Woman's public rape reminiscent of the Kitty Genovese murder

 A a woman was being raped while on a train near Philadelphia last week, riders watched, failed to intervene and did not call 911, reported The New York Times.

Reminiscent of the 1964 killing of Kitty Genovese. She murdered in the Queens borough of New York while as many as 38 people looked on or heard the murder.  The inaction spawning the "bystander effect' or what was also referred to as the "Genovese Syndrome." The New York Times later retracted some of the reporting and admitted to sensationalizing the reporting.

In last week's case a man whom officials identified as Fiston Ngoy sat down next to a woman at about 10 p.m. on a train that was traveling westbound on the Market-Frankford Line toward the 69th Street Transportation Center. Mr. Ngoy “attempted to touch her a few times,” said Andrew Busch, a spokesman for the Southeastern Pennsylvania Transportation Authority, known as SEPTA.

The woman pushed back and tried to stop Mr. Ngoy from touching her, Mr. Busch said. “Then, unfortunately, he proceeded to rip her clothes off,” Mr. Busch said on Sunday.

The assault lasted about eight minutes, and no passengers in the train car intervened, the authorities said.

“I’m appalled by those who did nothing to help this woman,” Timothy Bernhardt, the superintendent of the Upper Darby Township Police Department, said on Sunday. “Anybody that was on that train has to look in the mirror and ask why they didn’t intervene or why they didn’t do something.”

Several passengers were in the train car but Mr. Bernhardt declined to say how many; investigators were still working to determine the exact number, he said. While there were not “dozens of people” in the car at the time, Mr. Bernhardt said, there were enough that, “collectively, they could have gotten together and done something.”

Bystanders on the train who failed to intervene could be criminally charged if they recorded the attack, Mr. Bernhardt said, adding that it would be up to the Delaware County district attorney’s office to make such a decision after the police finish their investigation and submit their findings.

Alexis Piquero, a criminologist at the University of Miami, said there are several possible reasons that some crime witnesses do not intervene, such as fear of retaliation by the perpetrator and a belief that someone else will step in and help.

“The onus is really on us as a collective because we can’t always rely on the police,” he said. “We have to rely on one another.”

By expecting someone else to help, “we’re basically washing our hands and absolving ourselves of that responsibility,” he added.

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What if the impeachment trial were conducted as a criminal prosecution?

Stuart Gasner, of counsel at Keker, Van Nest & Peters, took a look at impeachment as a criminal proceeding for The National Law Journal:
Now that an impeachment trial in the Senate is imminent, what would it look like if Chief Justice John Roberts conducted it like a federal criminal trial with a properly instructed jury? It won’t be, of course, but you can bet that politicians on both sides of the aisle will be talking about what is and isn’t hearsay, how to determine intent, the significance of circumstantial evidence, what to make of missing witnesses, and generally, what evidence is reliable.

While the Senate trial will definitely not be governed by the Federal Rules of Evidence, it’s worth looking at them if only to see what guidance they provide. They are, after all, the product of many years of common law and statutory revision and exist “to the end of ascertaining the truth and securing a just determination.” Likewise with typical jury instructions used in federal court. So, let’s take a quick spin through the rules and standard instructions and clear up a few things.

First of all, practically all of what was described as “hearsay” in the House hearings is no such thing. Orders, commands and instructions—such as many of the text messages among Ambassador Gordon Sondland and other officials in the Ukraine saga—are often considered to be “verbal acts” that have legal significance regardless of their truth or falsity and are not hearsay at all. Most of the key emails and text messages would also be admissible to prove the recipient’s understanding or the sender’s state of mind. More broadly, many, if not all, of the communications between and among the central players would independently be admissible under the co-conspirator hearsay exception. Sen. Lindsey Graham, R-South Carolina, can come up with all the ridiculous analogies he wants—by the way, when has anyone ever been “convicted” of a parking ticket?—but the fact remains that virtually none of the key statements that emerged in the House impeachment inquiry would likely be excluded from a federal criminal trial as inadmissible hearsay.

Nor would it be significant in a real trial whether there was “direct” evidence of the president’s intent. Every federal circuit that issues pattern jury instructions makes it clear that circumstantial evidence is just as good as direct evidence. Courts often remark that direct evidence of intent is rarely available and intent is “generally proved with circumstantial evidence.” And most prosecutors would have a field day on the issue of intent based solely on the reconstructed memo of the president’s call with the Ukrainian president.

Would the president’s lawyers be allowed to argue in a real trial that his request for Ukraine to open an investigation into former Vice President Joe Biden and his son was motivated by a desire to root out corruption? Maybe in an opening statement. But they’d have to come up with some evidence during the trial in order to get a “theory of the defense” instruction. And such a defense would open the door to the prosecution showing the absence of other anti-corruption efforts by the president and his administration. There would also be a big fight over whether he could call the former vice president or his son as witnesses, with many federal judges likely hesitant to have a mini-trial over Burisma and Barack Obama-era foreign policy, especially where the real issue is the president’s motivation in asking for the investigation and his pre-existing factual basis, rather than the merits of the Biden allegations.

Would Roberts give a missing witness instruction if John Bolton, Mick Mulvaney and others failed to appear at our hypothetical trial under the Federal Rules of Evidence? Possibly. While this instruction is disfavored in many jurisdictions, the facts here would lend themselves to its application. A missing witness instruction is sometimes available where the absent witness “would have been able to provide relevant, noncumulative testimony on an issue in the case” and “the witness was peculiarly in the other party’s power to produce.” This rule has particular application where the missing witness “has such a relationship with one party as to effectively make her unavailable to the opposing party.” With the Senate in Republican hands and a clear record that the president has blocked key witnesses from testifying, many judges would likely exercise their discretion to allow an inference that the missing witness’s testimony would have been unfavorable to the president. In any event, evidence about the president’s blocking those witnesses from testifying—along with disregarding various congressional subpoenas—would surely be admissible in a criminal trial for obstruction of Congress.

Is the Senate trial going to look anything like a federal criminal trial? Of course not. But maybe we can hope that the senators, especially the lawyers among them, will think a bit about their actual experience in court before making claims about “hearsay,” “evidence” and other facets of trials where there are actually rules. After all, 10 senators in the 116th Congress are former prosecutors, 47 list the law as their professional occupation, and 53 hold law degrees.

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WashPo: The Senate has conducted 15 impeachment trials. It heard witnesses in every one

President Trump’s allies in the Senate want to move forward to an impeachment trial without a commitment to calling witnesses, reports the Washington Post. They insinuate that precedent is on their side, but they’re wrong.

The Senate has heard testimony from witnesses at every trial it has completed in its 231-year history. If the current Senate takes seriously its constitutional responsibility to conduct an impeachment trial of Trump and the oath its members will take to “do impartial justice,” then it must not depart from this unambiguous body of precedent. It must hear from witnesses to the president’s misconduct.

Only 19 other individuals besides Trump have been impeached by the House of Representatives. The Senate completed a trial in 15 of those cases, and in every single one of them, it heard testimony from witnesses. Those cases include the only two prior instances in which a president was impeached. At the impeachment trial of Bill Clinton, the Senate permitted House managers to obtain trial depositions of three witnesses — Monica Lewinsky, Clinton confidant Vernon Jordan and White House aide Sidney Blumenthal — and the full Senate viewed video excerpts of those depositions. At 

The Senate has obtained testimony from a large number of witnesses in every impeachment trial conducted in the last 50 years: 21 in the 1986 trial of Judge Harry Claiborne; 55 in the 1989 trial of Judge Alcee L. Hastings; 10 in the 1989 trial of Judge Walter Nixon, and 26 in the 2010 trial of Judge Thomas Porteous. Although at least one senator has suggested that the Senate has no duty to go beyond testimony obtained by the House, that has happened on multiple occasions. The Senate heard from seven witnesses at Walter Nixon’s trial who had not testified before the House; three at Clinton’s trial who also had not testified before the House; and 17 at Porteous’s trial who had not testified before the House.

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GateHouse: Will woman’s testimony be used to prosecute her alleged killer?

Matthew T. Mangino

GateHouse Media

March 23, 2018

Judy Malinowski may testify at the trial of her alleged killer. Her murder resulted from an attack outside a gas station near Columbus, Ohio, in 2015.

Police said they received multiple reports that a woman was on fire in a parking lot. Witnesses say Malinowski and her boyfriend, Michael Slager, were arguing. Slager appeared to douse Malinowski with gasoline and then lit a cigarette causing Malinowski to burst into flames.

Upon arrival, police found Malinowski unable to speak, suffering from severe burns. Her body was covered in powdered chemical residue from a fire extinguisher.

Malinowski did not immediately succumb to her injuries. Instead, she survived about 700 days with third and fourth degree burns over 80 percent of her body. She endured 52 surgeries and nearly two years in a hospital. She died in January 2017 leaving behind two young daughters.

She left something else behind as well. She left behind her testimony, under oath and subject to cross-examination to be used at Slager’s trial for murder.

Although Malinowski was preparing to testify by video during Slager’s trial for assault and arson, Slager short-circuited that plan when he entered a no-contest plea to felonious assault and aggravated arson. A judge sentenced Slager to a maximum 11 years in prison.

Malinowski wasn’t through and neither was Franklin County prosecutor Ron O’Brien. O’Brien sought permission to perpetuate Malinowski’s testimony. Her condition was not improving and her death was imminent.

The Sixth Amendment to the United State Constitution requires that an individual charged with a crime have the opportunity to confront the witnesses against him.

Confrontation means the opportunity to cross-examine witnesses. In our adversarial system cases are decided by juries or judges who have to make decisions about the credibility or believability of witnesses. The best way to make that evaluation is to test the memory and veracity of witnesses.

In Malinowski’s case there was no charge of murder because she was still alive. However, when she died the state could go back and charge Slager with murder even though he already pleaded guilty to a crime involving the same conduct.

The Double Jeopardy clause of the Fifth Amendment only protects defendants from twice being tired for the same offense. Although the conduct that brought about her injuries was the same conduct that brought about her death, the elements of each crime are different.

In 2004, the United States Supreme Court decided Crawford v. Washington which has had a significant impact on the admissibility of victim statements in court proceedings when the victim is unavailable or unwilling to testify. In Crawford, the suspect was arrested and tried for assault and attempted murder of his wife.

The victim refused to testify. The prosecution attempted to use statements that she made to officers after her husband was arrested. The Supreme Court held that the Confrontation Clause bars the government from introducing statements at trial against a person without calling the maker of the statement, and providing the defendant the opportunity to cross examine the that person.

Here is where Slager’s case is different. Slager’s attorney had the opportunity to cross-examine Malinowski while Slager watched the deposition on close-circuit television. Slager had the opportunity to confront his accuser.

An Ohio judge will soon decide if Malinowski’s testimony can be used at the trial of the man accused of murdering her. The stakes are high. Prosecutor O’Brien is seeking the death penalty. Although Malinowski’s testimony meets the standards of the Confrontation Clause, there were no charges pending against Slager when the deposition was taken.

Regardless of the outcome, Malinowski’s legacy of courage is clear. Her tenacity to stand-up to her killer is unprecedented. The Ohio legislature has acknowledged as much, her ordeal is the impetus for Ohio’s “Judy’s Law,” which increases penalties for those who maim and disfigure their victims. 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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Locking up crime victims as material witnesses, again victimizing the victim

Sarah Stillman is a staff writer at The New Yorker writes a compelling story about the arrest and jailing of innocent material witnesses. Here is a sample of her provocative article:

In New Orleans, Renata Singleton called the cops after her then boyfriend, in a jealous fit, grabbed her cell phone and smashed it; she’d feared for her safety.

As trial rolled around for her ex-boyfriend, Singleton the victim, was put in jail as a material witness. She was locked up for a week although she had three small kids, ties to the community, and a job.

On the day of trial she showed up ready to testify, only to learn that her ex-boyfriend had already pleaded guilty, avoiding jail time altogether.

According to Stillman, “Her testimony wasn’t needed after all. He’d agreed to a six-month suspended sentence, with one year of inactive probation. “I was so violated, so upset and hurt that I had to sit in jail,” Singleton told me. “So, when I found out he took a plea and didn’t have to do anything, I was, like, ‘Are you serious . . . I wish I could have had that deal.”

The right to jail these so-called material witnesses has deep roots in America. (A material witness is an individual considered vital to a case, often because he or she saw a crime unfold or was its victim.) As early as 1789, the Judiciary Act codified the duty of witnesses to appear before the court and testify. From a public-safety perspective, the statute has a clear purpose: the perpetrator of a crime should not escape punishment because of a witness’s reluctance to testify. “The duty to disclose knowledge of crime rests upon all citizens,” a 1953 U.S. Supreme Court opinion, in the case Stein v. New York, reads. “It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.” 

In 1984, Congress reaffirmed the right to jail material witnesses, but also noted that their testimony should be secured by deposition, rather than imprisonment, “whenever possible.” Jailing crime survivors and innocent witnesses, in other words, was legal but undesirable.

After the attacks of September 11, 2001, Attorney General John Ashcroft identified the material-witness statute as a convenient weapon for the war on terror. Federal agents could use it to detain individuals of interest, even without sufficient evidence to arrest them as criminal defendants, by deeming them “witnesses” to terrorism-related crimes. In late 2001, the Department of Justice used material-witness laws to target Muslims, often arresting them at gunpoint and later placing some in solitary confinement. According to Human Rights Watch, the U.S. government eventually apologized to at least thirteen people for wrongful detention as material witnesses, and released dozens more without charges. 

“Holding as ‘witnesses’ people who are in fact suspects sets a disturbing precedent for future use of this extraordinary government power to deprive citizens and others of their liberty,” Human Rights Watch argued. In the face of lawsuits and public scrutiny, the practice slowed.

Recently, however, controversy over the use of material-witness statutes has resurfaced—this time at the state and local level.

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