PA Supreme Court: Expert on interrogations inadmissible for false confessions

On May 28, the Pennsylvania Supreme Court decided in Commonwealth v. Alicia that expert testimony regarding interrogation techniques that could lead to false confessions is inadmissible at trial, reported The Legal Intelligencer.
The decision seems to be diametrically opposed to the court's decision on the same day abandoning its prior holdings banning expert testimony regarding the accuracy of eyewitness identification, finding that the decision of whether to admit such evidence should be left up to the trial court.
Justice McCaffery, writing for the majority in Alicia, said that while the high court had never previously addressed the admissibility of expert testimony concerning false confessions, it has previously rejected other types of defense expert testimony that infringe on a jury's ability to assess a witness' credibility.
"General expert testimony that certain interrogation techniques have the potential to induce false confessions improperly invites the jury to determine that those particular interrogation techniques were used to elicit the confession in question, and hence to conclude that it should not be considered reliable," McCaffery said.
McCaffery acknowledged that the Indiana Supreme Court, the Florida District Court of Appeals and the U.S. Court of Appeals for the Seventh Circuit have all allowed expert testimony on false confessions.
But McCaffery said he found more compelling the U.S. District Court for the Tenth Circuit's rationale for precluding such testimony in the 2010 case United States v. Benally.
Like the Benally court, McCaffery said allowing expert testimony regarding false confessions is "an impermissible invasion of the jury's role as the exclusive arbiter of credibility."
McCaffery added that allowing defendants to submit expert testimony that certain interrogation techniques have a propensity to elicit false confessions would not be constructive because the prosecution would likely counter with its own expert testimony that the same techniques typically elicit true confessions.
"Ultimately, we believe that the matter of whether appellee's confession is false is best left to the jury's common sense and life experience, after proper development of relevant issues related to, inter alia, the particular circumstances surrounding the elicitation of his confession, using the traditional and time-honored techniques of cross-examination and argument," McCaffery said.
In a footnote, McCaffery addressed his support of the Walker ruling (eyewitness identification), saying "the accuracy of an eyewitness identification is a matter readily distinguishable from the veracity of a confession to a crime."
"In assessing the reliability of an eyewitness identification, the issue is generally not whether the victim or witness is telling the truth—the victim or witness is often entirely and honestly convinced, and convincing to the fact-finder, that he or she has correctly identified the true perpetrator," McCaffery said. "The issue is rather whether the witness' identification is indeed accurate."
To read more Click Here

AG investigation of investigation approved by judge

A judge reviewing state Attorney General Kathleen Kane’s investigation of Gov. Tom Corbett's investigation of Jerry Sandusky's child sexual abuse case has approved the report and the document could be released soon, reported the Pittsburgh Tribune-Review.
Kane’s inquiry into why it took Corbett three years to investigate and charge Sandusky needed the judge’s approval because the report contains grand jury testimony, which had expectations of secrecy, according to the Centre Daily Times.
In a meeting  PennLive’s editorial board, which was live-streamed on the Internet, Kane said the report is “nearing completion,” and investigators are dealing with “legalities” they must abide by before the report can be released.
After the report is approved by the judge, those who were interviewed will get a chance to review portions of it. Kane declined to comment about who will get a chance to review the document.  However, it is expected that Gov. Corbett and former assistant attorney general Frank Fina will get to review the report.
Corbett was interviewed last week by the special prosecutor in the case.
Fulfilling an election vow, Kane appointed former federal prosecutor H. Geoffrey Moulton Jr. to probe Corbett’s investigation, which she questioned during her own campaign for attorney general. The issue became a focal point and Kane won in a landslide.
Moulton has since been investigating how previous attorneys general Tom Corbett — who is now governor — and Corbett’s appointed successor, Linda Kelly, handled allegations against Sandusky between 2009 and 2011.
The investigation into Sandusky’s abuse started when a teen, Aaron Fisher, told Clinton County authorities in January 2009 that the former Penn State coach had touched him inappropriately. The case was referred to Centre County’s then-district attorney, Michael Madeira, who referred it to the Attorney General’s Office.
Sandusky was sentenced to at least 30 years in prison and is serving his time in solitary confinement. He maintains his innocence, but has exhausted his appeals to higher courts.
“From the very beginning, I said this report was most important to me and I believe to all of Pennsylvania because it dealt with child sexual abuse,” Kane told PennLive. “To me, making sure our children are protected is the most important thing. If we can do things in a better way, by all means we should look into doing things a better way.”
Kane wouldn’t go into specifics about the report, but she called it factual, fair and complete.
“What is expected from this report is the facts,” she said. “Where we can make a determination we’ll make it, where we can’t, we’ll tell you that as well. At some points it may be left up to the reader to determine what their feeling is, but I can tell you , it’s a very fair and accurate report."
To read more Click Here

Read more here: http://www.centredaily.com/2014/06/03/4207666/judge-approves-kanes-sandusky.html?sp=/99/264/&ihp=1#storylink=cpy

What’s wrong with Ohio’s death penalty? Not a thing

Matthew T. Mangino
The Youngstown Vindicator
June 8, 2014
Ohio’s death penalty is back in the news. Federal Judge Gregory Frost has ordered a 2 1/2-month moratorium on executions to figure out what is wrong with the death penalty. The answer is simple — there is nothing wrong with Ohio’s death penalty.
The temporary order delays executions scheduled for July and August while attorneys prepare arguments over the state’s new lethal- injection procedure. Ohio has led the way in lethal injection. In the last five years, Ohio has used a three-drug protocol, moved to a single- drug protocol and now utilizes a two-drug protocol. Along the way, Ohio has utilized a number of different drugs for executions — at times being the first state to use a new drug.
In January, the execution of Dennis McGuire did not go as planned. The execution that was supposed to last about 10 minutes lasted 25 minutes instead. Last month, in Oklahoma Clayton Lockett’s execution went really bad. In fact, the execution was stopped and Lockett later died of a heart attack.
Penalty rhetoric
Judge Frost has been up to his elbows in death- penalty rhetoric dating back to a “botched” execution in 2009. He has used terms like “human experimentation” when talking about Ohio’s lethal injection protocol and “lip service” when talking about the Department of Rehabilitation and Correction’s policy implementation.
In fact, this isn’t the first time in the last five years that Judge Frost imposed an execution moratorium. With that said, Ohio has been at the forefront of execution policy nationwide.
Only Texas has executed more people than Ohio since 2010. That year, chronicled in my book “The Executioner’s Toll, 2010,” Ohio carried out eight executions all on the heels of Judge Frost’s first moratorium.
Ohio’s death penalty works because executions are being carried out. That is not the case in most states and therein lies the problem. In Pennsylvania, there are approximately 193 men and women on death row and that number grows every year. Only four states have more killers on death row.
However, Pennsylvania has executed only three killers since 1978 and all three volunteered to be executed. Since that time, 24 death- row inmates died of natural causes and three committed suicide. The last person executed in Pennsylvania was Philadelphia serial killer Gary Heidnik in 1999.
Death row
Ohio has 143 men and women on death row. In 2010, when Ohio carried out eight executions, the state added an equal amount of offenders to death row with newly imposed death sentences.
In 1994, the heyday of the modern death penalty, there were 328 men and women sentenced to death nationwide. In 2010, there were far fewer offenders sentenced to death, 112, still more than twice the number executed that year.
As I argued in “The Executioner’s Toll, 2010,” few believe that the 3,100 or so men and women on the nation’s death rows will ultimately face execution.
Let’s say that death-penalty verdicts continue at 2010’s pace of 112 per year for the next 10 years. There would be approximately 4,500 men and women on death row. Let’s say that all 32 states with the death penalty executed one offender a month for the next 10 years — that is not entirely realistic since only eight states have more than 120 offenders on death row — at that frantic, and frankly impossible, pace, death row would still be populated.
Arbitrary
Since the reinstatement of the death penalty in 1976, the likelihood that an offender sentenced to death will ultimately be executed is about 1 in 7. The problem with the death penalty isn’t lethal injection or the electric chair and firing squad as some states are considering; the problem is having a criminal sanction that is sparingly sought, rarely imposed, and the act of carrying it out has become so rare that it appears arbitrary.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
Visit The Vindicator

The Cautionary Instruction: Lawmakers more ambitious with government reduction bill

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 6, 2014
Pennsylvania has one of the largest and most expensive legislatures in the country. The General Assembly’s annual budget exceeds a quarter of a billion dollars. Those dollars go to pay the salary of 253 legislators and about 2,600 staffers.
New Hampshire has the largest legislature in the country with 424 members, but they are part-timers who make about $100 a year, compared with the $84,000 base salary for Pennsylvania lawmakers.
Proposals to reduce the size of the legislature come up in nearly every legislative session. In 2011, there was a proposal to reduce the House from 203 members to 121 and the Senate from 50 to 30 members.
However, this year some senators were not satisfied with just reducing the number of lawmakers.
“There’s also two other branches of government that need to be reduced also, in my opinion,” said Senate President Pro Tempore Joe Scarnati.

This week, a Senate committee passed resolutions to eliminate 55 legislative seats and several appellate judgeships. Even the executive branch of government was not exempt. The proposed legislation would eliminate the position of Lt. Governor. Proposed constitutional amendments to shrink the size of government across the three branches have been sent to the full Senate for consideration.
Scarnati’s plan would reduce the state Supreme Court from seven to five seats and cap the Superior Court at 11 members. Without a Lt. Governor, Scarnati’s plan provides for a special election to replace a governor who leaves office, with the Senate President Pro Tempore filling in.
Scarnati currently holds that position in the senate and filled the Lt. Governor’s office after Lt. Governor Catherine Baker Knoll died in 2008.
Pennsylvania attorneys and political observers expressed shock and disapproval over Senate bills. “I think it caught a lot of us by surprise that the judiciary was included in that mix,” John J. Hare, chair of the appellate advocacy and post-trial practice group at Marshall Dennehey Warner Coleman & Goggin in Philadelphia told The Legal Intelligencer. “I had no idea that they were going to bring the judiciary into this and I think [cutting judgeships] would be really unfortunate.”
Both reduction measures passed unanimously out of committee -- one bill addressed the House, the other addressed the Senate, judiciary, and lieutenant governor.
Senators said their concerns could be debated without slowing down the lengthy process ahead. A constitutional amendment must first pass the General Assembly in two consecutive legislative sessions, and then clear a voter referendum.
Not everyone is enamored with idea of reducing the size of the legislature. Opponents say the dangers include moving access to state lawmakers farther away from constituents, diluting the representation of rural areas, and the overstated cost savings projections.

---

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
Visit Ipso Facto

GateHouse: No one immune from random acts of violence

Matthew T. Mangino
GateHouse News Media
June 6, 2014
Twenty-five years ago, Lawrence Sherman, currently the director of the Cambridge Institute of Criminology at Cambridge University and a distinguished university professor at the University of Maryland’s Department of Criminology, told the New York Times that the risk of being killed by a stray bullet “is increasingly a matter of being in the wrong place at the wrong time.’’

If that includes the breakfast table, a bus, picnic or office building, then anyplace can be the wrong place. Last June, in the state of Washington, a stray bullet killed 23-year-old Allyssa Smith during a family picnic. Smith was at her parents’ home for Father’s Day when a stray bullet fired from a rifle rigged like a machine took her life.

Last year, a 14-year-old girl on a New York City bus, D’Asia Robinson, had just left a friend’s birthday party when she was killed by a stray bullet.

Earlier this year, 5-year-old Payton Benson was killed by a stray bullet as she ate breakfast inside her Omaha, Nebraska, home. Police responded to reports of a hail of gunfire around 9:45 a.m. about a block away from Benson’s home. Police found Benson in her home critically wounded.

Last week, Dr. Betty Howard, a Chicago teacher, was killed when she was struck by a stray bullet. Police said Howard was visiting a real estate office around 5:30 p.m. when she was struck by bullets that pierced the building’s wall.

Stray bullets take a senseless toll on neighborhoods. Yet public health officials know little about the phenomenon. The U.S. Centers for Disease Control and Prevention tracks accidental shootings, but they do not account for harm caused by stray bullets, according to the St. Louis Post-Dispatch.

Several years ago a researcher was not satisfied with the lack of information on the scope and magnitude of harm caused by stray bullets. Dr. Garen Wintemute, a professor of emergency medicine at the University of California-Davis, and fellow researchers, using a single year of media reports of shootings from 2008 and 2009, found stray bullets injured or killed 317 people. According to the Post-Dispatch, more than 80 percent of the victims had no idea they were in danger until they were shot, and 40 percent were at home. One in five died, making stray bullets just as lethal as those bullets that strike their intended targets.

This week, Wintemute told NPR that violence is often thought of as disproportionately affecting young men. The victims of stray bullets, however, are incidental to that violence and tend to be proportionate with the general population. He found that more than 30 percent of the victims of stray bullet shootings are children younger than 14. Males and females were affected about equally.

“[It’s] not the age group that we’re used to thinking about, not the gender that we’re used to thinking about when we think about violence,” Wintemute told NPR.

There are a number of ways that stray bullets injure or kill innocent people. Every year with the arrival of hunting season, there are stories of stray bullets causing harm. Even celebratory gunfire can be lethal — shot into the air a bullet must return to the ground. However, 60 percent of the incidents occurred as the result of intentional gunfire.

Sherman’s 25-year-old research noted that those who live in poor neighborhoods, where a significant number of shootings occur, seemed to be at greater risk. In Chicago, outside a school building with “Don’t Shoot” stickers plastered to the walls, the principal, Sherryl Moore-Ollie, recently told the Chicago Tribune when asked about her students’ reaction to violence, “They’ve been desensitized … [t]hey hear shooting every day.”

Unfortunately, some of those bullets go astray, and every one of those students is the potential object of a random act of violence.

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

Prison max-outs compromise public safety

A nationwide study by Pew Charitable Trusts finds that 21 percent of Pennsylvania inmates serve there maximum sentence and are often release back into the community without any supervision. Across the county more than 1 in 5 state inmates maxed out their prison terms and were released to their communities without any supervision in 2012, undermining efforts to reduce reoffending rates and improve public safety.
A wide range of laws and policies adopted in the 1980s and ’90s has resulted in a sharp increase in the rate at which inmates serve their full sentences behind bars, leaving no time at the end for parole or probation agencies to monitor their whereabouts and activities or help them transition back into society by providing substance abuse, mental health, or other intervention programs.
“There’s a broad consensus that public safety is best served when offenders have a period of supervision and services when they leave prison,” said Adam Gelb, director of Pew’s public safety performance project. “Yet the trend is toward releasing more and more inmates without any supervision or services whatsoever. Carving out a supervision period from the prison sentence can cut crime and corrections costs.”
Key findings of the report, Max Out: The Rise in Prison Inmates Released Without Supervision, include:

• Between 1990 and 2012, the number of inmates who maxed out their sentences in prison grew 119 percent, from fewer than 50,000 to more than 100,000.
• The max-out rate, the proportion of prisoners released without receiving supervision, was more than 1 in 5, or 22 percent of all releases, in 2012.
• Max-out rates vary widely by state: In Arkansas, California, Louisiana, Michigan, Missouri, Oregon, New Hampshire, and Wisconsin, fewer than 10 percent of inmates were released without supervision in 2012. More than 40 percent of inmates maxed out their prison terms and left without supervision in Florida, Maine, Massachusetts, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, and Utah.
• Nonviolent offenders are driving the increase. In a subset of states with data available by offense type, 20 and 25 percent of drug and property offenders, respectively, were released without supervision in 2000, but those figures grew to 31 and 32 percent, or nearly 1 in 3, in 2011.

Click here for the Full Report

U.S. Supreme Court Remands Excessive-Force Case

Matthew T. Mangino
The Pennsylvania Law Weekly
June 2, 2014
Last month, the U.S. Supreme Court vacated a decision of the U.S. Court of Appeals for the Fifth Circuit. The high court sent the case back, instructing the appeals court to give consideration to the court's recent decision in Tolan v. Cotton, 572 U. S. ___ (2014).
The Tolan decision was only two weeks old when the Supreme Court, on May 19, remanded Thomas v. Nugent, No.13-862. Both Tolan and Thomas were out of the Fifth Circuit and dealt with allegations of excessive force by police—one involving a shooting, the other a tasing.
In Tolan, the Supreme Court said the Fifth Circuit had not given proper weight to evidence offered by Robert Tolan, who sued police after being shot.
In 2008, Jeffrey Cotton, a Texas police officer, shot Tolan in front of Tolan's parents' home. Cotton was under the mistaken belief, due to a clerical error by another officer, that Tolan and another man had stolen a vehicle.
Tolan sued Cotton in federal district court, alleging excessive force in violation of the Fourth Amendment. Cotton filed a motion for summary judgment and argued that he was entitled to qualified immunity. Qualified immunity protects government officials from being sued when their conduct has not violated a clearly established constitutional right.
The district court ruled in favor of Cotton, finding his use of force was not unreasonable and did not violate the Fourth Amendment.
The Fifth Circuit affirmed the lower court decision. The appeals court held that Cotton was entitled to qualified immunity regardless of whether he violated the Fourth Amendment because he did not violate a "clearly established" right.
In support of its ruling, the court cited evidence that would lead a reasonable officer in Cotton's position to believe that Tolan presented an immediate threat to his safety.
For qualified immunity to attach, an official must demonstrate his conduct was objectively reasonable, as in Harlow v. Fitzgerald, 457 U.S. 800 (1982).
In a per curiam opinion, the Supreme Court held that the Fifth Circuit erred in its application of summary judgment. The Supreme Court said the Fifth Circuit improperly sided with the account offered by the police officer. A judge, when deciding an issue raised through a motion for summary judgment, must view the evidence in a light most favorable to the nonmoving party—in this case, the alleged victim of excessive force.
The court vacated the judgment and remanded the case to the Fifth Circuit with instructions to acknowledge and credit evidence in Tolan's favor when determining whether Cotton's actions violated clearly established law.
Two weeks later, when faced with a similar issue in Thomas, the court relied on Tolan to resolve the issue.
The second decision also dates back to 2008, this time in Louisiana. The police arrested a man named Baron Pikes. During his arrest, Pikes was tasered at least eight times. Later, at the police station, Pikes fell ill. He later died.
The officer who repeatedly tasered Pikes, Scott Nugent, was fired and charged with manslaughter. He was found not guilty, but the family of Pikes, namely Latrina D. Thomas, sued Nugent in federal court for excessive force.
Nugent's lawyer argued, as did the police in the Tolan case, that the lawsuit be dismissed because Nugent was acting in his official capacity as a police officer and was entitled to qualified immunity. The trial judge disagreed and allowed the case to move forward to trial. The Fifth Circuit reversed the trial court.
The Fifth Circuit found that lawyers for Pikes' family had failed to prove that repeatedly tasing a restrained suspect in police custody for failing to comply with a police command violated the Fourth Amendment to the U.S. Constitution.
With the Thomas case heading back to the Fifth Circuit for a review of the facts in a light most favorable to the plaintiff, it is worth looking at the law with regard to excessive force—particularly force involving the use of a Taser.
In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court identified three factors that courts must weigh when determining whether law enforcement personnel have used excessive force: "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest."
At least five circuits have found, under certain circumstances, using a Taser on an individual no longer resisting is excessive force. In the Fourth Circuit, repeatedly tasing "an individual who no longer is armed, has been brought to the ground and is no longer actively resisting arrest" constitutes excessive force, per Meyers v. Baltimore County, 713 F.3d 723 (4th Cir. 2013).
The Sixth Circuit held that a policeman used excessive force when he tasered a handcuffed individual a single time, even though the individual was yelling profanities at the officer. The court held that it is "unreasonable to use significant force on a restrained subject even if some level of passive resistance is presented," in Wells v. City of Dearborn Heights, 538 Fed. Appx 631 (6th Cir. 2013).
In Cyrus v. Town of Mukwonago, 624 F.3d 856, 862-63 (7th Cir. 2010), the Seventh Circuit denied summary judgment on a claim of excessive force against officers that repeatedly tasered an individual who did not release his hands for handcuffing.
On the other hand, more than a few circuits have approved the use of a Taser to subdue individuals who resist arrest or refuse to comply with police orders. The Eleventh Circuit held the use of a Taser to "effectuate [an] arrest" was reasonable when the individual was "hostile, belligerent and uncooperative," in Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004). The Tenth Circuit ruled that the use of a Taser to overcome a suspect resisting arrest is reasonable in Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir. 1993).
In Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992), the Sixth Circuit found it was reasonable to use a Taser to subdue a paranoid schizophrenic who locked himself in an apartment and disobeyed police orders to open the door and drop his weapon.
In Pennsylvania, success on a claim of excessive force requires a claimant to defeat qualified immunity. A plaintiff must show a violation of a constitutional or statutory right and whether it would have been clear to a reasonable officer that the conduct in question was unlawful in light of clearly established law.
If an officer can show at least one prong was not met, then qualified immunity applies and the suit is barred, per Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010). 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, The Executioner's Toll, 2010, was recently released by McFarland & Co. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
Visit PLW