GateHouse: No Mr. President, the attorney-client privilege is not dead

Matthew T. Mangino

GateHouse Media

April 14, 2018

“Attorney-client privilege is dead!” President Donald Trump tweeted this week after the office of his attorney Michael Cohen was raided by the FBI.

The attorney-client privilege protects most communications between a client and attorney, permitting those communications to be kept confidential and certainly not accessible to law enforcement or prosecutors.

To avail oneself of the privilege, the client and attorney must have a relationship with regard to a specific matter. A client cannot claim to a have an attorney for “all matters.” If an attorney is hired for a bankruptcy, the client’s conversations about tax evasion may not be protected.

The attorney-client privilege insures that a client can speak candidly with his lawyer, providing information necessary to develop an effective legal strategy for a specific matter.

President Trump has said that he did not know what Cohen was doing with respect to the alleged payments to Stormy Daniels — payments that appear to be the focus of the search on Cohen’s office, home and hotel room. He has said he was unaware of the payments and did not know why the payments were made.

The president’s announcement of the death of the attorney-client privilege is a bit premature. The only way that Trump can invoke the attorney-client privilege is if he retained Cohen for the specific purpose of negotiating with, or paying-off, Stormy Daniels.

During the raid of Cohen’s office, according to the New York Times, the FBI took computers, cell phones, business records and other documents related to the Daniels payment, and a $150,000 payment made by the National Enquirer, to Karen McDougal, a former Playboy model who says she also had an affair with Trump.

In addition, Cohen is known to tape and store telephone conversations, reported the Washington Post. Those tapes may now be in the possession of the FBI.

If those communications show that President Trump knew about hush money paid to the women and conspired to deliver it, that could be construed as evidence of facilitating unreported contributions to his campaign — a felony.

Even if Trump has an attorney-client relationship with Cohen there are exceptions to the privilege.

The crime-fraud exception provides that communications with an attorney made in furtherance of criminal activity are not protected. You can tell your attorney about your own criminal conduct and that will be privileged. But you can’t use communications with your attorney to help you commit ongoing or future criminal acts.

If paying hush money to Daniels or McDougal is a crime and that crime was committed by Cohen with the president’s consent, the privileged is waived.

The larger issue is that the United State Attorney for the Southern District of New York was able to get a search warrant. In order to get a search warrant the U.S. Attorney must apply to a federal judge or magistrate. The application for a search warrant would be filed with an affidavit of probable cause. That affidavit must contain sufficient information to convince the judge to approve the warrant.

There is no question that it is unusual for a U.S. Attorney to seek documents from a lawyer that may contain information relating to a client. The DOJ does not take that responsibility lightly. A U.S. Attorney needs the approval of a supervisor before seeking a search warrant for such sensitive material.

Since the potential client in this case is the President of the United States the review went all the way to the top — sort of. Attorney General Jeff Sessions had recused himself from the special counsel probe of Russia meddling in the 2016 election. The second in command at the DOJ, Deputy Attorney Rod Rosenstein, approved the search warrant.

Latrice Bridges Copeland, a law professor at Penn State University told the Washington Post, “This is a big deal.” Bridges Copeland believes that the approval of the search warrant signals that the attorney and client — in this case Cohen and Trump — may have been working together in furtherance of a crime. “It’s not easy to make that showing to the court and get a search warrant on and attorney.”

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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PA Gov. Wolf calls for criminal justice reform

Gov. Tom Wolf is calling on lawmakers to pass a package of initiatives designed to reform the state's criminal justice system, reported the Carlisle Sentinel.

The initiatives include bail and pre-trial reforms.

They would also adopt a standard assessment tool for sentencing, create clean slate legislation to allow those convicted to re-enter society after being released, and make sure those without money have access to legal help.

Pennsylvania is the only state that does not provide state funding to a public defender system.

Scientists call for increased research and resources for forensic science

With forensic science facing mounting scrutiny as it plays an increasingly prominent role in the administration of justice, six scientists who recently served on the National Commission on Forensic Science are calling on the scientific community at large to advocate for increased research and financial support of forensic science as well as the introduction of empirical testing requirements to ensure the validity of outcomes, reported Phys.org. 

"Forensic reform is challenging because the field of law is based on historical precedent, whereas science builds on itself to advance continuously," says Thomas Albright, professor and director of Salk's Vision Center Laboratory who has studied why eyewitnesses fail. "But if the ultimate goal of a legal system is to deliver justice, then forensic evidence should be based on up-to-date methods that have been scientifically validated."

Since the 1990s, when DNA exonerations revealed problems with some forensic disciplines, various groups have been calling for reform. This led to a landmark 2009 report by the National Academy of Sciences (NAS) that found many forensic practices were highly subjective and paved the way for the 2013 establishment of the National Commission on Forensic Science to examine such practices. A number of independent scientists served on the commission, along with forensic scientists, attorneys, judges and law enforcement personnel, from 2013 to 2017 when the Department of Justice declined to renew its charter.

Six of the independent scientists—Albright, Suzanne Bell of the University of West Virginia; Sunita Sah of Cornell University; S. James Gates, Jr., of Brown University; M. Bonner Benton of the University of Arizona and Arturo Casadevall of Johns Hopkins University—write in the new paper that the complex methodologies of forensic science, which range from DNA analysis to pattern recognition to chemical composition, must be subjected to scientific testing rather than relying on historical precedent. They cite the example of bite-mark identification, which has been scientifically discredited and has resulted in false convictions, but continues to be accepted in U.S. courts due to precedent.

"In many forensic procedures, such as fingerprint or footprint or bullet matching, decisions about the similarity of visual patterns are made by people—and people make mistakes," says Albright, who holds the Conrad T. Prebys Chair in Vision Science. In 2017, Albright published a paper in PNAS about an NAS study on eyewitness testimony that described why identification errors occur and how they can be prevented. "We encourage the scientific community to welcome forensic scientists into their ranks to help identify the causes of forensic failures, predict when they might occur and lend support to developing strategies to mitigate or prevent them," says Albright.

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CA Sheriff: It is cheaper for police to kill a suspect than 'cripple'

The sheriff of Kern County, California with the highest rate of killings by police in the U.S. once said it is “better financially” for local authorities if officers kill suspects rather than badly injure them, reported the Guardian.

Sheriff Donny Youngblood, who is currently running for re-election, made the remarks while addressing rank-and-file officers during his first campaign in 2006. Video of the meeting was recently found by an officers’ union.

“You know what happens when a guy makes a bad shooting on somebody and kills them? Three million bucks and the family goes away after a long back and forth,” Youngblood said.

He went on to say: “Which way do you think is better financially – to cripple them or kill them – for the county?” An unidentified man offscreen said “kill them”, to which Youngblood replied: “Absolutely. Because if they’re crippled we get to take care of them for life. And that cost goes way up.”

The sheriff’s office did not immediately respond to a request for comment.

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President Trump: 'Why don’t I just fire Mueller?'

President Donald Trump has once again lambasted the ongoing investigation into Russian meddling in the 2016 election and chastised Attorney General Jeff Sessions for recusing himself from the probe, reported the Huffington Post.

Trump appeared to directly float the idea of firing special counsel Robert Mueller at the start of his military leadership meeting on Monday, calling the special counsel’s investigation a “disgrace” and defending his firing of former FBI Director James Comey as the “right thing” to do.

“Why don’t I just fire Mueller?” Trump asked in response to a reporter’s question. “Well, I think it’s a disgrace what’s going on. We’ll see what happens, but I think it’s really a sad situation ... Many people have said you should fire him. Again, they found nothing, and in finding nothing, that’s a big statement.”

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President Trump's comments and the facts on crime and justice are not compatible

President Trump made 24 false or misleading claims in two recent public speeches, says the Washington Post Fact Checker. Here is a roundup by The Crime Report of several pertaining to crime and justice: 

1) The President said, “We started building our [Mexican border] wall … We have $ 1.6 billion… and we’ve already started.” The spending bill Trump signed last month includes $1.6 billion for fencing along the U.S.-Mexico border, not for Trump’s wall, the Post says. Parts of this all-fence project date to 2009, long before Trump took office.

2) Trump said that, “A very important, and respected, in some circles, Democrat, said we want to get rid — we should get rid of our Second Amendment.” Trump was referring to retired Supreme Court Justice John Paul Stevens, who actually is a Republican.  

3) Speaking of the bump-stock accessories for guns, Trump said, “We got rid of the bump stocks. The bump stocks, now, are under very strict control, which I think everybody agrees is fine.” Actually, the administration has proposed to ban bump-stock accessories for firearms, but the rulemaking process takes time and the ban is not finalized. 

4) On federal judges, the president said he had appointed 145  district judges. In fact, since Trump took office, the Senate has confirmed 14 appellate judges, 14 district judges, and one Supreme Court justice. Another 45 district court nominees and 10 appellate court nominees are awaiting confirmation. Trump has set a record with judicial appointments, but it’s more modest than he portrays.

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GateHouse: GAO finds racially disproportionate discipline in schools

Matthew T. Mangino

GateHouse Media 

April 6, 2018

Black students are disciplined at school more often and more harshly than white students according to a report, issued this week by the Government Accountability Office (GAO).

In 2014, President Barack Obama released guidance on school discipline in collaboration with the U.S. Department of Education and the U.S. Department of Justice.

According to the guidance, public schools are prohibited, by federal law, from discriminating in the administration of student discipline based on protected characteristics — race, gender, disability and sexual orientation.

When the guidance was released, incidents of school violence had already begun to decrease overall, but schools were still struggling to create positive, safe environments. The guidance was in response to the significant numbers of students who miss class due to suspensions and expulsions — even for minor infractions of school rules. Students of color and students with disabilities were disproportionately impacted.

This week’s report is the first government-sponsored analysis of discipline policies since the Obama administration urged schools to examine the disproportionate rates of student punishment.

GOP members of Congress have argued that the Obama-inspired guidance has led to more school violence because students who may have otherwise been removed from school have continued to cause mayhem. Republicans have even tried to link the guidance to the recent mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. The GAO report appears to support Obama’s concerns.

According to the report, the issue of who gets disciplined and why is complex. The GAO suggests that studies they reviewed demonstrate that implicit bias — stereotypes or unconscious associations about people — on the part of teachers and staff may cause them to judge students’ behaviors differently based on the students’ race and sex.

Studies show that discipline decisions can result in certain groups of students being more harshly disciplined than others.

According to the GAO, one study found that black girls were disproportionately disciplined for subjective interpretations of behaviors, such as disobedience and disruptive behavior. A separate study used eye-tracking technology to show that, among other things, teachers gazed longer at black boys than other children when asked to look for challenging behavior based on video clips.

The GAO found that during the 2013-14 school year, black students accounted for 15.5 percent of all public school students, but represented about 39 percent of students suspended from school.

Removing students who misbehave from school is counterintuitive. In “From the School Yard to the Squad Car: School Discipline, Truancy, and Arrest,” published in The Journal of Youth and Adolescence in 2014, a connection was found between mandated leaves of absence from school and the likelihood of arrest for juveniles.

The researchers found that youth are more likely to be arrested on days they are suspended from school. The increased likelihood of arrest is strongest among youth who do not have a history of criminal behavior.

According to the Journal of Counseling and Development a suspension is more likely to cause a child to drop out of high school than any other factor, including low socioeconomic status, not living with both biological parents, a high number of school changes, and having sex before age 15. Students who are expelled from school are even less likely to graduate from high school.

The consequences of not graduating from high school are severe, according to the American Bar Association. Children who do not finish high school are 3.5 times more likely to be arrested as adults. Additionally, approximately 82 percent of the adult prison population is composed of high school dropouts.

The GAO report is a step in the right direction and should vindicate the concerns of the Obama administration, while quelling the rumblings that federal discipline guidance for school districts is unwarranted or overreaching.

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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