WASHPOST: Manafort sentence stiffer than most bank-fraud cases

Paul Manafort’s prison sentence of less than four years on bank- and tax-fraud charges sparked outrage from commentators who said it was too light a punishment for his crimes, reported the Washington Post.

But a review of data for all 452 similar cases nationwide in fiscal 2018 show President Trump’s former campaign chairman received a sentence that was somewhat stiffer than other federal defendants’ prison terms.

The average prison sentence in such bank-fraud cases was about 31 months, roughly 16 months shorter than the 47 months Manafort received for convictions in federal court in Northern Virginia, according to an analysis of court data maintained by Syracuse University’s Transactional Records Access Clearinghouse (TRAC).

But Manafort, who was convicted by a jury in August 2018, fared much better when compared with other defendants who were also convicted by federal juries.

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Drug, Alcohol, Suicide Deaths in U.S. Highest Since 1999

According to The Crime Report, the number of deaths from alcohol, drugs and suicide in 2017 hit the highest level since the collection of federal mortality data started in 1999, according to an analysis by two public health nonprofits, the Trust for America’s Health and the Well Being Trust reported by the New York Times. The two groups parsed the latest data from the federal Centers for Disease Control and Prevention.  More than 150,000 Americans died from alcohol and drug-induced fatalities and suicide in 2017. Nearly a third — 47,173 — were suicides. The grim statistics are fueled by synthetic opioid deaths. Twenty years ago, fewer than 1,000 deaths a year were attributed to fentanyl and synthetic opioids. In 2017, more than 1,000 Americans died from synthetic opioid overdoses every two weeks, topping 28,000 for the year. Most of the increase occurred in the preceding five years, when such deaths rose tenfold and the opioid epidemic became the leading cause of death for Americans under 55.

West Virginia and New Mexico had the highest number of deaths, the analysis showed, with Mississippi and Texas the lowest. By region, the Northeast had the highest opioid death rates followed by the Midwest. The South’s rate was nearly half that of the Northeast. John Auerbach of Trust for America’s Health said that though doctors and drug companies have been taking steps to control opioid addictions, patients who are addicted to prescription opioids often shift to synthetic ones, like fentanyl, which is 50 times more potent than heroin. Fentanyl has also snaked its way into other drugs like cocaine, Xanax and MDMA, widening the epidemic. Suicides by gun increased 22 percent over the last decade. Guns were used in nearly half of the nation’s 47,173 suicides in 2017.

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Don't look for SCOTUS on TV anytime soon

Despite public support for televising Supreme Court hearings, the ban will remain for the foreseeable future and the issue isn’t much of a topic of conversation among the justices, two of them told a House appropriations subcommittee, reported the Washington Post.

Justices Samuel A. Alito Jr. and Elena Kagan both said they thought before joining the court that hearings should be televised. But Alito said it was the collective agreement of the court that attorney grandstanding would be “irresistible” and undermine “our paramount function, which is to decide cases in the best possible way.”

He said he knew that view was not popular.

“I recognize most people think that our arguments should be televised,” he said. “Most of the members of my family think the arguments should be televised.”

 The question of whether the justices should televise hearings of their oral arguments is a perennial issue, and subcommittee chairman Rep. Mike Quigley (D-Ill.) gently pursued it.

“Most Americans have no idea how Supreme Court proceedings even work,” Quigley said, adding it was impossible for most to attend oral arguments, even though they are open to the public. But he acknowledged there was little Congress could do to force the issue on an equal branch of government.

“Clearly, it’s your decision,” he said.

While the issue animates others, it does not appear to consume the court. Kagan said the justices as a group have not discussed it since she joined the court in 2010.

Kagan said that when she observed the court as President Barack Obama’s solicitor general she thought it would be good for the public to see what she saw.

“It was thoughtful and it was probing and it was obvious that the justices really wanted to get things right,” Kagan said. “And it’s no small benefit if the American public were able to see that.”

But she now believes justices might “filter” themselves if they worried that playing devil’s advocate during arguments might be interpreted in a video clip as being biased.

If seeing the court at work “came at the expense of the way the institution functioned, that would be a very bad bargain,” she said.

Cameras are ubiquitous in state supreme courts, and many federal appeals courts allow them. Those who support more transparency say none of the problems the justices imagine have come to pass.

“It’s a bit disingenuous for Justices Alito and Kagan to state calmly, in front of several video cameras and a dais full of attorneys, that cameras in their courtroom would somehow impact the tone of their hearings, especially since concerns over grandstanding haven’t proven true in other appeals courts that do allow video,” said Gabe Roth of Fix the Court, one of the groups that favor cameras.

Instead, he said, showing the court at work “would do wonders to correct the American people’s often biased perception of our nation’s top court.”

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Trial Analyst Matthew Mangino Talks about the Jury Requirements for Law and Crime Network

GateHouse: Justice Thomas’ assault on precedent continues

Matthew T. Mangino

GateHouse Media

March 8, 2019

More than a half a century ago the U.S. Supreme Court handed down the landmark decision of Gideon v. Wainwright. In Gideon, the High Court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.

The decision is recognized as one of the most important of the 20th century. The decision brought into the national lexicon a line known by anyone who has ever watched a television crime drama, ”(Y)ou have the right to an attorney if you cannot afford an attorney, one will be appointed for you ...”

Today, Gideon is under attack. There is, at this point, one pretty powerful guy who thinks Gideon, and a series of other decisions were “incorrectly” decided. The Supreme Court precedents, attacked by Justice Clarence Thomas, sound like a who’s who of landmark decisions from the Warren Court of the 1960s

In a decision last week, the U.S. Supreme Court ruled 6-3 for Gilberto Garza Jr., who waived his right to appeal after entering a guilty plea, then instructed his attorney to appeal.

The appeal deadline passed without an appeal, and Garza challenged his lawyer’s representation, arguing his counsel had provided ineffective assistance of counsel - the Supreme Court agreed.

In a dissenting opinion, Justice Thomas implied Gideon had been wrongly decided in 1963. Thomas, joined by Justice Neil Gorsuch, said “our precedents seek to use the Sixth Amendment right to counsel to achieve an end it is not designed to guarantee.” Thomas disagrees with the idea that indigent defendants have a right to counsel. He suggests the Sixth Amendment only permits “the accused to employ the services of an attorney.”

This is only the most recent attack by Thomas on long established precedent. Last month, he suggested the Supreme Court reconsider New York Times v. Sullivan the 1964 decision that provided the press with broad First Amendment protections against libel suits brought by public officials. Thomas wrote, “New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”

In a 2018 Fourth Amendment case in which the court refused to expand the automobile exception to the search of areas immediately around a home, Thomas questioned whether the exclusionary rule should have been extended to the states.

In 1961, through the iconic case of Mapp v. Ohio the U.S. Supreme Court extended a federal remedy to state courts in an effort to squelch unconstitutional police action - the exclusion of illegally obtained evidence from admission in a criminal prosecution.

Cleveland police officers went to the home of Dollree Mapp looking for a suspect in a criminal investigation. Mapp refused to let the police in without a warrant.

The police left, when they returned they were armed with a “fake” warrant. Chicanery took the place of real police work. Instead of going to a judge to get a warrant, the police drew up their own. After entering Mapp’s home, police conducted a search and confiscated obscene material resulting in Mapp’s arrest.

The High Court excluded from trial the illegally confiscated obscene material.

In another Fourth Amendment case, this one from 2017, dealing with cell phone location data, Thomas challenged the “reasonable expectation of privacy” test first articulated in Katz v. United States in 1967. Thomas wrote, “The Katz test has no basis in the text or history of the Fourth Amendment. Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence.”

With the court’s growing Conservative block, Thomas may someday realize his desire to rewrite the Court’s interpretation of some of the Constitution’s most fundamental rights.

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 prison population shrinking, medical costs rising

Pennsylvania’s prison population may be shrinking, but its costs aren’t, reported the Pennsylvania Capital Star.

One reason, according to Corrections Secretary John Wetzel, is a growing number of elderly inmates.

In a hearing before the Senate Appropriations Committee Thursday, Wetzel said the state’s aging prison population “100 percent has to do” with his department’s rising medical costs. He said Pennsylvania needs to create a medical parole program to allow sick and aging people to spend their final days outside of prison.

The vast majority — $2 billion — of DOC’s $2.7 billion budget goes toward personnel costs, Wetzel said. This year, they’re asking for a $15 million increase for medical funds to treat elderly patients and rising rates of Hepatitis C.

Pennsylvania’s elderly prison population has increased from 6 percent of its general prison population in 1996 to 22 percent today, Wetzel said.

Wetzel said different agencies define elderly inmates as those who are at least 50 or 55 years old. But as Sen. Lisa Baker, R-Luzerne, pointed out, incarceration accelerates aging-related health complications.

Elderly inmates are more likely than members of the general population to suffer from “cardiac disease, high blood pressure, hepatitis C, diabetes, and other chronic diseases,” according to a Pew Stateline article.

Since federal law prohibits incarcerated persons from receiving Medicaid coverage, the DOC shoulders their healthcare and prescription costs. Eighty-four percent of Pennsylvania’s elderly prisoners take medication, compared to 26 percent in the non-elderly population, Wetzel said.

In all, the annual cost of incarcerating people 55 or older can be two to three times higher compared to a non-elderly inmate, according to the National Institute of Corrections.

Pennsylvania does have a Compassionate Release program, but it only results in about three releases per year, Wetzel said. An inmate qualifies for compassionate release if a doctor certifies that he or she has just six months to live.

Relaxing the qualifications for compassionate release could allow more sick and elderly people to leave the corrections system as parolees, Wetzel said.

“Pennsylvania doesn’t have good medical parole program,” Wetzel said today. “There’s a real need for it here.”

In addition to medical parole, Wetzel said that Pennsylvania could also create secure, state-run residential nursing homes for paroled people.

They could be modeled after a program in Connecticut, he said, which allows paroled prisoners who are not deemed public safety risks to receive nursing home care.

Since the nursing home residents are parolees, and not inmates, their medical costs are partially covered by Medicare. The Connecticut facility was the first of its kind in the country to receive a certification from the Center for Medicare and Medicaid Services that qualified it for federal nursing home funding.

A bipartisan group of Pennsylvania lawmakers kicked off 2019 by calling for parole and probation reform, but their package of bills does not include any provisions for medical parole.

According to Wetzel, that’s not a problem.

He said any medical parole program that Pennsylvania passes should be developed in a separate bill, so that it doesn’t take support away from the parole and probation proposals currently before the General Assembly.

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Pennsylvania’s death penalty may be nearing its end

Pennsylvania’s death penalty is, by all accounts, embattled, reported Riley Yates of The Morning Call.

There hasn’t been an execution in two decades, even before Gov. Tom Wolf imposed a moratorium on them in 2015. The courts have long scrutinized death sentences, throwing out scores of them at appeal. And juries have become more hesitant to impose the state’s ultimate punishment. A long-awaited legislative study recently called for a host of reforms.

But a surprising factor is quietly contributing to the death penalty’s decline in Pennsylvania: Prosecutors are increasingly reluctant to pursue capital murder charges, given the high financial cost and lengthy legal battles they guarantee, and the improbability the sentences will ultimately be carried out.

In 2004, 40 percent of murder convictions in Pennsylvania started as death-penalty cases, according to a review of state data by The Morning Call. By 2017, that number had dropped more than threefold, to 12 percent of murder convictions, the lowest rate in 14 years.

“We are scrutinizing these decisions much more than ever before,” said Berks County District Attorney John T. Adams, the immediate past president of the Pennsylvania District Attorneys Association. “All of us are very cognizant of the fact that there’s a lot that we as prosecutors are asked to do as far as seeking the death penalty.”

The Morning Call’s figures offer a first accounting of the waning frequency with which the state’s 67 elected district attorneys pursue capital punishment, data that state government does not track. For its analysis, the newspaper reviewed 4,184 murder convictions in Pennsylvania from 2004 to 2017, using docket sheets, appellate court records and local media accounts to determine whether they were ever listed as capital cases.

The cases were identified through the Pennsylvania Commission on Sentencing, which provided every first-, second- and third-degree murder conviction reported to it by each county during the time period. That was supplemented with other murder cases identified through archived media reports, plus a smaller database of cases kept by the Atlantic Center for Capital Representation, a Philadelphia nonprofit that has tracked death-penalty prosecutions since 2011.

Pennsylvania limits the death penalty to cases of first-degree murder with at least one of 18 aggravating circumstances — for instance, the death of a police officer, a killing during a robbery, or a shooting that places others in grave risk of death. The Morning Call’s statistics focused on the beginning of those prosecutions and not the end: whether they resulted in plea bargains that avoided the death penalty, jury verdicts that rejected it, or death sentences, as was the case for 56 people sent to death row over the 14 years. The review did not account for cases that ended in acquittals, or convictions for lesser charges such as manslaughter.

The findings showed that in 2004, there were 309 murder convictions statewide, of which 123 started as death-penalty prosecutions. In 2017, there were 271 murder convictions, of which 33 saw the filing of capital charges.

The downward trend held generally year to year, though there were occasional bumps. It was driven by Philadelphia, which has long dominated Pennsylvania’s death-penalty cases, but was also seen in the rest of the state, though some individual counties such as Bucks, Chester and Lancaster saw little or no change.

And the numbers should only fall further in the coming years, amid the tenure of Philadelphia District Attorney Larry Krasner, a self-described progressive who took office in 2018 vowing to never pursue the death penalty.

Critics of capital punishment say it is costly, mistake-prone and unnecessary, especially considering the state’s other sentence for first-degree murder: life in prison without parole. They say the decline in prosecutions reflects a national trend against the death penalty, which six states have abolished in the past decade.

“Mostly it is just a recognition that it is a failed public policy,” said Marc Bookman, co-director of the Atlantic Center, which advises defense teams in death-penalty cases. “We’re seeing it more and more coming from elected officials, saying it is a failed public policy.”

Source: Pennsylvania Commission on Sentencing data, Pennsylvania court records and the Atlantic Center for Capital Representation. (Jesse Musto/The Morning Call)

But to one North Catasauqua woman whose family experienced murder in its worst forms, life in prison is not enough for some crimes. Susan Stahler is the aunt of Denise Merhi, one of four people butchered in 2010 in a Northampton home by Michael Eric Ballard, who is on death row. Ballard was on parole for a prior murder when he killed Merhi, his ex-girlfriend, along with her father, her grandfather and a neighbor who tried to help.

“You can say what you want about the death penalty,” Stahler said. “But until you have a loved one murdered, you can’t share your honest opinion."

In the death-penalty debate, there’s a divide over who is responsible for Pennsylvania’s impasse. Supporters of capital punishment blame an arduous appeals process, activist judges and what they characterize as overzealous tactics by anti-death-penalty lawyers.

“What do you do with a defendant who intentionally targets and assassinates police officers?” the Pennsylvania District Attorneys Association wrote in July in defense of the death penalty. “What do you do with a defendant who kills a grandmother and suffocates a baby in a suitcase for a few dollars? What do you do with a brutal serial killer that terrorizes communities?”

Greg Rowe, the association’s interim executive director, said prosecutors recognize the stakes are high with the death penalty, and that their decisions to seek it must reflect that.

“These cases are the exception, and they’re reserved for those small number of cases where the ultimate punishment is appropriate,” Rowe said.

In the 14 years analyzed by The Morning Call, 59 counties had at least one death-penalty prosecution. The statistics showed just how prevalent such cases have traditionally been in Pennsylvania: Across those years, one quarter of murder convictions originated as capital cases — 1,109 cases in total — even with the numbers in decline.

In 2004, half of Philadelphia’s murder convictions were at some point listed as capital cases, 69 of 134 cases. In 2017, that figure was 15 percent, representing 16 of 106 cases.

Outside of Philadelphia, 54 of 175 convictions in 2004 had death-penalty notices, or 31 percent. In 2017, the number was 10 percent, with 17 cases out of 165 murder convictions.

The downswing corresponds with a drop in the number of death sentences imposed by juries each year, according to state Corrections Department data. From 2004 to 2008, more than five convicted murderers a year were sent to death row on average. In the past five years, there were less than two a year.

Death sentences are falling across the nation, said Robert Dunham, a former federal public defender in Pennsylvania who now heads the Death Penalty Information Center, a Washington, D.C., nonprofit.

“Pennsylvania reflects that pattern,” Dunham said. “What we’re seeing is that prosecutors have realized these cases are likely to not result in a death sentence.”

Lehigh Valley cases

Declines in capital prosecutions were seen in Allegheny County, which includes Pittsburgh, and Montgomery, which is the state’s third largest county. Capital notices fell even in some counties that aggressively pursue the death penalty — including Lehigh and Northampton counties.

Lehigh County had 144 murder convictions in the 14 years, of which 60 involved death-penalty prosecutions. Of those capital cases, six out of 10 occurred in the first seven years analysed by The Morning Call — 36 cases in 2004-2010, versus 24 in 2011-2017.

Lehigh County District Attorney Jim Martin said any decline was driven by the facts of each case, and not the climate surrounding capital punishment. In that time, his office won one death verdict, when Junius Burno was sent to death row in 2007 for murdering two men in Allentown during a botched robbery.

If there is the presence of an aggravating circumstance, his office seeks — or “notices” — the death penalty, Martin said.

“If there isn’t, we don’t,” he added. “Every case is different and the fact that there are fewer doesn’t mean there’s been a change in philosophy necessarily.”

While it is harder to get a capital verdict than in the past, Martin said, “that doesn’t lessen my obligation as district attorney to look at the facts and look at the law and decide whether to seek it.”

Of Lehigh County’s death penalty cases, just over half — 31 — were resolved through plea agreements to third-degree murder, a lesser homicide charge that carries the prospect of parole. Three other cases ended in third-degree murder verdicts at trial.

Defense attorneys have long complained that prosecutors use the death penalty as a club to cudgel plea bargains. A typical sentence in the Lehigh County third-degree murder cases was 20 to 40 years in prison and the lowest was for eight to 16 years, for an accomplice who testified against his co-defendants.

Martin noted the challenges his office faces prosecuting street crime in Allentown amid reluctant witnesses and the rise of gangs.

“I’m not denying that it gives us leverage,” Martin said of the death penalty. “But I am denying that we notice it to give us that leverage.”

In Northampton County, there were 60 murder convictions in the 14 years; in 26 of those cases, prosecutors pursued the death penalty. Of those, 16 fell in 2004-2010, compared to 10 in 2011-2017.

But the last decade also marked one in which District Attorney John Morganelli won the county’s first two death sentences in a generation. In 2011, a jury sentenced Ballard, the Northampton mass murderer, to death. A year later, George Hitcho Jr. was sent to death row for shooting Freemansburg police officer Robert A. Lasso in the back of the head during a police call.

Like Martin, Morganelli said his approach to the death penalty hasn’t changed, and that he continues to believe in it, even with executions at a standstill.

“We’re realistic that it is not going to happen,” Morganelli said. “But if we have a clear death-penalty case — a police officer or whatnot — we’re going to pursue it.”

Pennsylvania has executed just three men in the modern era of capital punishment, and all three were volunteers who dropped legal challenges to their sentences in the 1990s. The last time an inmate was put to death against his will was in 1962.

But the death penalty has still carried a cost for taxpayers, with added expenses that begin before the cases go to trial and continue after the condemned are sentenced. Defense expenditures topped $143,000 in Northampton County’s most recent capital murder trial. Death row’s high security carries an increased corrections bill of $15,000 a year per inmate, according to a recent estimate by the state.

Northampton County has three pending capital cases that have yet to go to trial. Lehigh County also has three.

In Berks County, there are no pending death penalty cases. Adams, who became district attorney there in 2008, said he has become increasingly reluctant to seek it, despite success in winning those verdicts: There have been two in his tenure, plus a third in Berks County that was prosecuted by the state attorney general’s office.

Berks County had 127 murder convictions in the years The Morning Call analyzed, with aggravating circumstances filed in 22 of the cases. But among the convictions from 2011-2017, there were just five capital cases.

Adams points to the resources it takes to bring a death penalty case to trial, given the extensive investigations that defense teams must do. Because of that, capital trials are often delayed months or years, even as witnesses begin to go on with their lives, he said.

Adams also highlighted what he called the almost “overwhelming” amount of work it takes to uphold a death sentence at appeal, amid a stringent court process that can stretch decades.

“Prosecutors are only seeking it for the worst of the worst,” Adams said, adding that, “prosecutors throughout the state are scrutinizing the decision to seek it — much, much more.”

Amid that, the governor’s moratorium remains in effect, with little movement in the Legislature to take up capital punishment.

Wolf tied his decision to a Senate-commissioned report on the death penalty, a long-delayed study that was released in June after seven years of preparation. The report offered a raft of potential reforms, including calls for a state-funded capital defender’s office, and more protections to prevent the execution of the mentally ill and intellectually disabled.

Wolf will continue blocking executions until the death penalty’s problems are corrected, said J.J. Abbott, a spokesman for the governor.

“He looks forward to working with the General Assembly on their plans to address the report and its recommendations for legislative changes, all of which he believes should be debated and considered,” Abbott said in a prepared statement.

Whether there is momentum to take up the death penalty — either to repeal it or to fix it with an eye to resuming executions — remains unclear.

State Rep. Rob Kauffman, the chairman of the House Judiciary Committee, said he is open to re-examining capital punishment, considering its cost to taxpayers and the lack of executions. But he said it just isn’t a big topic in Harrisburg.

“There’s a lot that has been talked about regarding criminal justice reform, but this is not one of those front-burner issues,” said Kauffman, R-Franklin.

In the meantime, the number of inmates on death row continues to fall, as do the number of new death sentences.

In 2018, juries added only one killer to death row in Pennsylvania.

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