PLW: Pa. Supreme Court to Decide Fate of Eviscerated Preliminary Hearing

Matthew T. Mangino

The Pennsylvania Law Weekly

May 17, 2018

The criminal preliminary hearing in Pennsylvania, at least for the time being, is of no practical use nor does it provide any meaningful protection to a defendant.

In interpreting Pennsylvania Rule of Criminal Procedure 542 (E) the Pennsylvania Superior Court has authorized magisterial district judges to hold a defendant for court following a preliminary hearing at which the commonwealth presents only hearsay evidence.

Pursuant to Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. Ct. 2015), and Commonwealth v. McClelland, 165 A.3d 19 (Pa. Super. Ct. 2017), a prosecutor can call a police officer as its sole witness at a preliminary hearing, have her read her affidavit of probable cause into the record, and meet its burden of proof.

In Ricker, the Pennsylvania Superior Court held that it does not violate the confrontation clause of Article I, Section 9 of the Pennsylvania Constitution, or the Sixth Amendment to the U.S. Constitution for a defendant to be held for court and ordered to stand trial as a result of a preliminary hearing based on hearsay alone.

In June 2014, David Ricker shot Pennsylvania State Trooper Michael Trotta. Ricker was arrested and charged with attempted murder, assault of a law enforcement officer and aggravated assault.

At the preliminary hearing before a magisterial district judge, the commonwealth presented live testimony from an investigating officer, who testified that he observed Trotta’s gunshot wounds and participated in a search of Ricker’s residence.

The investigating officer spoke to Ricker in the hospital who said that he had an AK-47 rifle when he shot Trotta and commented that he did not understand why Trotta did not leave his property and obtain a search warrant.

At the preliminary hearing the prosecution played a recording of an interview with Trooper Trotta. Ricker’s lawyer demanded to cross-examine Trotta, and argued that Ricker’s case is being improperly evaluated on hearsay testimony alone. The commonwealth argued that they presented more than just hearsay evidence—they also presented Ricker’s statement.

Rule 542 (E), amended in 2013, provides: “Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, nonpermitted use of, damage to, or value of property.”

The Superior Court found that Rule 542 (E), permitting hearsay to be considered in assessing whether the commonwealth has met its burden, authorizes the use of hearsay alone at a preliminary hearing to satisfy the commonwealth’s entire burden of proof.

In McClelland, the Superior Court held that the 14th Amendment due process clause is not violated when a defendant is held for court at a preliminary hearing based on only hearsay testimony.

Donald McClelland was charged by the Pennsylvania State Police with sexually assaulting an 8-year-old girl. The charges included indecent assault, indecent exposure and corruption of a minor. The child was interviewed on videotape by a child advocate in the presence of a state trooper.

At the preliminary hearing, the prosecution did not call the 8-year-old alleged victim to testify or play the videotaped interview. The prosecution called only the trooper. The trooper testified entirely from his observations of the interview. The only evidence presented was hearsay.

McClelland filed a petition for writ of habeas corpus asking the Court of Common Pleas to review the preliminary hearing and dismiss the charges. The attorneys for McClelland argued that holding the charges for court based only on hearsay violated both their client’s right of confrontation and right to due process under both the Pennsylvania and U.S. constitutions.

The trial court denied the petition, and McClelland filed an interlocutory appeal to the Superior Court.

The Superior Court found that there is no constitutional right to a preliminary hearing, and therefore the prosecution cannot violate the defendant’s right to due process by asking a police officer to simply read into the record the statement of a witness.

Prior to Rule 542, Ricker and McClelland, there was Commonwealth Buchanan v. Verbonitz, 581 A.2d 172, 175 (Pa. 1990).

In Buchanan, the only evidence offered by the commonwealth at the preliminary hearing was the testimony of a police officer testifying about a statement made by a witness. The Pennsylvania Supreme Court held that the commonwealth failed to establish a prima facie case. Justice Rolf Larsen wrote in a plurality opinion, “Fundamental due process requires that no adjudication be based solely on hearsay evidence.”

The importance of the preliminary hearing was firmly established by the U.S. Supreme Court through a series of decisions beginning with Coleman v. Alabama, 399 U.S. 1, 9 (1970), which found that the preliminary hearing is a critical stage of a criminal case and requires the assistance of counsel. In Gerstein v. Pugh, 420 U.S. 103, 120 (1975), the high court found that witness testimony and the opportunity for cross-examination are essential to pretrial matters.

In Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. Ct. 2002), the Superior Court ruled that the use of only hearsay testimony fails to meet the threshold for evidence upon which the preliminary hearing judge may rely. In Commonwealth v. Nieves, 876 A.2d 423, 427 (Pa. Super. Ct. 2005), the court found that a prima facia case can be established by hearsay only when the prosecution provides other evidence in addition to hearsay.

The Pennsylvania Supreme Court dismissed Ricker’s appeal on Sept. 28, 2017, as improvidently granted. While doing so, a dissenting statement and concurring statement clearly signaled that this issue is far from resolved.

Chief Justice Thomas G. Saylor, in a concurring statement, acknowledged, “I recognize that the applicable rules are not models of clarity, as, for example, the directive to accept hearsay evidence in Rule 542 (E) appears to clash with the rule-based right to cross-examine witnesses against the defendant conferred under Rule 542 (C).”

Saylor went on, “From my perspective, the 2013 amendment to the rule was not intended to convey that the commonwealth could meet its burden at a preliminary hearing entirely through hearsay evidence.”

“I personally operated on the belief that the court was not rejecting Commonwealth Buchanan v. Verbonitz, but rather, was simply putting the attendant controversy aside for future consideration in the case law,” said Saylor.

Justice David Wecht, in a dissenting statement, spent a great deal of time exploring the difference between “any” as used in Rule 542 and “all” as generally used. In addition he wrote, “when the law affords a hearing to a person involved in our judicial system, particularly a hearing in which that person’s liberty is at stake, the hearing must be more than a mere formality.” He then borrowed from U.S. Supreme Court Justice Benjamin Cardoza in Palko v. Connecticut, 302 U.S. 319, 327 (1937), “the hearing, moreover, must be a real one, not a sham or a pretense.”

Although in McClelland, the Superior Court acknowledged that the due process clause requires adequate notice, the opportunity to be heard, and the chance to defend oneself—it does not require the opportunity to confront witnesses against a defendant. However, Judge Mary Jane Bowes writing for the three-judge panel in McClelland did suggest some limitations on hearsay. She wrote, “This decision does not suggest that the commonwealth may satisfy it burden by presenting the testimony of a mouthpiece parroting multiple levels of rank hearsay.”

The use of rank hearsay is exactly what Ricker and McCelland have permitted. Although the Rules of Evidence have traditionally been relaxed at a preliminary hearing, permitting the prosecution to offer only hearsay evidence at such a hearing is, as Justice Benjamin Cardoza wrote, a “sham,” and a violation of the 14th Amendment due process and the Sixth Amendment right to confrontation.

The Pennsylvania Supreme Court granted allowance to appeal to McClelland in January, refining the issue to “Whether the Superior Court panel failed to properly apply and follow the legal precedent set forth in Commonwealth Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), in which five justices held that ‘fundamental due process requires that no adjudication be based solely on hearsay evidence.’”

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

To visit the column CLICK HERE

Denver police search entire student body looking for shooting suspect

Denver police officers went classroom by classroom at a largely minority high school and asked teenagers for their IDs as they looked for a suspect in a shooting, reported The Associated Press.

Several students spoke out, saying the April 24 search made them feel targeted, disrespected and unsafe.

“We should not be treated like animals that have just run away from a shelter. We should be treated like humans, like students,” said Mary Jimenez, a 17-year-old junior at Rise Up Community School. “Because we are students of color and students of low income, we get harassed and pushed around and we’re expected not to fight back.

“We need our respect and we need answers,” she said to loud applause.

Denver police have launched an internal investigation, Denver Department of Public Safety executive director Troy Riggs said.

“What happened should not have happened,” Denver Public Schools Superintendent Tom Boasberg said.

The search occurred at the small alternative charter school for students ages 16 through 20 who have dropped out of traditional schools or who are at risk of leaving school. Principal Lucas Ketzer said officers looked for the juvenile suspect over his objections, which he said caused students to feel unsafe and intimidated.

Police pushed a teacher away from her classroom after she said she wouldn’t allow them to enter without a warrant and pulled a gun on a teacher who went out a back door looking for students in an alley where they sometimes hang out, he said.

“I have heard the concerns from the community and independent monitor regarding the incident that occurred at the RiseUp Community School, and an administrative investigation was opened this morning to review the incident,” said Riggs, referring to the civilian oversight agency for Denver’s police and sheriff departments.

The principal questioned whether police would have conducted such a search at a school with more affluent students. He said his students commonly report feeling intimidated by police outside of school and that the search showed teachers working to gain their confidence cannot protect them from that.

To read more CLICK HERE

Aging prisoners grow as costs soar

The High Costs of Low Risk: The Crisis of America’s Aging Prison Population, the Osborne Association recommends immediate steps to stem the rapid growth of Americans aging – and dying –  behind bars and reduce the roadblocks older people face returning to society.

Even as crime is at national lows and 36 states have reduced imprisonment rates, the number of older adults in prison, many of whom require specialized medical care for age-related illnesses, has only continued to grow. By 2030, people over 50 will make up one-third of the US prison population, putting an unsustainable pressure on the justice system as a whole.

This crisis is exacerbated by the fact that prisons were never designed to be geriatric wards for individuals with a whole host of age-related issues. Incarcerated individuals experience a mental and physical decline at a much faster rate than people outside of prison: for example, research shows 40% of incarcerated older people are diagnosed with cognitive impairment. For some, dementia becomes so pronounced that they cannot even remember why they are incarcerated in the first place.

The unique challenges of incarcerating older people come at a high cost in both taxpayer dollars and human suffering. New York taxpayers spend between $100,000 and $240,000 annually to keep an aging person behind bars even though, after decades of incarceration, older people pose little to no risk to public safety. Only 1% of people 65 and older released from prison in New York are convicted of new crimes within three years, giving them the lowest recidivism rate of any age cohort.

To read more CLICK HERE

GateHouse: Has the Supreme Court thwarted the dark side of sports betting?

Matthew T. Mangino

GateHouse Media

May 18, 2018

Former U.S. Senator Bill Bradley sponsored the Professional and Amateur Sports Protection Act (PASPA) when it was passed into law in 1992. Bradley knew a little something about sports. He was a basketball star at Princeton University, an Olympic gold medalist and won two NBA championships with the New York Knicks.

This week the U.S. Supreme Court struck down PASPA opening the door, nationwide, to betting on sporting events. PAPSA worked like this — it didn’t regulate gambling because that would have opened sports betting to places other than Las Vegas. The law didn’t outlaw gambling that would have closed down Las Vegas. What Congress did was say that state legislatures that hadn’t already legalized gambling could not enact sports betting legislation in the future.

The Supreme Court ruled that barring state legislatures from legalizing sports betting amounted to an unconstitutional commandeering of the state legislatures. Justice Samuel Alito wrote, “The legalization of sports gambling requires an important policy choice, but the choice is not ours to make.”

In an interview with NorthJersey.com Bradley said, “I regret the ruling. I think the court ignored the impact that the ruling will have on sports in America, and values you learn from sports. I mean, they’ve turned every basketball player, football player and baseball player into a roulette chip.”

With the exception of Las Vegas sports betting has always been conducted in the shadows — and professional athletes have at times crossed to the dark side. From Shoeless Joe Jackson and Pete Rose in baseball, to Heisman Trophy winner Paul Horning and All-Pro Alex Karras in football, professional athletes and college athletes have paid the price for gambling.

Experts suggest that illegal betting in the United States is a $150 billion business. To put that figure in perspective, in 2017 Major League Baseball saw gross revenues surpass the $10 billion mark for the first time.

According to research by UNLV’s Center for Gaming Research, legal sports betting in Nevada totaled nearly $5 billion last year, led by football — both college and professional — which accounted for $1.76 billion.

Will legal gambling lead to corruption? Professional sports are highly regulated and closely scrutinized. Technology is so sophisticated that betting action is monitored in real time to identify potential spikes in irregular betting patterns.

Professional athletes who are making millions of dollars are not likely to jeopardize that wealth for a chunk of money on the side. However, college athletes are more vulnerable. The college athlete will not share in the revenue of increased viewership or possible “integrity fees,” that may be paid to the NCAA by each state authorizing sports betting.

“College sports is the one realm where corrupters can influence athletes, because they’re not paid market rate,” Ryan Rodenberg, a sports law professor at Florida State University, told The Washington Post.

There was the Tulane University and Boston College basketball point shaving sandals of the 1970s and 1980s and University of Toledo football player Quinton Broussard who pleaded guilty to fumbling on purpose in a 2005 bowl game in exchange for $500.

Ironically, the entities who stand to benefit the most from legalized sports betting are the very entities that sued New Jersey to prevent sports wagering which resulted in the Supreme Court decision — the NFL, MLB, NBA and the NHL.

The American Gaming Association conducted research for the NFL in 2016 and found that adults who bet on NFL games watched 19 more games during the 2015 season than adults who did not bet.

With potentially millions of more fans betting on games it is estimated that the number of NFL regular season viewers would jump from 40 million to 57 million. Advertising costs will soar and the NFL will cash in.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

Tillerson talks integrity at VMI commencement

Former Secretary of State Rex Tillerson made some interesting comments in a commencement speech at Virginia Military Institute, reported the Huffington Post. Tillerson gave his most public remarks since President Donald Trump ousted him from the White House in March.

“As I reflect upon the state of American democracy,” he told the Class of 2018, “I observe a growing crisis in ethics and integrity.”

Tillerson’s emphasis on integrity echoed his parting words to colleagues at the State Department in March. Then he went even further:

“If our leaders seek to conceal the truth, or we as people become accepting of alternative realities that are no longer grounded in facts, then we as American citizens are on a pathway to relinquishing our freedom.”

Is he talking to President Trump and his administration?  You bet.

Tillerson’s time in Trump administration was marked by tension. He reportedly called the president a “moron” eight months before he was fired and replaced by then-CIA Director Mike Pompeo.

To read more CLICK HERE

Detecting those who drive while impaired by marijuana

With more and more states legalizing marijuana there is concern over detecting those who drive while impaired by marijuana.  New research by New York University Marron Institute of Urban Management and BOTEC Analysis, LLC "Driving While Stoned: Issues and Policy Options" examines flaws in the current system of detection.
The paper's abstract provides: 

THC is the intoxicant most commonly detected in US drivers, with approximately 13% of drivers testing positive for marijuana use, compared to the 8% that show a measurable amount of alcohol (NHTSA, 2015). (The two figures are not strictly comparable because cannabis remains detectable for much longer than alcohol, and also for long after the driver is no longer impaired; therefore, the difference in rates does not show that stoned driving is more common than drunk driving.) Cannabis intoxication has been shown to impair reaction time and visual-spatial judgment.
Many states, including those where cannabis sales are now permitted by state law, have laws against cannabis-impaired driving based on the drunk-driving model, defining criminally intoxicated driving as driving with more than a threshold amount of intoxicant in one’s bloodstream—a per se standard—as opposed to actual impairment. That approach neglects crucial differences between alcohol and cannabis in their detectability, their pharmacokinetics, and their impact on highway safety.
Cannabis intoxication is more difficult to reliably detect chemically than alcohol intoxication. A breath alcohol test is (1) cheap and reliable; (2) sufficiently simple and non-invasive to administer at the roadside; and (3) a good proxy for alcohol in the brain, which in turn is (4) a good proxy for subjective intoxication and for measurable driving impairment. In addition, (5) the dose-effect curve linking blood alcohol to fatality risk is well-established and steep.
None of those things is true for cannabis. A breath test remains to be developed. Oral-fluid testing can demonstrate recent use but not the level of impairment. A blood test requires a trained phlebotomist and therefore a trip to a medical facility, and blood THC levels drop very sharply over time-periods measured in minutes. Blood THC is not a good proxy either for recency of use or for impairment, and the dose-effect curve for fatality risk remains a matter of sharp controversy. The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone (legal in all states) than to driving with a BAC above 0.08, let alone the rapidly-rising risks at higher BACs. Moreover, the lipid-solubility of THC means that a frequent cannabis user will always have measurable THC in his or her blood, even when that person has not used recently and is neither subjectively intoxicated nor objectively impaired. That suggests criminalizing only combination use, while treating driving under the influence of cannabis (however this is to be proven) as a traffic offense, like speeding.

For access to the research CLICK HERE

SCOTUS provides Fourth Amendment protection to rental car users

The Fourth Amendment protects us from (among other things) a warrantless search of a place – such as our homes – that we can reasonably expect to remain private. Today the Supreme Court ruled that a driver who has permission to use a rental car is generally entitled to the same protections under the Fourth Amendment as the driver who rented the car, wrote Amy Howe on SCOTUSBlog.

Here is what I wrote about the case in January for GateHouse Media.

The court’s decision came in the case of Terrence Byrd, a New Jersey man who was driving a car rented by Latasha Reed, his fiancée (or former girlfriend, depending on whose account you are reading), when he was pulled over by a state trooper in Pennsylvania. The trooper gave him a warning for driving in the left lane and then searched the car, believing that he didn’t need Byrd’s consent because Byrd was not listed as an authorized driver on the rental agreement. The troopers found body armor and 49 bricks of heroin in the trunk, leading to federal charges against Byrd.

After the trial court rejected Byrd’s argument that the heroin and body armor could not be introduced as evidence because the search of the trunk violated his Fourth Amendment rights, Byrd pleaded guilty and was sentenced to 10 years in prison. The U.S. Court of Appeals for the 3rd Circuit upheld his conviction, on the ground that the driver of a rental car who is not listed on the rental agreement does not have a reasonable expectation of privacy in the car and cannot challenge a search, but today the Supreme Court reversed.

In a unanimous decision by Justice Anthony Kennedy, the justices rejected the federal government’s argument that a driver who is not listed on the rental agreement can never have a reasonable expectation of privacy in the car, because the rental company has not given him permission to use it. That rule, the justices concluded, “rests on too restrictive a view of the Fourth Amendment’s protections.” Under the Supreme Court’s cases, the justices explained, whether someone has an expectation of privacy in a car shouldn’t hinge on whether the person who gave them permission to drive it owns the car or rented it.

To read more CLICK HERE