Mangino talks with WFMJ-TV21 Today Show

Watch my interview on WFMJ-TV21 Today Show.
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More than 7 million people nationwide had driver’s licenses suspended for failure to pay fines

More than 7 million people nationwide may have had their driver’s licenses suspended for failure to pay court or administrative debt, a practice that advocates say unfairly punishes the poor, the Washington Post reports. The total number could be much higher based on the population of states that did not or could not provide data, according to The Crime Report. 

At least 41 states and Washington, D.C., suspend or revoke driver’s licenses after drivers fail to pay traffic tickets or appear in court to respond to such tickets. Driver’s license suspensions were criticized by anti-poverty advocates after a 2015 federal investigation focused on Ferguson, Mo., showed that law enforcement used fines to raise revenue for state and local governments. 

Last year, the nonprofit Equal Justice Under Law filed class-action lawsuits against the states of Michigan and Montana for what they call  wealth-based suspension schemes, and filed another suit this year against the state of Pennsylvania for suspending licenses solely because of drug related offenses. According to the organization’s director Phil Telfeyan, a former civil rights attorney for the Department of Justice, Michigan suspended 397,826 licenses in 2010 alone for failure to pay court debt or failure to appear.

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Trump posthumously pardons boxing champion Jack Johnson

President Donald Trump posthumously pardoned Jack Johnson, the first black heavyweight champion, who was convicted under the Mann Act in 1913 for transporting a white woman across state lines and served 10 months in federal prison, reported Jurist.

Trump said Johnson "overcame difficult circumstances to reach the heights of the boxing world and inspired generations with his tenacity and independent spirit." Johnson's conviction occurred during a period of racial tension in the US.

The full pardon has widespread bipartisan support and is being granted in order "to correct a wrong that occurred in our history, and to honor a truly legendary boxing champion, legendary athlete."

Previously, resolutions calling for his pardon went through Congress, including one ] from Senators Harry Reid (D-NV) and John McCain (R-AZ) in 2015. In a statement, McCain lauded the pardon, saying "[f]or years, Congress has overwhelmingly supported legislation calling on multiple US presidents to right this historical wrong and restore this great athlete's legacy. President Trump's action today finally closes a shameful chapter in our nation's history and marks a milestone that the American people can and should be proud of."

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GateHouse: The fallibility of eyewitness identification

Matthew T. Mangino

GateHouse Media

May 26, 2018

Former United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion nearly 35 years ago, “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’”

Convincing yes — reliable, maybe not.

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. Advances in the social sciences and technology have cast a new light on eyewitness identification.

Hundreds of studies on eyewitness identification have been published in professional and academic journals. One study by University of Virginia Law School professor Brandon L. Garrett, found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence.

A current member of the U.S. Supreme Court, Justice Sonia Sotomayor, has acknowledged the shortcomings of eyewitness testimony. She wrote, “eyewitness identifications’ unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial.”

What can cause an eyewitness to misidentify a suspect? There are a number of factors: Poor lighting, the crime occurred quickly, the presence of a gun, and the fact that the perpetrator is a different race than the witness. The police can, as well, intentionally or unintentionally influence an eyewitness’ identification. This week Louisiana Gov. John Edwards signed into law legislation requiring all police agencies in Louisiana to adopt eyewitness identification procedures aimed at preventing mistaken identifications and wrongful convictions.

Louisiana joins New Jersey, Massachusetts and North Carolina, among other states, to review and revise state rules for how judges and jurors treat evidence from police lineups and photo arrays. States are utilizing practices supported by years of research.

There are four basic rules proposed by researchers to help promote valid police identifications including: Who conducts the lineup; instructions on viewing the lineup; the structure of the lineup or array; and immediately obtaining a confidence statement for the eyewitness.

When it comes to the “who,” research supports double-blind lineups administered by a police officer who is not familiar with the suspect and who is not one of the primary investigators on the case. The instructions are equally important. For instance, a photo array should be presented sequentially rather than as a group without comment by the officer displaying the array. Research studies have revealed that both practices decrease the pressure on witnesses to pick someone and guards against undue influence.

The structure of the lineup is another area where bias can seep into the process. If the eyewitness described the suspect as a white male with long hair, approximately 6 feet, 4 inches tall with a thin build, it would not be fair to have the suspect and four short, overweight, bald men in a lineup.

Finally, a confidence statement taken from the witness immediately after the array or lineup will provide the police, the suspect and ultimately jurors with a clear understanding of just how sure — or confident — the eyewitness is in her identification of the suspect.

The Louisiana legislation, according to the New Orleans Times-Picayune, mandates all police agencies in the state adopt the Louisiana Sheriff’s Executive Management Institute model policy on eyewitness identification procedures, or write its own policy that adapts best practices. The model policy calls for, among other procedures, blind administration of photo lineups and instructions that the suspect may or may not be in the lineup.

What was once the gold standard of evidence — the disinterested eyewitness — is now subject to intense scrutiny. Standardized identification procedures are a start, however, acknowledging that witnesses can be unintentionally biased or that the human mind is fallible may be more difficult.
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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The appliances in your home are potential witnesses against you

As our homes keep getting smarter: law enforcement will treat your appliances as potential witnesses.

It seems new smart gadgets are introduced every week, reported The Marshall Project. There are smart TVs, which suggest the programs they think you’ll like. Smart refrigerators are equipped with interior cameras and UPC scanners that keep track of the items you stock in your refrigerator, and then reorder them as they run out. One brand of smart mattress “tracks over 15 factors about your sleep and health, including deep sleep, heart rate and respiratory rate,” according to its website.

“From a law enforcement or intelligence perspective, these are very valuable tools that can let them monitor or listen to individuals,” says Dale Watson, the FBI’s former executive assistant director, now a consultant.

“Smart devices are also kind of frightening,” Watson says. “What are the legal ramifications? The technology is moving so fast that the laws and courts haven’t caught up with it.”

One reason there aren’t clear legal guidelines has to do with the way smart homes work, which, some analysts contend, means they’re not protected by the Fourth Amendment. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” the Amendment declares. Courts have ruled that means police can’t search your home, except in emergencies, without convincing a judge to sign a search warrant on the grounds that there’s “probable cause” they will find evidence of a crime.

But the Supreme Court and other courts have established a broad exception, called the “third party doctrine.” The government does not need a search warrant in most cases to get personal information that you’ve already shared voluntarily with somebody else, like a bank or internet provider or utility.

Well, smart devices in your home are constantly sharing your personal information with somebody else. This “internet of things” sends details about your food orders and sleep cycles and conversations with Alexa through your router and over the internet, usually to the manufacturer or a contractor. So some government officials argue that the third party doctrine applies and they can get that information just by asking for it. When “third party” companies balk, police in some states get the information by issuing a subpoena, no judge’s approval needed. 

For instance, San Diego Gas & Electric Company disclosed recently that government agencies subpoenaed data generated by smart meters at 480 homes and businesses last year. A company spokesperson would not disclose which agencies, but the company has given meter data before to the FBI and Immigration and Customs Enforcement, among others.

The Supreme Court hasn’t ruled yet on issues raised specifically by smart homes, but it is about to decide another case that could have a bearing on the issue. The question in Carpenter v. United States is, can the government get historical cell phone location data from your phone company without a warrant? If so, how far back into your history can it go? In resolving those questions, the justices might hint how strictly they want to protect other data generated by your smart meter and refrigerator.

as our homes keep getting smarter: law enforcement will treat your appliances as potential witnesses.

It seems new smart gadgets are introduced every week. There are smart TVs, which suggest the programs they think you’ll like. Smart refrigerators are equipped with interior cameras and UPC scanners that keep track of the items you stock in your refrigerator, and then reorder them as they run out. One brand of smart mattress “tracks over 15 factors about your sleep and health, including deep sleep, heart rate and respiratory rate,” according to its website.

“From a law enforcement or intelligence perspective, these are very valuable tools that can let them monitor or listen to individuals,” says Dale Watson, the FBI’s former executive assistant director, now a consultant.

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Miranda warnings for students facing school discipline

A coalition dedicated to reforming school discipline in Maryland is asking the Baltimore school board to adopt a youth-specific Miranda warning for school police to use when letting children know their legal rights, reported the Baltimore Sun.

The board is in the midst of considering new school police policies, and is accepting feedback on its sweeping draft of regulations before a scheduled vote next month.

Jenny Egan, a juvenile public defender, recently urged the school board to use this opportunity to craft a Miranda warning that includes developmentally appropriate language more easily understood by children being interrogated.

It would be a divergence from the traditional recitation often heard in TV cop shows, which begins: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.”

That clunky legal language, Egan said, is difficult for children and teens to understand. Under pressure from authorities, some may waive their Miranda rights without understanding the ramifcations of their choice.

At a recent board meeting, another juvenile public defender, Neeta Pal, read the commissioners an example of a “youth-friendly” warning, which was implemented in Seattle’s King County last year. It includes phrases like, “It’s OK if you don’t want to talk to me” and “you have the right to talk to a free lawyer right now.”

Announcing the shift last year, the King County Sheriff’s Office said the “simplified warnings are consistent with research on adolescent brain science,” which show juveniles often lack the perspective and judgement to avoid potentially detrimental choices.

The Miranda warning stems from a 1966 Supreme Court decision that determined law enforcement officers must warn suspects that they have a right to remain silent and have an attorney present when answering questions.

But the Miranda ruling doesn’t establish a script that officers must use. Police agencies across the country use more than 800 variations, according to the American Psychological Association.

City schools police chief Akil Hamm told the school board that his officers are rarely in the position of having to recite Miranda rights to students, but he said he would consult with the district’s legal office to discuss whether a divergence from the more traditional script is possible.

The district’s new draft regulations already include pages of additional guidance for officers to adhere to when interrogating students, district officials said.

 “Particular care must be taken to ensure that the juvenile fully comprehends their Miranda rights,” the draft general orders read.

The policy states that officers should consider factors such as a student’s age, mental state and maturity level.

Martha James-Hassan, chair of the school board's policy committee, said the group is still looking into what would be allowed under the police's general orders and state law and declined to comment on the board's position.

The American Bar Association passed a recommendation eight years ago encouraging police agencies to develop simplified Miranda language to use when arresting juveniles. The group said even slight word changes and simplified sentence structures would lead to “major improvements” in enabling children to grasp the rights afforded to them.

“It’s a very easy fix,” Egan said.

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Texas executes 'lovers' lane' killer Juan Castillo

The 11th Execution of 2018

After three canceled death dates in one year, lovers' lane killer Juan Castillo was executed on May 16, 2018 after years of protesting his innocence, reported the Houston Chronicle and the Marshall Project. He was the sixth man this year to meet his end in the Huntsville death chamber.

No one from his family was there to watch as he mumbled his final words.

"To everyone that has been there for me you know who you are," he said. "Love ya'll. See y'all on the other side. That's it."
As the drugs took hold, he struggled to lift his head and look down at his feet.
"I can taste this s---," he added. "S--- does burn."

He began breathing heavily, then stopped a minute later. He was pronounced dead at 6:44 p.m., 23 minutes after the execution began.

Castillo was convicted of killing 19-year-old rapper Tommy Garcia, Jr., in a December 2003 robbery on a San Antonio lovers' lane. He was sentenced to death in 2005.

One night, early in December of 2003, Castillo and his girlfriend teamed up with another couple to plan a robbery, according to court records. Their target — 19-year-old rapper Tommy Garcia, Jr. — counted among the former lovers of Castillo’s girlfriend, Debra Espinosa.

The plan was for Espinosa to lure Garcia to a secluded spot for drugs and sex, and then Castillo and his friend Francisco Gonzales would storm the car and rob their unwitting victim. Espinosa would play along, and Teresa Quintero, Gonzales’ girlfriend, would be the getaway driver.

But things didn’t go quite as planned. Garcia and Espinosa were making out in his 1994 Camaro when Castillo and Gonzales — wearing ski masks and toting guns — attacked. They tore Garcia from the car, and Castillo ended up shooting him seven times, according to court records.

Afterward, Gonzales and Espinosa were quickly arrested and agreed to testify against Castillo in exchange for a reduced charge. They both ended up with 40-year sentences, while Quintero was sentenced to 20 years for robbery.

Some of Garcia’s friends testified about the events surrounding the shooting: both the call from Espinosa beforehand asking to meet up and a frantic call afterward saying Garcia had been shot.

During the punishment phase of the trial, Castillo decided to represent himself, and he never cross-examined anyone who testified against him and extensively outlined evidence of his future dangerousness. Witnesses told the court that Castillo brutally beat the mother of his child, shot a man in a road rage incident, committed a slew of armed street robberies and boasted about home invasions, stabbings, and killings.

In the appeals process, Castillo argued he had had ineffective trial counsel. He also claimed that the death penalty is unconstitutionally cruel and that the evidence had not been strong enough to convict.

He was scheduled for execution in May 2017, but it was stayed after prosecutors failed to file a 90-day notice to the defense. His next execution date, in September 2017, was called off in the aftermath of Hurricane Harvey.

Then his December execution date was cancelled and the case sent back to the trial court after the defense raised claims of false testimony from a jailhouse snitch who later recanted.

The case went back to the trial court, but there a judge signed off on the state's recommended findings three days later, before the defense could submit its findings. 

The court then approved a new execution date, Castillo's fourth in just under a year.

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