PLW: US Supreme Court Strikes Huge Blow at Civil Forfeitures

Matthew T. Mangino

The Legal Intelligencer

February 28, 2019

Opponents of civil asset forfeiture laws recently scored a big victory before the U.S. Supreme Court.

Those alarmed by the expansion of civil asset forfeiture often cite the risk for abuse because in many states, like Pennsylvania, law enforcement have an incentive to seize property, as they receive some or all of the proceeds from its sale.

According to the American Civil Liberties Union (ACLU), in the last decade Pennsylvania law enforcement has confiscated over $100 million in private property through civil asset forfeiture.

The U.S. Supreme Court ruled Feb. 20, that the Eighth Amendment’s ban on excessive fines applies to the states through the due process clause of the 14th Amendment.

The court ruled on behalf of Tyson Timbs, who was fighting the civil forfeiture of his $42,000 Land Rover after he used it to sell heroin to undercover officers. The maximum fine for the drug charge was $10,000.

The Indiana trial court found that Timbs used the Land Rover to facilitate a crime, but found that the forfeiture of the vehicle “would be grossly disproportionate to the gravity of Timbs’ offense, hence unconstitutional under the Eighth Amendment’s excessive fines clause.”

On appeal, the Indiana Supreme Court held that the excessive fines clause only constrains federal actions and is not applicable to the states.

During the infancy of the United State of America—following the ratification of the Constitution—James Madison introduced 20 proposed amendments to the Constitution. Twelve of those amendments were approved by the Congress and 10 were ratified by the states.

Those 10 amendments were enacted in 1791 and became known as the Bill of Rights. The Eighth Amendment, is simple and straightforward. The Eighth Amendment provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Following the Civil War, the 14th Amendment extended the protections of the Bill of Rights to the states. The U.S. Supreme Court has already decided that the Eighth Amendment provisions prohibiting “excessive bail” and “cruel and unusual punishment” apply to the states through the Fourteenth Amendment.

Both provisions have been held to be “fundamental to our scheme of ordered liberty” with “deep roots in our history and tradition.”

In Timbs v. Indiana, 586 U.S. ___ (2019), the court was asked to decide if the 14th Amendment incorporated the excessive fines clause of the Eighth Amendment to the states.

Last fall, the Pennsylvania Supreme Court was asked to determine an issue relating to asset forfeiture. The court held that there is no common-law power to take property through civil forfeiture.

Justen Irland was arrested in Adams County when he allegedly brandished a handgun to another driver during a road rage incident. Irland pleaded guilty to disorderly conduct, a summary offense, and was fined $200.

The state also confiscated his gun. Although there was no statute authorizing the government to use civil forfeiture to take property connected to the crime of disorderly conduct, the Adams County District Attorney’s Office argued that it had inherent “common law” authority to use civil forfeiture to take and keep property that law enforcement believed was connected to any crime—even disorderly conduct.

Under Pennsylvania’s civil asset forfeiture laws, the government can legally take property it claims is connected to illegal activity without convicting, or even charging, the property owner of a crime.

Police and prosecutors who make decisions about when to pursue civil forfeiture can keep all of the forfeited funds for their own budgets. Pennsylvania law enforcement officials have a direct financial incentive in pursuing forfeitures.

The Pennsylvania Supreme Court concluded that there is “no historical foundation establishing common law civil forfeiture in the commonwealth and that civil forfeiture of derivative contraband requires statutory authorization,” see Commonwealth v. Irland, 32 MAP 2017.

In Timbs, the U.S. Supreme Court acknowledged that by 1787 the constitutions of eight states—about 70 percent of the population—expressly prohibited excessive fines. By 1868, 90 percent of the country’s population lived in a state that prohibited excess fines. Today, all 50 states have a constitutional provision prohibiting the imposition of excessive fines.

Justice Ruth Bader Ginsburg announced the decision for the court in Timbs, saying that the Eighth Amendment’s excessive fines clause protects against government retribution.

“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” Ginsburg wrote.

Ginsburg continued, “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies.”

All states and the federal government allow law enforcement to seize and forfeit cash, property and other materials they believe are associated with illegal activity, reported the National Conference of State Legislatures.

Once property has been seized, prosecutors file civil actions seeking to forfeit property suspected of being involved in illegal activity. The action is typically against the property—not the person—and can be seized regardless of what happens on the criminal side of the case.

In Timbs, the state of Indiana attempted to make the argument that “in rem” actions, against the property itself and not the owner, are beyond the reach of the excessive fines clause. In Austin v. United States, 509 U.S. 602 (1993), the court specifically held that civil in rem forfeitures fall within the clause’s protection when they are at least partially punitive. The high court chose not to revisit that decision in Timbs.

The concern over abuse of civil forfeitures statutes is being gradually addressed by state legislatures across the country. North Carolina, New Mexico and Nebraska have abolished civil forfeiture, according to the National Conference of State Legislatures.

Eleven states, California, Connecticut, Iowa, Minnesota, Missouri, Montana, Nevada, New Hampshire, Ohio, Oregon and Vermont—require a criminal conviction—proof beyond a reasonable doubt—to engage in some or all forfeiture proceedings.

Ginsburg plainly set forth the fundamental concern with civil asset forfeitures when she suggested, “Fines may be employed ‘in a measure out of accord with the penal goals of retribution and deterrence,’ for ‘fines are a source of revenue,’ while other forms of punishment ‘cost the state money.’”

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.

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Justice Thomas questions landmark decision Gideon v. Wainright

U.S. Supreme Court Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined with Supreme Court liberals on Wednesday in ruling for an Idaho inmate who claimed ineffective assistance by his lawyer, reported the ABA Journal.

The court ruled 6-3 for Gilberto Garza Jr., who waived his right to appeal in two plea agreements, then changed his mind and told his lawyer to file an appeal.

The lawyer did not file the appeal notice because of the waiver, and the deadline passed. In a petition for post-conviction relief, Garza argued that his lawyer had provided ineffective assistance.

To prove ineffective assistance, defendants must show that their lawyer’s representation fell below an objective standard of reasonableness, and that the deficiency was prejudicial to the defense.

The issue was whether Garza was entitled to a presumption that his lawyer’s failure to file the notice caused prejudice, a presumption that had been recognized in a 2000 case in which there was no appeal waiver. The prior case was Roe v. Flores-Ortego.

The Supreme Court said Garza could rely on the presumption. “We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver,” wrote Justice Sonia Sotomayor for the majority.

An appeal waiver is not an absolute bar to all appellate claims, Sotomayor said. The language of appeal waivers can vary widely, and some leave many types of claims unwaived. Prosecutors may also forfeit or waive the waiver. And some waivers can be challenged; an unknowing or involuntary waiver is not enforced, for example.

“Accordingly, a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest,” Sotomayor said.

Sotomayor also said filing an appeal notice is purely a ministerial task, and substantive claims don’t have to be raised at this stage.

In an amicus brief, the federal government argued that a defendant who signs an appeal waiver should have to show there were nonfrivolous grounds to appeal. That argument can’t be squared with Supreme Court precedent, Sotomayor said.

“This court has already rejected attempts to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit,” Sotomayor wrote. “The more administrable and workable rule, rather, is the one compelled by our precedent: When counsel’s deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal.”

Justice Clarence Thomas dissented in an opinion joined by Justice Neil M. Gorsuch and partly joined by Justice Samuel A. Alito Jr.

Thomas said Garza’s lawyer “quite reasonably declined to file an appeal,” recognizing that it could jeopardize the plea bargain. The majority opinion finding per se deficient performance and per se prejudice creates a “defendant-always-wins” rule, he said.

Alito did not join a section of Thomas’ opinion that implied Gideon v. Wainright (1963) had been wrongly decided. In the section, Thomas, joined by Gorsuch, said “the Sixth Amendment appears to have been understood at the time of ratification as a rejection of the English common-law rule that prohibited counsel, not as a guarantee of government-funded counsel.”

Thomas went on to say, “our precedents seek to use the Sixth Amendment right to counsel to achieve an end it is not designed to guarantee. The right to counsel is not an assurance of an error-free trial or even a reliable result. It ensures fairness in a single respect: permitting the accused to employ the services of an attorney.”

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The Vindicator: Ohio joins growing number of states stopping executions

Matthew T. Mangino

The Youngstown Vindicator

March 3, 2019

In late January, Ohio’s newly-elected governor, Mike DeWine, granted a six-month reprieve to Warren Keith Henness. Recently, DeWine halted all executions in the state until the Department of Rehabilitation and Correction is able to develop a new execution protocol approved by the courts. Ohio joins Pennsylvania and six other states with some sort of formal hold on executions.

DeWine’s “moratorium” on executions comes in response to Dayton Federal Magistrate Judge Michael Merz’s opinion suggesting the state’s current three-drug execution protocol is a combination of “waterboarding and a chemical fire.”

“If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering ... enough to constitute cruel and unusual punishment,” wrote Judge Merz.

He did not stop Henness’ execution but De- Wine, who sponsored Ohio’s capital punishment law as a state senator in 1981 and later represented the state in death-penalty cases as attorney general, did.

This is not Judge Merz’s first shot at Ohio’s death penalty. Two years ago, he ruled that there was a “substantial risk of serious harm” in using midazolam, a sedative for executions. He granted an injunction blocking all executions.

A three-judge panel of the 6th U.S. Circuit Court of Appeals ruled 2-1 to uphold the injunction. The panel also barred the use of any protocol that contained potassium chloride, which stops the heart, and any drug that acts as a paralytic agent.

The case returned to the 6th Circuit to be heard en banc – all of the judges would rehear the case. This time, in an 8-6 ruling the 6th Circuit rejected Merz’s injunction.

Twice in two years Judge Merz found lethal injection in Ohio violated the Eighth Amendment’s ban on cruel and unusual punishment. This is in spite of a 2008 U.S. Supreme Court decision out of Kentucky that ruled lethal injection was not cruel and unusual punishment. In fact, the Supreme Court has never found a method of execution to be cruel and unusual. That list includes hanging, firing squad, electric chair and gas chamber.

This latest twist in Ohio’s death-penalty saga is in stark contrast to the state’s recent history with the death penalty. Between 2009 and 2011, Ohio carried out 17 executions second only to Texas, a state that has carried out more executions than the other top five states combined.

Four of those 17 men executed – Jason Getsy, Kenneth Biros, Mark Brown and Roderick Davies – were from either Trumbull or Mahoning counties.

There is real concern about Ohio’s death chamber. The state has had its share of executions gone awry.

In 2009, Romell Broom was scheduled to be executed. Corrections officials tried for two hours to maintain an IV for injecting the lethal drugs, reported the Washington Post. Finally, Ohio Gov. Ted Strickland intervened. Broom survived his execution and remains on death row today.

In 2014, Ohio became the first state in the nation to use a new and untried lethal-injection protocol involving midazolam and hydromorphone, a sedative and morphine derivative.

It did not go well. Convicted killer Dennis McGuire took 25 minutes to die. Prior executions took about 12 to 15 minutes. McGurie appeared to gasp several times during the execution, according to the Cleveland Plain Dealer.

He made several loud snorting or snoring sounds during the time it took him to die. It was one of the long- est executions since Ohio resumed capital punishment in 1999, reported the Associated Press.

In November of 2017, 69-year-old Alva Campbell was scheduled to die by lethal injection. Campbell’s attorney said he watched as his client was stuck with needles four times in different parts of his body, and cried out in pain.

After about 25 minutes, Ohio Gov. John Kasich halted the execution, reported NBC News. For the second time in less than 10 years a condemned inmate in Ohio survived his execution. Campbell died of natural causes three months later.

DeWine did not say when he expects executions to resume, “[a]s long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio.”

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

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Massachusetts considering raising minimum age for adult crime to 20

Six years after Massachusetts lawmakers raised the upper age limit for juvenile court cases to 17, a legislative task force is studying whether to join Vermont in raising the age further, to as high as 20, except in certain violent crimes, Commonwealth Magazine reports, as reported by The Crime Report.

The state Senate passed a provision to raise the age as part of a criminal justice reform debate last session, but it was dropped in negotiations with the House. Instead, legislators ordered up the task force study, which is due to be completed July 1.

Criminal justice reform advocates say the “emerging adult” population, which encompasses younger adults still in the midst of neurological development, can be better served in the juvenile system than by being sent into the adult prison population.

The task force is also looking at how to tailor the adult criminal justice system to the science showing brain development continues well into people’s 20s. Newly elected Suffolk District Attorney Rachael Rollins, for example, points to a new program that the county’s sheriff started at the South Bay House of Correction creating a cellblock with programming structured around reducing recidivism for offenders under 25, with corrections officers trained in intervening in conflicts before resorting to traditional measures.

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Mangino quoted in Washington Post on Michael Cohen

Read my comment in the Washington Post on Michael Cohen cashing in on a Trump tell-all book.
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GateHouse: Social media drives fear of crime

Matthew T. Mangino

GateHouse Media

March 1, 2019

The good news this week, in the midst of a convicted felon accusing the President of the United States of essentially running a criminal enterprise, is that crime is down in this country - with maybe the exception of Pennsylvania Avenue.

Statistics released this week by the FBI revealed overall declines in the number of violent crimes and property crimes reported for the first six months of 2018 when compared with the first six months of 2017.

The Preliminary Semiannual Uniform Crime Report is based on information from nearly 15,000 law enforcement agencies from across the country. Violent crime is down dramatically from its high in the early 1990s. The most recent decline merely emphasizes that America’s streets are as safe as they have been in decades.

Drilling down on the FBI stats reveals that three of the offenses in the violent crime category - robbery, murder, and aggravated assault - showed decreases when data from the first six months of 2018 were compared with data from the first six months of 2017.

The number of robbery offenses decreased 12.5 percent, murder fell 6.7 percent, and aggravated assault is down 2 percent.

In addition, the overall number of violent crimes decreased in cities of all sizes. Law enforcement agencies in cities with populations of 1,000,000 and over decreased 2.8 percent.

Those numbers don’t seem to jibe with President Donald Trump’s declaration in his inaugural address that violent crime was experiencing its largest increase in nearly half a century and that the carnage must stop, “right here and now.”

The president’s continued rhetoric on the border “emergency” and the imminent threat to public safety posed by undocumented immigrants leads many Americans to believe that violence is out of control.

According to Politico, the decline in violent crime is so great that criminologists routinely refer to the period after the 1990s as “the great crime decline.” Annual homicide rates were about the same in 2016 as they were in 1960. Property crimes are lower than at any point since the 1960s.

Although violent crime rates continue to fall people are still afraid - why?

It has long been established that people who watch a lot of television tend to be more afraid of crime. A study released in December 2017 updates this phenomenon for the digital age. The study found that, for many people, time spent on social media appears to similarly heighten fears of being a crime victim, reported the Pacific Standard.

“Our results suggest that overall social media consumption plays an important role in increasing fear among young adults,” researcher Jonathan Intravia of Ball State University wrote in the journal Computers in Human Behavior.

Another recent study dispelled the notion of “dangerous neighborhoods.” According to CityLab, research found that around half of all crime complaints or incidents of gun violence are concentrated in about five percent of streets or blocks in a given city.

The rhetoric of fear, especially the politically expedient rants about crime and immigration - some of which appears to be generated from outside of the country - contributes to the finding that “overall social media consumption is significantly related to individuals’ fear of crime.”

Importantly, the researchers found social media usage raised fear levels mainly among those who generally feel safe in their neighborhood. According to Pacific Standard, this supports the idea that “media consumption may have stronger effects for individuals without personal experiences with crime and violence.”

Fear of crime is being driven by what we see and read not necessarily what we experience.
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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Seventy-year-old Texas man executed 30 years after murders

The 3rd Execution of 2019

Billie Wayne Coble received lethal injection at the Texas penitentiary in Huntsville for the August 1989 shooting deaths of Robert and Zelda Vicha and their son, Bobby Vicha, at separate homes in Axtell, northeast of Waco, reported the Houston Chronicle.

Coble, 70, once described by a prosecutor as having "a heart full of scorpions," was the oldest inmate executed by Texas since the state resumed carrying out capital punishment in 1982.

Asked to make a final statement, Coble replied: "That'll be $5."

He told the five witnesses he selected to be in attendance that he loved them, then again said: "That'll be $5." Coble nodded to the witnesses and added, "take care."

He gasped several times and began snoring.

As Coble was finishing his statement, his son, a friend and a daughter-in-law became emotional and violent. They were yelling obscenities, throwing fists and kicking at others in the death chamber witness area.

Officers stepped in and the witnesses continued to resist. They were eventually moved to a courtyard and the two men were handcuffed.

"Why are you doing this?" the woman asked. "They just killed his daddy."

While the witnesses were being subdued outside, the single dose of pentobarbital was being administered to Coble. He was pronounced dead 11 minutes later at 6:24 p.m.

Texas Department of Criminal Justice spokesman Jeremy Desel said the two men were arrested on a charge of resisting arrest and taken to the Walker County Jail.

The U.S. Supreme Court earlier Thursday turned down Coble's request to delay his execution.

His attorneys had told the high court that Coble's original trial lawyers were negligent for conceding his guilt by failing to present an insanity defense before a jury convicted him of capital murder.

A state appeals court had previously rejected Coble's request to delay Thursday's execution and the Texas Board of Pardons and Paroles turned down his request for a commutation.

Coble "does not deny that he bears responsibility for the victims' loss of life, but he nonetheless wanted his lawyers to present a defense on his behalf," his attorney, A. Richard Ellis, said in his appeal to the Supreme Court.

In Coble's clemency petition to the Board of Pardons and Paroles, Ellis said his client suffered from post-traumatic stress disorder stemming from his time as a Marine during the Vietnam War and was convicted, in part, due to misleading testimony from two prosecution expert witnesses on whether he would be a future danger.

Coble was the third inmate put to death this year in the U.S. and the second in Texas, the nation's busiest capital punishment state.

"This is not a happy night," McLennan County District Attorney Barry Johnson said. "This is the end of a horror story for the Vicha family."

J.R. Vicha, Bobby Vicha's son, said it would be a relief knowing the execution finally took place after years of delays.

"Still, the way they do it is more humane than what he did to my family. It's not what he deserves but it will be good to know we got as much justice as allowed by the law," said J.R. Vicha, who was 11 when he was tied up and threatened by Coble during the killings.

Prosecutors said Coble, distraught over his pending divorce, kidnapped his wife, Karen Vicha. He was arrested and later freed on bond.

A Vietnam veteran with no prior criminal convictions, Coble was sentenced to die the following year and has fought his case ever since. Now, he's one of the oldest prisoners on Texas's death row.

Coble and his wife, Karen Vicha, got married in the summer of 1988, according to court records. But their relationship quickly fell apart, and after a bizarre incident in which Coble hid in the woman's trunk and then kidnapped her Vicha pressed charges against him.

Though Coble was arrested, he made bail, and a few days later he showed up at Vicha's house. She wasn't home, but her kids were. Coble tied them up, then left to ambush the rest of the family, according to court records.

He shot and killed Robert and Zelda Vicha, as well as their son Bobby, a local police officer. Afterward, Coble boasted about it to his wife when she got home.

"Karen, I've killed your momma and your daddy and your brother," he said, according to court records, "and they are all dead, and nobody is going to come help you now." 

After letting the woman kiss her children goodbye, Coble took her on a wild ride, handcuffing her. He pistol-whipped her and drove to a deserted field where he threatened to rape her, according to court records.

As he left the field, a sheriff's patrol car started following them. Coble began stabbing Vicha's chin and face as he was driving, then rammed into a parked car in an apparent effort to kill himself, saying he didn't want to die in prison.

Officers cut the car door open to save Vicha and arrested Coble. He was convicted and sentenced to die. In 2007, he won a new sentencing hearing, but once again, he was sentenced to death. 

In order to hand down a death sentence in Texas, the state has to show that a defendant will be a future danger, even in prison. During Coble's resentencing, a state expert testified about his future dangerousness, and his defense team later challenged that finding by arguing that the testimony was "junk science."

The expert, Austin psychiatrist Dr. Richard E. Coons, had testified in 1990 that Coble would commit future acts of violence in prison. But Coble had behaved on death row, seemingly refuting the professional prediction. Yet prosecutors called Coons to testify again.

"Dr. Coons admitted that his methodology could not be traced to a particular textbook or professional journal, nor could he cite even one authority or article that supported it," Coble's legal team wrote. "Coons had never gone back to check prison records of those he had testified against to see if his predictions were accurate, and consequently had no idea of his own accuracy rate."

In Coble's case, prosecutors argued that there was enough other evidence of future dangerousness that Coons' testimony didn't matter. Despite a spotless prison record for three decades, state and federal judges turned down Coble's appeals, and later the U.S. Supreme Court did, too.

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