self-published his memoir, “Death on the Doorstep & other stories: A trial lawyer’s memoir.”

            With four decades of experience as a criminal trial attorney, Menkin has a lot to draw on. Menkin also has a PhD in English Literature and has used that training to weave an interesting conglomeration of war stories into and entertaining read.

            The reason I bring up Hammett, Chandler and Macdonald is that, at times, Menkin’s writing has the gritty, smoky, alcohol drenched feel of noir fiction.

            Very early on Menkin hits his readers with “Murder and I have had more than just a passing acquaintance over the years.”  He describes an armed man, high on PCP, wondering the streets as “not selling subscriptions to Better Homes and Garden.”  Menkin quipped, after a “guy and his wife” were arrested for shooting an assailant with his own gun in self-defense, “I must have missed that extra credit class in law school which taught Advance Prosecutorial Thinking.”

            Menkin’s style holds nothing back and he is not ashamed to admit it.  He starts off his memior with “I’m an egoist and I know it.” Menkin shares some of his more entertaining cases with his readers. In all there are 11 stories, most of them a few pages.  The two marquis stories, “Death on the Doorstep” and “Senor Sal’s turn in the barrel” are considerably longer, and make up a majority of the storytelling.

            The author did not shy away from what most practicing attorneys would consider taboo—taking on the court.  He described a judge he was practicing in front of as “He was a smart guy, the smartest judge around, all you had to do was ask him.” This is from a guy who tells his readers very early on, “I’m in love with myself. Always have been.”

            He displays that affection when he tells the story of a judge who attended a presentation by Menkin and said the quote Menkin used was “great.”  He asked Menkin “Who said that?” Menkin replied, “I did.”

            With all his bluster Menkin could also show humility.  In “Death on the Doorstep” Menkin writes in great detail about a case he took on as co-counsel with no fee.  Menkin concludes with, “I’d like to tell you . . .” that he did something really cutting edge to convince the jury, conducted some dramatic cross-examination or presented a mesmerizing closing argument. Instead, he candidly admits, “I could have read the Betty Crocker recipe for orange-glazed chicken with broccoli and mashed potatoes and the jury would have come to the same conclusion.”  Raymond Chandler would have loved that line.

            Criminal defense attorneys need to have a certain swagger, they need to believe in themselves and they need to believe in their clients.  Menkin understands that balance between ego and humility.  Above all, trial attorneys need to be storytellers and Menkin excels at storytelling.

            Menkin’s translation of complicated legal strategy into easy-to-understand terms, often in a salty way, is compelling.   He suggests that jury selection is not just important, “it was the whole case.” Then in his Hammettesque style he describes his ideal juror as a person “of ample girth, comfortable shoes, a sense of humor, and teenage daughters at home.”

            If you’re a fan of courtroom war stories or noir detective fiction “Death on the Doorstep & other stories” is the book for you. 

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. in New Castle, PA.   He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com) 

           

Book Review: The Cadaver King and the Country Dentist by Radley Balko and Tucker Carrington

Matthew T. Mangino reviews The Cadaver King and the Country Dentist: A True Story of Injustice in the American South by Radley Balko and Tucker Carrington

The Champion Magazine
September/October 2020

Criminal trials nationwide often turn on the testimony of experts who opine about everything from insanity to hair samples. Experts, whether eminently qualified Ivy Leaguers or dubious self-promoters out to make a profit, are often held in high esteem. Their presence in court is marked by great deference, their qualifications expounded upon ad nauseam, often unchallenged by overworked and underpaid public defenders.

            The pernicious influence of the expert witness is a modern phenomenon, not because they didn’t exist in courtrooms of the past, but because they were not so easily detected. The advent of DNA has exposed America to the inadequacies of forensic evidence and therewith the expert who either believes the gibberish she utters in court or, all the more appalling, intentionally misleads for profit.

            Washington Post journalist Radley Balko and Tucker Carrington, a law professor at the University of Mississippi have provided a vivid glimpse into the hocus pocus of forensic evidence in the deep south.  Their book, “The Cadaver King and the Country Dentist,” published by PublicAffairs, Hachette Book Group, is set in Mississippi and examines the wrongful convictions of two men, Kennedy Brewer and Levon Brooks, in two separate child murders in the early 1990s.

            The book is not a suspenseful whodunit, but is gut wrenching nonetheless. Balko and Carrington painstakingly examine the faulty work of two so called experts—Steven Hayne and Michael West—who often collaborated, and dominated the Mississippi death investigation system for nearly 20 years.  During those two decades, virtually every homicide in the state of Mississippi included one or both of them as key prosecution witnesses. 

            Hayne began performing autopsies for the state of Mississippi in about 1987.  Within 20 years, according to Balko and Carrington, he was performing more than 1,800 autopsies a year. The National Association of Medical Examiners recommends that medical examiners perform no more than 250 autopsies per year.

            West was an “expert” in bite mark analysis.  The analysis of bite marks is a class of forensics called pattern matching.  As the authors suggest, pattern matching is “entirely subjective.”

            Balko and Carrington have used the egregious conduct of Hayne and West to demonstrate the pervasive misuse of forensic evidence and expert testimony.

            The authors point to studies that have revealed problems with ballistic, handwriting, tire tread, shoe print, hair and fingerprint analysis.  They point to weaknesses in drug-dogs, drug field tests and even Shaken Baby Syndrome. 

            The authors’ research even revealed a study published in 2013 that found crime labs in many states are paid per conviction. 

            Mississippi is by no means the only state to be outed in recent years regarding faulty forensic analysis. In West Virginia, a single crime lab analyst may be responsible for as many as 134 wrongful convictions.

            In 2005, a Tennessee state medical examiner was found guilty of misconduct. Between 2015 and the publication of Balko and Carrington’s book,  there were crime lab controversies in Houston; Austin; Orlando; San Francisco; Broward County, Florida; and with the Ohio, New Jersey and Oregon state police labs.

            The Cadaver King and the Country Dentist is an expose of the often vaunted role of experts in the criminal justice system.  Although the news is replete with stories of exonerations of men and women who have spent countless years behind bars for crimes they did not commit—it is still almost sacrosanct to speak of holding detectives and prosecutors accountable for permitting such injustices.

            Just as this review was being written, Blako wrote a lengthy article in the Washington Post revealing a conviction and death sentence for a defendant almost certainly innocent. Twenty-two-year-old, Toforest Johnson was convicted of murdering William Hardy in Birmingham, Alabama.

            Johnson was partying at a nightclub called Tee’s Place miles away from the crime scene precisely when Hardy was murdered and his lawyers provided 10 witnesses who saw him at the club. 

            Balko has, and continues to, convincingly point out grievous miscarriages of justice but what is missing from Balko and Carrington’s book is the way forward.  How do we stop rogue lab techs, overzealous criminal investigators and ambitious prosecutors from abusing the system? The problems are clear—the solutions are not.

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Book Review: Butterfly in the Rain, The Abduction and Murder of Marion Parker

Author: James L. Neibaur

Rowman & Littefield (2016)

Reviewed by Matthew T. Mangino for

The Champion            

             James L. Neibaur has written prolifically about the motion picture industry and Hollywood.  His first foray into true crime is worthy of the silver screen.  Neibaur’s Butterfly in the Rain, published by Rowman & Littlefield, tells the story of William Edward Hickman, a vain and diabolical egotist who kidnapped and savagely murdered Marion Parker, the 12- year-old daughter of a banking executive.

            Hickman, who was 19 years old, had delusions of grandeur.

            In 1927, he entered an elementary school in Los Angeles, California and asked to take Parker out of school, claiming that her father had been in an accident. Despite seemingly obvious inconsistencies in his story, a member of the school staff—enamored by the suave and well-spoken Hickman—released the child into his custody.

            That night, Marion’s father, Perry Parker, received a telegram from Hickman demanding a meager ransom, even by early twentieth century standards. The payoff ended in a graphic and heart-wrenching exchange between Hickman and Perry Parker.

            Hickman was quickly arrested. His detailed justification for the murder of Parker is chilling—if not evidence of a mental defect.  He said he killed Marion to (1) evade detection; (2) avoid disappointing Marion; and (3) an uncontrollable desire to commit a great crime.

            Neibaur’s narrative is based almost exclusively on newspaper accounts of the murder and investigation. There was no shortage of news account because the sensational nature of the crime and the closely followed trial generated national attention. Neibaur also had access to trial transcripts which he quotes from at length.  The transcripts reveal arguments and testimony that would undoubtedly merit intense scrutiny by modern appellate courts.

            The book is easy to read, and the pace is quick.  Neibaur’s prose can capture a reader’s attention.  There is some repetition which is either to add length to the book or an ill-conceived effort to build on the sensational subject matter.

            Parker’s murder came on the heels of the famed Leopold and Loeb trial and shortly before the infamous Lindbergh kidnapping, lending to the fact that, although riveting, the Parker murder had been lost to history.

            Through the work of Neibaur this tragic story has been introduced to a new generation of true crime readers. The book comes at a time when “stranger danger” has driven lawmakers to enact draconian laws that keeps those who prey on children locked-up for years and in some instances indefinitely.

            Hickman’s attorneys would raise an insanity defense on behalf of their client. Neibaur wrote at one point “It was considered by some that his ploy was to appear like an insane person trying to seem that he was sane.”  Neibaur conceded that the scheme was “a bit convoluted.”

            It would have been interesting to learn more about Hickman’s defense and how it played out in court. The early use of the insanity defense would have provided a unique glimpse into the California legal system in the early twentieth century—unfortunately, that sort of detail was not provided.

            Neibaur had a noticeable bias against Hickman.  Certainly Hickman was not a likeable figure, but Neibaur crossed the line from storyteller to anti-Hickman zealot as the book progressed from murder, to arrest, to trial. Neibaur writes, Hickman “was a frightened, angry, confused, egocentric, petty thief and cold-blooded killer who ended the life of a little girl . . . “ 

            Scientific America wrote of lepidopterists “describing butterflies darting into protective vegetation and scrambling beneath leaves when dark skies, strong breezes and the first raindrops signal an imminent storm.”

            Marion Parker, unlike the butterfly, didn’t recognize the “imminent storm” as it gathered in the form of William Edward Hickman.  We’ll never really know Hickman’s true intentions when he went to pick-up Parker at school, nor his ability to appreciate the difference between right and wrong. However, this long forgotten tragedy deserves our attention and we owe a debt of gratitude to Neibaur for bringing it to us.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. in New Castle, PA. 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)

The Crime Report: Why Can’t We Rein in Police Misconduct? Blame Prohibition

Matthew T. Mangino

The Crime Report

August 31, 2018

Prohibition in America lasted 13 years—until 1933, when President Franklin D. Roosevelt signed a “beer bill” as one of his first acts in office. The Twenty-First Amendment—­the only constitutional amendment ever to reverse an earlier amendment—went into effect by the end of that year.

But the collateral damage of Prohibition still reverberates through the criminal justice system.

Much has been made of the gangland violence that punctuated Prohibition. Mobsters like Al Capone, who made millions during Prohibition, would stop at nothing to corner the bootlegging market.

However, that was only one facet of the violence.

At times, the police were worse than the mob, and the subsequent efforts to curb Prohibition-era police misconduct have also left a lasting impact on the search for accuracy in prosecutions and limits on excessive force by police officers.

That’s the conclusion drawn by Wesley M. Oliver, a professor at Duquesne University School of Law, in his new book, The Prohibition Era and Policing.

His conclusion is especially worth noting as the nation grapples with multiple cases of police misconduct and the failures to hold law enforcement accountable

Oliver quoted the 1931 The Wickersham Report, formally titled “Report on the Enforcement of the Prohibition Laws in the United States,” which blasted law enforcement during the Prohibition era,

Among its key conclusions:

Pressure for lawless enforcement, encouragement of bad methods and agencies of obtaining evidence, and crude methods of investigation and seizures … started a current of adverse opinion. 

Prohibition created “enormous” opportunities for police corruption, Oliver wrote.

While the potential benefit to crooked cops was obvious, over-zealous “honest” officers often took advantage of the zealous enforcement climate created by Prohibition to violate individuals’ privacy, destroy property, or engage in physical violence—all in the name of stamping out alcohol use.

As Oliver points out, police behavior during this era shifted the focus from procedures to ensure accurate criminal trials to preventing police misconduct. The result was the exclusionary rule.

Thirteen days after the Volstead Act made it a federal crime to manufacture or sell alcohol, the U.S. Supreme Court decided Silverthorne Lumbar Co. v. United States. The Court found that the Fourth Amendment prohibits the government from introducing evidence gathered as the result of an unlawful seizure.

The exclusionary rule was not restricted to illegal searches. At the time, police were practitioners of the “third degree”—violence-induced confessions. The term is better known as torture.

Oliver examines the rigidity of a rule that excludes reliable evidence of criminal conduct because of the manner in which it was obtained or, as Justice Cardoza famously said, the result of the watchman’s “blunder.”

By 1939, not only was illegally obtained evidence being excluded but also any evidence discovered as a result of the illegally obtained evidence. The fruit of the poisonous tree, as it became known, was excluded regardless of its reliability.

About the same time, technology began to get in the way of the U.S. Constitution.

As telephones became more and more useful in criminal enterprises, the High Court was forced to consider the privacy rights of individuals. Oliver meticulously maps out a history of the wiretap, highlighting that the Court’s first foray into wiretapping was a failure—a precursor to the modern Court’s struggle with rapidly evolving technology.

In Olmstead v United States, Chief Justice William Howard Taft concluded that the Fourth Amendment only protected tangible things—persons, papers, and effects. Since the police eavesdropped on telephone calls while clinging to a telephone pole outside the house, and not in the house, there was no intrusion and no violation of the Fourth Amendment.

According to Oliver, wiretapping during Prohibition “created such a backlash that communication over wires became more protected than information in sealed envelopes or effects in one’s home.”

So how does Prohibition affect us today? Oliver examines, with clarity and finesse, the Warren Court’s landmark decisions in Mapp v Ohio (exclusionary rule); Terry v Ohio (stop and frisk); and Miranda v Arizona (right to counsel and to be free of interrogation).

Ignoring police misconduct in favor of more reliable evidence of criminal conduct is not an even exchange.

Oliver wrote that “the Supreme Court’s cases are moving toward eliminating the exclusionary rule.”

Certainly Oliver’s examination of the case law would support that conclusion, but ignoring police misconduct in favor of more reliable evidence of criminal conduct is not an even exchange.

As Oliver writes, the late Justice Antonin Scalia suggested in Hudson v Michigan that the exclusionary rule is obsolete because of an “increasing professionalism of police forces, including a new emphasis on police discipline.”

That increase in professionalism is because of the exclusionary rule— not a reason to abolish it.

Oliver’s work is thought-provoking. Accuracy should be the goal of any system of justice, but protecting the public from unlawful police practices—including excessive force—is also a laudable goal.

Matthew T. Mangino, a regular contributor to The Crime Report, served as an elected District Attorney in Pennsylvania and on the state’s Board of Probation and Parole. He is now 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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Book Review: Impartial Justice - The Real Supreme Court Cases that Define the Constitutional Right to a Neutral and Detached Decisionmaker

Matthew T. Mangino
Book Review, Impartial Justice by Eric T. Kasper
The Champion
November, 2016

Impartial Justice is chock full of analysis about what constitutes a neutral, impartial, and unbiased decisionmaker. Part one focuses on juries, part two judges, and part three noncourt settings. Part one and two are of particular interest to the criminal justice practitioner and important in light of recent action by the U.S. Supreme Court.

Kasper invokes Robert H. Jackson, a U.S. Supreme Court justice who took leave from the Court to prosecute war criminals at Nuremburg. Kasper quotes Jackson to bring focus to the fundamental aspect of the book, the “right to fair trial is the right that stands guardian over all other rights.”

In June of this year, the U.S. Supreme Court ruled in Williams v. Pennsylvania that a judge who had “significant, personal involvement” in a case during his previous role as a prosecutor must recuse himself when the case comes before the bench. Former Pennsylvania Supreme Court Chief Justice Ronald Castille refused to recuse himself in a case involving a death row inmate’s appeal where Castille had been in charge of the prosecution years earlier while serving as district attorney. Castille ultimately joined the opinion of the state supreme court, even writing separately to make clear what he thought of the lower court’s ruling. In an opinion laced with withering criticism, Castille suggested the trial court had become “unmoored from its lawful duty.” He accused the defendant’s lawyers of sidestepping procedural rules and “pursuing an obstructionist anti-death penalty agenda.” A defiant Castille talked to the Associated Press before the U.S. Supreme Court argument: “In Pennsylvania, we leave it up to the judge’s personal conscience. … I’ve always been confident that I can be fair and impartial.” The Supreme Court disagreed.

Kasper also explores juror bias. In doing so, he writes about Batson v. Kentucky, the 1986 decision in which the U.S. Supreme Court ruled that race-based discrimination in jury selection was unconstitutional and required lawyers accused of it to provide a nondiscriminatory explanation. The landmark decision in Batson was intended to eliminate racial bias in the use of peremptory challenges in jury selection. “Hopefully, most prosecutors (and lawyers generally) are beyond the crabbed notions of racial stereotypes,” Kasper writes.

The 2016 Supreme Court decision in Foster v. Chatman suggests that Kasper’s conclusion is a bit premature. The high court is still sorting out the parameters of Batson. The Court ruled in favor of a black Georgia death row inmate, Timothy Foster, convicted in 1987 of murdering an elderly white woman. The Court found that prosecutors unlawfully excluded black potential jurors when selecting an all-white jury. Chief Justice Roberts wrote in Foster v. Chatman, “We are left with the firm conviction that the strikes (of two of the African American potential jurors) were motivated in substantial part by discriminatory intent.” Unfortunately, evidence of the sort that surfaced in Foster is rare, and the Batson decision remains easy to evade.

Kapser also spends some time exploring due process under court supervision, in jail, and before parole boards. Those issues are no better understood after Kasper’s treatment, but generally Impartial Justice is timely and informative. As a lawyer and municipal judge, Kasper’s erudite take on timeless issues of fairness and impartiality has limitations, as he writes that “being a lawyer judge does not wipe one clean of any and all biases … or [require one] be ethical enough to be fair and impartial.

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GateHouse: Harper Lee remakes Atticus Finch

          Matthew T. Mangino
          GateHouse Media
          July 24, 2015

Lawyers are often not held in high esteem, unless of course, you need one. “Go Set a Watchman,” the new novel by Harper Lee, has done nothing to improve the image of lawyers.

More than a half century ago, Lee published her first novel, “To Kill a Mockingbird.” “Watchman” is her second. “Mockingbird” introduced adoring fans to Atticus Finch. A small-town Alabama lawyer, Finch has inspired young men and women to pursue careers in the law for decades.

Atticus, as his children Jem and Scout referred to him, was a beacon of integrity in a state “dripping with the words of ‘interposition’ and ‘nullification.’”

Lee won a Pulitzer Prize for “To Kill a Mockingbird” and never released another book until last week when HarperCollins released “Go Set a Watchman.”

Both stories are told through the eyes of Scout — Jean Louise Finch. In “Mockingbird,” Scout is a child of six through nine; in “Watchman” she is an adult of 26.

Although “Watchman” is a sequel to “Mockingbird,” it was written prior to “Mockingbird.” This curious alignment gives rise to some inconsistency. For those familiar with “Mockingbird,” Jean Louise thinks back to her father’s memorable trial at the Maycomb Courthouse. However, Jean Louise’s memory is not the same as ours. The defendant, Tom Robinson, did not have his arm “chopped off,” he was not acquitted and the case did not have overtures of consensual sex between a black man and a white woman.

What Lee does effectively is to bring her readers, through Jean Louise, back to the courtroom where Jean Louise was most proud of Atticus and reveal him not as a stalwart litigator seeking justice, but as an unabashed racist.

Lee also reveals that Atticus — this much revered man of principle and integrity — was a member of the Ku Klux Klan, albeit according to his apprentice, as a means to find out who was under those hoods, “[Y]our daddy did and still does get mighty uncomfortable around folks who cover up their faces.”

Jean Louise, crushed by what she discovers, confronts her father, “I looked up to you, Atticus, like I never looked up to anybody in my life and never will again.”

“Watchman” is the story of a young woman coming to terms with her father, her hometown and her life.

Atticus, who was an effective and competent jurist in “Mockingbird,” is revealed as a lawyer intimidated by the legal prowess of the NAACP and frightened by the changes thrust upon the South by the U.S. Supreme Court decision in Brown v. Board of Education. Atticus tells Jean Louise, “You do not seem to understand that the Negroes are still in their childhood as a people.”

We knew little about Atticus after “Mockingbird,” except that in a single trial he was a stand-up guy in the face of strong community opposition. “Watchman” portrays Atticus as a complicated and layered character — no different than any other man or woman.

Just like others we exalt because of a single battle, a heroic feat, an extraordinary athletic accomplishment or for taking a wrong and making it right, there is more to that person than a single point in time.

Sometimes it’s good, sometimes it’s bad and most often it’s both. The question that “Go Set a Watchman” raises is quite simple: Do we accept the flaws and move forward, or do we let the pangs of disappointment force us to walk away?

Even in the world of make believe nobody is perfect.

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 at @MatthewTMangino.

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Book Review: Dignity Rights: Courts, Constitutions, and the Worth of the Human Person. By Erin Daly

This review by Matthew T. Mangino appeared in the April, 2014 edition of The Champion a national publication of The National Association of Criminal Defense Attorneys.

Erin Daly tells us that law is a practical enterprise that deals with a real problem in real peoples’ lives.  With that as a backdrop, Daly takes off on an ambitious journey to explain the evolution of dignity in American, and the world’s, jurisprudence.  Dignity Rights: Courts, Constitutions, and the Worth of the Human Person is worth the effort.

There was a  “cavalcade” of constitutional dignity rights after World War II. There was no denying that phenomenon as policymakers came to terms with the horrors that occurred in Asia and Europe. In 1948, the Universal Declaration of Human Rights (UDHR) inspired the postwar constitutional drafting.

By the end of World War II the U.S. Constitution had been examined, reviewed, analyzed, interpreted, expanded, restricted, revered and condemned countless times.  With that being said, the U.S. Constitution never mentions dignity.

Maybe that’s why the concept of human dignity has been a late-comer to American jurisprudence.

 Daly, a professor at Widener University Law School wrote, “The influence of World War II on dignity jurisprudence in America is visible, though less pronounced than in some other countries.”

            The U.S. Supreme Court’s first mention of dignity as an individual right is a fleeting reference in Skinner v. Oklahoma in 1942. In a 1945 dissent in U.S. v. Screws, Justice Frank Murphy wrote, “The right was his…because he was a human being. As such he was entitled to all the respect and fair treatment that befits the dignity of man.”

From the mid-twentieth century up through the present, Daly points out that the concept of dignity arose “most clearly in the context of the police state, as defendants and inmates argued forcefully that the investigative, prosecutorial and punitive practices of the government violated their individual dignity.”

In Miranda v. Arizona the Supreme Court wrote of oppressive interrogations as “destructive of human dignity.” In Roper v. Simmons, the court outlawed the execution of juveniles.  The Court wrote, “The basic concept of the Eighth Amendment is nothing less than the dignity of man.”

Although dignity has seeped into high court decisions, Daly writes, “It cannot be denied that the U.S. Supreme Court has so far declined to embrace human dignity with the ardor of its global peers.” In fact, 95 percent of the opinions from the Roberts Court do not mention dignity and half of those that do mention dignity in connection with inchoate ideas.

Daly explains there is more to the story of the U.S. Supreme Court’s inattention to human dignity. The court has sparred over exactly what dignity means and what dignity is.  In a controversy over the right of self-representation at trial, Justice Stephen Breyer wrote that such action “will not ‘affirm the dignity’ of a defendant who lacks the mental capacity” to defend himself.   Daly wrote that Breyer “holds that the state can limit a person’s choice in order to enhance his or her personal dignity.”

Justice Antonin Scalia unabashedly takes another approach.  He wrote, in dissent, in Indiana v. Edwards, “the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the state—the dignity of individual choice.”

Daly reminds us of what Lincoln said more than a century and a half ago, when vital questions are left to the Supreme Court, “People will cease to be their own rulers.”  Daly doesn’t see it that way.

The dichotomy on the court with regard to dignity is a product of conservative and progressive agendas of the respective jurists.  There are fundamental differences as to the state’s role in supporting dignity.

As the role of government in promoting dignity evolves around the world there is no denying that the commitment to democracy is on the rise.  Daly asserts, as democracy spreads a new version of the judicial role it allows the people, their government and courts to work together to develop policy with constitutional values.

Daly suggests that dignity jurisprudence promotes democracy by recognizing that “[E]ach person has one very important, very valuable asset that is inalienable and irreducible and infinite”—dignity.  The concept of dignity also permits democracy to thrive, especially in the middle class.  Judicial pressure on political branches of government can promote worthy causes such as eradicating “extreme poverty.”  Finally, jurisprudence of dignity invites people into public discourse.

Daly wraps the connection of dignity, democracy and jurisprudence into a neat little bow.  Constitutions and courts protect human dignity.  People feel dignity—they are empowered and increasingly participate in politics.  That power forces policymakers to listen.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. in New Castle, Pennsylvania. You can read his blog every day at www.mattmangino.com and follow him on twitter @MatthewTMangino)

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Photojournalist takes a poignant look inside juvenile hall

             Susan Madden Lankford has published, through Human Exposure Publishing, LLC, the third volume of a trilogy that provides a real look at some of society’s most unpleasant circumstances.  Lankford is a photojournalist.  Her piecing photographs lead the reader through a graphic and compelling journey inside the walls of juvenile hall.

Born, Not Raised: Voices from Juvenile Hall is a series of photographs and recorded conversations compiled during visits to juvenile facilities in San Diego and Alpine, California.

Lankford first wrote about woman in prison in Maggots in My Sweet Potatoes: Woman Doing Time.  Then she explored homelessness in downTown U.S.A.: A Personal Journey with the Homeless.  In the third installment, Born, Not Raised, Lankford used photographs to initiate, and elaborate on, conversations with young residents of juvenile hall.  Each juvenile’s hand written explanation of Lankford’s photographs provide a unique insight into the world of broken families and non-existent parents.

In what appears to be a remake of an old photograph depicting a well dressed husband, wife and two infant children in a stroller, Lankford illicted the fallowing caption: “John and Mary are arguing…John personally dont (sic) like Marys (sic) mom.” The caption, by a 15-year-old female, concludes, “He didn’t (sic) get any dinner and ended up sleeping up (sic) on the couch for 2 nights”

A photograph of a boy kicking a soccer ball with an adult male videotaping the boy generated, from a 15-year-old male, the following, “It look (sic) like a boy who is playing with his dad.  That lucky mother fu---r.”

A photograph of a grey haired woman sitting at an outdoor table with a younger woman got this response from a 15-year-old female, “I think she took tis (sic) picture because thats (sic) her family (sic) and I wish I was in that picture.”

Lankford spends a year interacting with judges, psychiatrists and most importantly residents of juvenile hall.  She provides a powerful, yet painful, look at damaged young people who are caught up in the system as they struggle with individual emotional turmoil.  The book can be, at times, difficult to read. 

Lankford concludes that, “[I]nstitutions like juvenile hall are not a good substitute for a family.”  Psychiatrist Diane Campbell said, “The youth in the hall don’t need miracle workers; they simply need some who is “just good enough.”

Lankford makes it clear that “good enough” consists of a reliable, loving and nurturing figure that will help mold a child.  She uses her skills as a writer and photographer to make sure her readers understand the plight of troubled young people and how to turn “at-risk” youths into “at-promise” youths.

Criminologist David M. Kennedy on NPR’s Fresh Air

Earlier this week, Criminologist David M. Kennedy the director of the Center for Crime Prevention and Control at John Jay College of Criminal Justice in New York City had an interesting conversation with Fresh Air contributor Dave Davies, on National Public Radio.

Kennedy has written a new book, Don’t Shoot, which chronicles his work across the country to stop violence in America’s inner cities. Kennedy’s unorthodox approach to stemming violence has been hailed in some quarters as a ‘miracle.”

Operation Ceasefire which was used to slow rampant gang violence in Boston has been called the ‘Boston Miracle.’  Kennedy suggested that a significant majority of violence is committed by, and on, a very small fraction of the population.  He refers to the small minority as the five percent.

Violence in those inner city neighborhoods is terrifying and a part of everyday life for those who work the streets.  Kennedy said, “The national homicide rate is now about 4 per 100,000, but the homicide rate for members of gangs and neighborhood turf groups is dramatically higher: as many as 3,000 per 100,000 a year.”

As Kennedy spent time in these troubled neighborhoods he learned that the inhabitants, even the guys working the streets, didn’t like the life of terror and mayhem.  He said drug dealers and gun toting thieves told him they were terrified and they hated the lifestyle.

What Operation Ceasefire did was to take a three pronged approach to gang violence.  First, law enforcement determined the worst of the worst gangs and groups on Boston’s streets.  They brought members of those gangs and associations to a meeting and told them that they were doing enormous damage to the community.  They then offered them the assistance of the community and social services to go in a different direction.  Finally, they made clear if the criminal conduct continued the wrath of law enforcement would sweep down upon them.

The operation worked and violence decline dramatically in Boston.  There has been a resurgence of violence in Boston and Kennedy attributes it to a lack of commitment.  “This cannot be someone’s pet project.”  The operation must become ingrained in the community.

Kennedy had an interesting spin on the dramatic decline in crime in New York City. I have long argued that the decline in crime in NYC can be attributed to resources.  NYC has long had the largest police force in the country and city leaders threw loads of money at crime control.  Kennedy compared the ‘Broken Window’ theory of crime control, popularized in NYC, as an ‘occupation’ by the police.  Much the same way a triumphant nation in war would occupy a defeated nation.

Kennedy suggested that in time the occupied begin to resent the occupiers.  An army or police department can never win an occupation—things are never stable.  Once the city stops throwing in the resources the city is lost.  

However, Operation Ceasefire is not much different.  If the hammer of law enforcement disappears, or if those resources are reallocated, the first two prongs of Operation Ceasefire become ineffectual as well.  Crime fighting is resource driven.  As many cities bask in the light of lower crime rates, will tighter budgets and less resources mark a resurgence in violent crime?

To read more: http://www.npr.org/2011/11/01/141803766/interrupting-violence-with-the-message-dont-shoot