Beltway sniper Malvo's life sentence reaches SCOTUS

The Supreme Court said it will consider whether Lee Boyd Malvo, the teenage half of the Beltway snipers who terrorized the Washington region 16 years ago, may challenge his sentence of life in prison without parole, reported the Washington Post.

Malvo, 34, was a 17-year-old when he and John Allen Muhammad committed what Virginia officials called “one of the most notorious strings of terrorist acts in modern American history.” Between Sept. 5 and Oct. 22, 2002, Muhammad and Malvo killed 10 people and wounded others in sniper attacks in Virginia, Maryland and the District of Columbia.

Muhammad was executed in 2009, but Malvo received sentences of life without parole in Virginia and Maryland.

The Supreme Court’s actions involve the Virginia sentences and will be heard in the term that starts in October.

After a 2003 trial in which Malvo was convicted of shooting FBI analyst Linda Franklin outside a Fairfax County Home Depot store, a jury decided against the death penalty. Instead, it recommended life imprisonment without the possibility of parole.

Since then, the Supreme Court’s jurisprudence on juvenile murderers has changed. It said the death penalty was off-limits for juveniles, and in 2012 said that mandatory life sentences without the possibility of parole were unconstitutional for those under 18.

A divided court found that sentencing a child to life without parole is excessive for all but “the rare juvenile offender whose crime reflects irreparable corruption.” In sentencing defendants 17 and younger, judges must now consider whether a juvenile’s crime reflects “irreparable corruption” or simply “the transient immaturity of youth.”

The court has also said the rulings are retroactive.

Some courts have interpreted the rulings to mean that mandatory life without parole laws are unconstitutional, but that those that offer a judge discretion are not. The Virginia Supreme Court ruled against Malvo.

But a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond said it was clear Malvo deserved a new sentencing: No judge ever considered whether Malvo’s crime represented “irreparable corruption.”

The unanimous panel said that the Beltway shootings “were the most heinous, random acts of premeditated violence conceivable, destroying lives and families and terrorizing the entire Washington, D.C., metropolitan area for over six weeks, instilling mortal fear daily in the citizens of that community.”

But, “Malvo was 17 years old when he committed the murders, and he now has the retroactive benefit of new constitutional rules that treat juveniles differently for sentencing,” the judges concluded.

The Virginia Supreme Court had found the commonwealth’s laws were not incompatible with the U.S. Supreme Court’s rulings because “Virginia law does not preclude a sentencing court from considering mitigating circumstances, whether they be age or anything else.”

There are similar splits around the country.

Malvo’s Maryland sentences were upheld in 2017. A state court judge said that the sentencing judge had specifically taken into account Malvo’s age and other mitigating factors — Malvo was brought illegally into the country by Muhammad, who was 25 years his senior and masterminded the attacks — in deciding he deserved life imprisonment.

That decision is on appeal to Maryland’s highest court. In addition, Malvo has challenged his sentences in federal court in Maryland.

The Supreme Court case is Mathena v. Malvo .
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Justice Sotomayor raises concern over race in death penalty appeal

The U.S. Supreme Court denied the latest petition from a black Georgia death row inmate who is claiming juror racial bias, prompting an angry statement from Justice Sonia Sotomayor, reported the National Law Journal.

Sotomayor agreed that the denial may have been justified because the latest decision of the U.S. Court of Appeals for the Eleventh Circuit in Keith Tharpe’s case did not turn on the merits of his claim, but rather on procedural issues.

But Sotomayor, who has raised concerns about capital cases in the recent past, said she was “profoundly troubled by the underlying facts of this case.” Sotomayor wrote:

“I therefore concur in the court’s decision to deny Tharpe’s petition for certiorari. As this may be the end of the road for Tharpe’s juror-bias claim, however, we should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.”

Sotomayor recounted the statements made in an affidavit by a white member of the jury, Barney Gattie, who has since died, that “there are two types of black people: 1. Black folks and 2. Niggers” and that Tharpe, “who wasn’t in the ‘good’ black folks category in [his] book, should get the electric chair for what he did.”

Tharpe, Sotomayor noted, has not received a hearing on the merits of his racial-bias claims. Gattie’s statements, Sotomayor wrote, “amount to an arresting demonstration that racism can and does seep into the jury system. The work of ‘purg[ing] racial prejudice from the administration of justice’ … is far from done.”

Tharpe was convicted of murder and two counts of kidnapping in the September 1990 death of Jaquelyn Freeman.

The high court blocked Tharpe’s execution in a per curiam decision in January, asserting that Gattie’s statement “presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.” The court sent the case back to the Eleventh Circuit, over the dissent of Justice Clarence Thomas.

In a column published last month by The National Law Journal, Samuel Spital, director of litigation at the NAACP Legal Defense & Educational Fund, said Tharpe’s petition “is the one thing standing between Tharpe and execution.” He urged the justices to “intervene in Tharpe’s case and prevent the state of Georgia from executing Tharpe before any court has considered the compelling evidence that Tharpe was sentenced to death, at least in part, because he is black.”

Tharpe is represented by Brian Kammer and Marcia Widder of the Atlanta-based Georgia Resource Center.

“Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice,” Widder said in a statement. “What happened in Mr. Tharpe’s death penalty case was wrong. There is compelling evidence that a juror who voted for Mr. Tharpe’s death sentence was influenced by racist beliefs he held about African Americans in general and Mr. Tharpe in particular.”

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'Shooting the bird' at police officer protected speech

If you've ever been tempted to make a rude gesture at a police officer, you can rest assured that the Constitution protects your right to do so, a federal appeals court says, reported NPR.

In the sequence of events described by the court, a woman in Michigan, Debra Cruise-Gulyas, was pulled over in 2017 for speeding. The officer showed leniency, writing her up for a lesser violation known as a nonmoving violation. As she drove away, apparently insufficiently appreciative of the officer's gesture, Cruise-Gulyas made a certain gesture of her own. Or as the court put it, "she made an all-too-familiar gesture at [Officer Matthew] Minard with her hand and without four of her fingers showing."

Minard was not amused. He pulled her over again and rewrote the ticket for speeding. Cruise-Gulyas sued, arguing she had a First Amendment right to wiggle whatever finger she wanted at the police.

In a ruling this week, the U.S. Court of Appeals for the 6th Circuit agreed. "Fits of rudeness or lack of gratitude may violate the Golden Rule," wrote Judge Jeffrey Sutton for the 3-0 panel. "But that doesn't make them illegal or for that matter punishable."

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GateHouse: Driver’s license suspension short-sighted and counterproductive

Matthew T. Mangino

GateHouse Media

March 15, 2019

In 1999, Steve Smith was charged in Pennsylvania with underage drinking. He was 14-years-old. Steve Smith is not his real name, but his story is real and tragic.

The penalty for underage drinking in Pennsylvania includes a driver’s license suspension. Due to Smith’s poor decision as a child he was ineligible for a license when he turned 16. Smith never got a driver’s license, but he drove.

He was convicted of driving under suspension in 2003 and again in 2006. Each time his suspension was extended. In 2013 he was convicted of driving without a license. Earlier this year he was arrested again for driving under suspension.

Now, Smith gainfully employed for more than nine years, married and the father of four children faces six months in jail - 21 years after a youthful indiscretion.

Suspending an individual’s driver’s license for non-driving offenses is short-sighted and counterproductive.

In Smith’s case it was for conduct as a 14-year-old. For some it may be the result of using marijuana, failing to pay parking tickets or being too poor to pay non-traffic fines or court costs.

In Alabama, a federal lawsuit was recently filed challenging the practice of suspending the driver’s licenses of people who cannot pay traffic tickets as a violation of the 14th Amendment by “punishing persons simply because they are poor.”

According to The Associated Press, the federal lawsuit seeks to prohibit the suspension of driver’s licenses for nonpayment of fines. The suit also asks the court to require state agencies to reinstate any driver’s license previously suspended for nonpayment.

A U.S. Department of Justice investigation of the police in Ferguson, Missouri - known for the violent unrest after a police officer involved killing of an unarmed black teen - “found that in Ferguson, a small city with a population of just 21,000, more than 16,000 people had outstanding arrest warrants issued by the court as of December 2014,” with many of those warrants having “nothing to do with criminal behavior.”

A recent forum at the John Jay College in New York entitled “Cash Register Justice” explored the exploitation of the poor to finance criminal justice costs through onerous fines and court costs for otherwise minor offenses.

Research data shared at the forum, suggested that in May 2018, an estimated 7 million Americans had their driver’s licenses suspended because of unpaid fines and fees. According to The Crime Report, 85 percent of Americans drive themselves to work.

Forty-three states have laws that suspend driver’s licenses, revoke licenses, or deny renewals for unpaid fines and fees. Defenders of these practices claim that this is the only coercive tool at their disposal, but The Crime Report points to statistics that say it does not work.

Last year Mississippi stopped suspending people’s driver’s licenses purely because they had not paid court fines and fees. Licenses in Mississippi continue to be suspended for people who do not respond to citations or if a judge holds someone in contempt for failing to pay fines.

A recent California study found “a litany of practices and policies that turn a citation offense into a poverty sentence,” with add-on fees for minor offenses sometimes doubling or quadrupling the original fines. According to NPR, the report says that once a person’s license is suspended, they become even more unable to pay their debts, entering “long cycles of poverty that are difficult, if not impossible to overcome.”

In some states, the court will let an offender spend time in jail in exchange for paying a fine or court costs - a debtor’s prison for those cloaked in poverty and unable to pay.

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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California governor imposes moratorium on execution

California Governor Gavin Newsom signed an executive order putting a moratorium on executions in the state, reported Jurist.

In a statement, Newsom explained the decision:

The death penalty has been an abject failure. It discriminates based on the color of your skin or how much money you make. It’s ineffective, irreversible, and immoral. It goes against the very values that we stand for.

This month, Ohio's governor put a halt to all executions due to problems with lethal injection.

The executive order calls for immediate withdrawal of California’s lethal injection protocols and closure of the state’s unused execution chamber.

While the order does not release any current inmates, the governor hopes to commute death sentences and ultimately repeal capital punishment in the future.

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Forensic genealogy is being used by police to solve crime

Forensic genealogy exploded into public awareness when Joseph DeAngelo was arrested for the crimes associated with the Golden State Killer case, which involved a dozen murders and more than 50 rapes committed in California between 1976 and 1986. Headlines proclaimed, “A Popular Genealogy Website Just Helped Solve a Serial Killer Cold Case,” and “The Future of Crime Fighting Is Family Tree Forensics.” Relatives of victims breathed sighs of relief that the perpetrator had finally been identified and caught. Law enforcement professionals and dedicated internet sleuths were also excited—not just because long-dormant criminal cases were being solved, but also because of how they were being solved. And by whom.

Forensic genealogy can best be described as a still-nascent technique of forensic science that combines DNA analysis and family-tree building, reported Topic. (The TV pitch would be a cross between the documentary series Forensic Files and Who Do You Think You Are?, in which celebrities explore their family trees.) Its specific alchemy results when the field of genetic genealogy—which uses DNA testing to help people discover and identify their ancestors—is applied to legal and investigative issues, like the tracking down of missing heirs, adoptive parents, and siblings, the assigning of names to the unidentified remains of soldiers, and now the cracking of cold cases.

“You always hear the phrase ‘hiding in plain view.’ That’s what this guy was doing.”

It is also a specialty of Parabon NanoLabs, which has successfully identified more than 30 suspects in cold cases since May 2018, establishing itself as the go-to service for forensic genealogy. The company was originally founded in 2008 by computational scientist Steven Armentrout and chemist Michael Norton to develop products for analyzing the tiniest amounts of DNA and applying them in cancer research, developing new vaccines, and creating novel synthetic drugs. The Department of Defense had funded the initial research that became Snapshot; law enforcement requests came later, with the Fort Wayne police becoming one of Parabon’s earliest clients in 2015.

When I studied forensic science at John Jay College of Criminal Justice in the early 2000s, I toiled—with mixed results, at best—on DNA research that convinced me I was better off far away from the laboratory, writing about crimes rather than solving them. As DNA testing became more sophisticated, gleaning results from microscopic samples that were once thought untestable, I got excited at the possible ramifications with respect to cold cases both famous (Zodiac Killer, anyone?) and unknown.

What also stands out about the rapid rise of forensic genealogy is that the work was, for years, the domain of amateur genealogists. These genealogists toil in archives and databases first for themselves, then for others who enlist their help to solve mysteries and unknowns in their family trees.

Only a handful of these genealogists, however, have the requisite expertise and background needed to resolve cold cases like those that Parabon takes on. Colleen Fitzpatrick, a 63-year-old physicist who coined the term “forensic genealogy” in the mid-2000s, is one of these experts. Fitzpatrick concentrates almost exclusively on unidentified remains, and she most recently cofounded the DNA Doe Project with amateur genealogist Margaret Press. So, too, is Barbara Rae-Venter, 70, the California-based genetic genealogist who worked with the FBI and with various divisions of state law enforcement to pinpoint the identity of the Golden State Killer. (Neither genealogist has worked with Parabon.)

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Arkansas legislature seeks to keep secret lethal injection suppliers

The Arkansas Senate on voted 25-9 in favor of measures to prevent the release of information that could identify manufacturers and suppliers of drugs used during state executions, reported Jurist.

The Senate justified its move to increase drug secrecy by citing a “well-documented guerilla war being waged against the death penalty,” where anti-death penalty advocates pressure pharmaceutical makers to “refuse to supply the drugs used by states to carry out death sentences.” By shielding the details about the drug cocktail used in executions, Arkansas seeks to reduce this pressure and re-establish its access to drugs necessary for lethal injections.

Opponents of the bill are disappointed by the lack of transparency this change would entail. If passed into law, the Arkansas Code § 5-4-617(i)-(l) would be amended to prevent disclosure to requests made under the Freedom of Information Act and in response to discovery under Arkansas Rules of Civil Procedure. The bill would also introduce a new Class D felony for anyone who recklessly shares information that violates this imposed secrecy.

Republican Governor Asa Hutchinson supports this new legislation. The bill now goes to the Arkansas House for consideration.

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