Trial Analyst Matthew Mangino appears on Law and Crime Network

Watch my appearance on Law and Crime Network discussing the trial of Lindsay Partin a babysitter in Ohio accused of murder.  To watch segment CLICK HERE

Mangino discusses Purdue Pharma Settlement on WFMJ-TV21 Weekend Today

To watch the interview: CLICK HERE

Supreme Court 'nibbles around the edges' of the death penalty

The headlines say the justices of the Supreme Court are “openly feuding” and “sniping” at one another over the death penalty. What they are in fact doing is nibbling around the edges, writes Kevin D. Williamson of the National Review.

Some opponents of the death penalty wish to see the Supreme Court declare it unconstitutional, and they are not too picky about how that gets done: not jurisprudence but jurispretext.

The problem with that is that the Constitution itself categorically sanctions capital punishment, for instance by specifying in the Fifth Amendment certain limitations on the conditions in which a person may be “deprived of life.” Whatever “cruel and unusual punishment” means in the Eighth Amendment, no one involved in the drafting of that language or the ratification of the Constitution believed that it prohibited capital punishment. “We should not pretend the Constitution is silent or ambivalent about the basic existence of the practice,” writes Damon Root, author of Overruled: The Long War for Control of the U.S. Supreme Court. “Like it or not, the death penalty is constitutional.”

The current Supreme Court action regarding the death penalty, from a legal point of view, amounts to little more than trivia. In some states, only prison employees may be present in the death chamber, which means that if there is a Christian or Muslim chaplain on the prison staff, he may be physically present, but a Buddhist or Zoroastrian may be denied similar consolation if there is no affiliated clergyman on the payroll. That case would be of scant interest if not for its intersection with the issue of capital punishment. Another case involves a man who suffers from a rare disease that, according to his lawyers, would cause him to endure horrifying pain if he were to be put to death via lethal injection. Likewise, that case has little to do with the merits or acceptability of capital punishment as such.

There is a long history of this sort of thing when it comes to the death penalty. The Furman case found the Supreme Court handing down a national moratorium on executions in an intellectually and legally incoherent decision — it was a 5–4 case with five different majority opinions — based on the nebulous considerations of arbitrariness and loosely defined “discrimination.”

Most of the popular arguments against the death penalty are like most investment advice and Republican campaign promises: I want to believe, and am inclined to do so, but they do not stand up to much scrutiny. It may very well be the case that an innocent man will be sentenced to death, but that also is an argument against incarceration, speeding tickets, and much else. An execution cannot be undone, but neither can the damage from 40 years’ wrongful incarceration. The irreversibility of the death penalty is an argument for prudence in its use, as indeed we must be prudent in all uses of state violence. It is not an argument against the thing itself. Neither is the related argument that the wealthy and well-connected tend to achieve better outcomes in capital cases than do the poor and the marginalized. There is little doubt that this accords with the facts on record — everybody hates lawyers until one is needed, and in a murder case, there is practically no expense that will not be endured — but, again, this is an argument for procedural reform rather than argument against a mode of punishment.

The myth that it is wildly more expensive to pursue a death-penalty case than to manage a lifelong incarceration would, even if it were true, be a sterile argument. There are many good occasions for the green eyeshades, but responding to murder or other heinous crimes is not one of them.

The fundamental obstacle to arguments against capital punishment is that it is not as a general matter unjust, though it may be unjustly applied in some particular case. Capital punishment is applied unevenly and in ways that often are perplexing, but it is applied relatively rarely, and it is applied in the context of a legal system that, whatever its faults, provides the accused with representation, procedural openness, a generous appellate process, and much more. Our prisons are a scandal, but the process by which offenders are remanded there is admirable, strange as that word may sound in this grim context. It is not perfect or free from abuse — including the willful abuses and occasional incompetence of police, investigators, and prosecutors, which are serious problems — but perfection is not the criterion of legitimacy or constitutionality.

There is a more straightforward case against the death penalty: that, on balance, it adds more violence and horror to our society than it is worth, that it does not bring out the best in us or in our institutions, that in our necessary pursuit of justice we need not see to it that the bitter cup is drained to the dregs in every instance, that we are better off showing mercy in this matter, and that what mercy entails is forbearance toward those who in fact deserve the worst that we might hand down.

But these are not questions for the Supreme Court. They are considerations for Congress and the states, which have the power to end the practice of capital punishment whenever they so choose. The Democrats who currently are in control of the House of Representatives could, if they had the courage of their convictions, make an issue of the death penalty in federal cases, and could probably count on the cooperation of at least a few Republicans in Congress and many more conservatives outside of elected office.

And it would be a far better thing to eliminate capital punishment on principle rather than on pretext.

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GateHouse: Prosecutors face dilemma in child exploitation cases

Matthew T. Mangino

GateHouse Media

April 5, 2019

Sexual Exploitation of Children, including what is commonly referred to as child pornography, has increased by more than 200 percent in the last decade. This horrific trend has been fueled by the easy spread of illicit material over the internet, according to Enough is Enough, a website dedicated to making the internet safe for children and families.

Easy access to the internet will only increase in the future. The Pew Research Center predicts that more than 30.7 billion devices are expected to be connected to the internet by next year.

With the proliferation of child pornography, law enforcement agencies have become more sophisticated in trackingdown cyber consumers and purveyors of exploitation. For instance, software that tracks images to specific internet connections has become a vital tool for prosecutors.

With this as a backdrop, eight out of 10 Americans believe federal laws against internet obscenity should be vigorously enforced. The question is how far is too far?

This week, ProPublica an independent, nonprofit investigative news agency, exposed cases in which prosecutors have dismissed charges against an accused consumer of child pornography as opposed to turning over the workings of the technology used to detect the illegal images.

Defense attorneys have sought to have the government explain how child pornography was traced to their clients’ computers.

During the early years of the commercialization of the internet there was a peer-to-peer file-sharing network known as Napster. People who used Napster could share music with one another by sharing files directly with other music enthusiasts. The same method is used to distribute child pornography.

Investigators use software programs to scan for child pornography on peer-to-peer networks. According to ProPublica, police rely on modified versions of peer-to-peer programs to flag IP addresses of suspected users of child pornography. This enables investigators to subpoena the internet providers to reveal the identity of the internet subscribers.

After identifying the internet subscriber, investigators obtain a search warrant for computers or other devices at the home, office or physical location of the subscriber who allegedly received the child pornography file.

However, in some cases, according to ProPublica, child pornography was being traced to an internet address, but after examination no illicit images were found.

As a result, law enforcement agencies have, in some cases, been faced with a difficult decision - drop the charges or disclose the workings of the detection software.

“When protecting the defendant’s right to a fair trial requires the government to disclose its confidential techniques, prosecutors face a choice: Give up the prosecution or give up the secret. Each option has a cost,” Orin Kerr, an expert in computer crime law and former Justice Department lawyer told ProPublica. “If prosecutors give up the prosecution, it may very well mean that a guilty person goes free. If prosecutors give up the secret, it may hurt their ability to catch other criminals. Prosecutors have to choose which of those outcomes is less bad in each particular case.”

Software developers want to protect their propriety rights to the software. Law enforcement wants to protect the ability of investigators to utilize technology that is having an impact on the exchange of child pornography.

The sexual exploitation of children is diabolical. Those who create it, and the consumers who trade it, deserve the wrath of the criminal justice system. However, a hallmark of the American criminal justice system is that a person charged with a crime has the right to “be informed of the nature and cause of the accusation” and the right to confront those who have made the accusation.

Keeping secret the manner and method of detecting a crime flies in the face of the Sixth Amendment to the U.S. Constitution. The end never justifies the means in a court of law. Those who harm children should be held accountable - and those who pursue them must be held to a standard consistent with this nation’s traditions of fairness and transparency.

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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Connecticut judge reduces adult's life sentence based on Miller v. Alabama

Latin King Luis Noel Cruz put two bullets into the head of a potential witness, then held down a perceived snitch as a fellow gang-banger fired four shots into him.

A quarter-century later, the pain caused by that double murder hasn’t changed. But something else has: How society sentences the teenagers who perpetrate such crimes.

U.S. District Court Judge Janet Hall, a Clinton appointee, made that difference clear on Tuesday morning as she considered resentencing Cruz, who’d been put away for life without parole for the murders of the two New Haveners, based on the U.S. Supreme Court’s recent guidance on juvenile offenders, reported the New Haven Independent.

During a three-hour hearing in the Church Street courthouse, Judge Hall recounted Cruz’s childhood on the mean streets of Bridgeport, heard devastating testimony from the victim Tyler White’s New Haven family about how the murders broke them, and questioned a social worker about whether Cruz had truly changed.

Cruz also spoke up for himself.

“I can confidently tell everyone I’m definitely not that stupid, close-minded kid who hurt so many people with my actions,” he said, as he testified that he planned to work with at-risk youth — “the not-yet victims and not-yet offenders” — if the judge would one day release him. “My hope is that will be even the smallest consolation, that others wouldn’t have to go through what I’ve put them through. This is not what I want to be known for, Your Honor.”

Weighing that evidence, Judge Hall ultimately decided to cut Cruz, now 43 years old, a break, dropping his sentence to 35 years in prison.

Judge Hall said Tuesday that she based her decision largely on the Supreme Court’s reasoning in Miller v. Alabama. In that 2012 case, the high court’s justices were deciding whether life in prison without parole was an allowable punishment for a 14-year-old who’d clubbed a man with baseball bat, then burned him alive inside his trailer.

The four liberal justices, joined by swing-vote Anthony Kennedy, ruled that sentence constituted a “cruel and unusual punishment,” in violation of the Eighth Amendment. The four conservative justices disagreed, saying the high court’s job was overstepping its duties in setting a moral standard for the country.

Since then, judges have been interpreting just who counts as a “child,” and Hall has been more willing than others to extend the high court’s reasoning to those who are over 18 years old.

Based on the latest developmental research, experts are suggesting that teenagers might be able to argue that their sentences should be reviewed all the way up to age 24.

While she didn’t want to assign a brightline for adulthood, Hall said she’d consider Cruz, who was just five months past his 18th birthday when he killed White and Diaz, close enough to a juvenile to review his lifetime sentence. She said that also fit with a general trend in sentencing, as only one 18-year-old had been given life in prison without parole in the federal system from 2010 to 2015, according to a U.S. Sentencing Commission report.

Another nearby federal judge, however, a New Yorker presiding over the trials of three murderous gang-bangers from the Bronx who were between 18 and 22 years old, has disagreed, still handing down life without parole to youngsters. That case is currently being challenged before the Second Circuit Court of Appeals.

The lawyers in Hall’s courtroom on Tuesday sparred too, arguing about how much responsibility a young adult should take for their actions, even if the teenage brain isn’t fully developed.

Was Cruz fully culpable at 18 years old when he put a gun against White’s head? Was Cruz fully culpable at 20 years old when he lied about committing the crime at his initial sentencing? Was Cruz fully culpable at 26 years old when he tried to cut ties with the Latin Kings? Was Cruz fully culpable at 43 years old when he still wouldn’t give up a childhood friend who’d been involved in the double murder?

“He was mature enough not to leave a bystander as a witness; so he decided to shoot Tyler White in the head twice,” Patricia Stolfi Collins, an assistant United States attorney, wrote in a brief. “And he was mature enough to know that the business of murder, once begun, should not be left unfinished; and so he helped chase and wrestle down Diaz, as he pled for his life, so that his accomplice could shoot him again and again.”

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New Orleans to apologize for lynching of 11 Italians in 1891, one of the largest mass lynchings in American history

The Washington Post reports today about the lynching of 11 Italian immigrants in New Orleans in 1891, in what some say was the largest mass lynching in American history.

Thousands of people, among them the most prominent businessmen, lawyers, merchants and politicians in New Orleans, marched in circles around a statue of Henry Clay. The crowd was “yelling itself hoarse,” bent on a kind of justice that would be called murder today but that The Washington Post and numerous other newspapers called “vengeance” in 1891.

The mob’s victims awaited in the Orleans Parish jail, all of them Italian immigrants or children of immigrants who had just been acquitted in the shooting death of the New Orleans police chief; others still awaited trial. To this day, the chief’s killer or killers have never been identified. But on the morning of March 14, 1891, despite the not-guilty verdicts, the mob seemed certain.

“When the law is powerless,” William Parkerson, the mob’s leader and mayor’s former campaign manager, yelled to the crowd, according to a 1991 New Orleans Times-Picayune article, “rights delegated by the people are relegated back to the people, and they are justified in doing that which the courts have failed to do.”

Once the speeches finished, The Post reported then, everyone stood still for a moment, quiet just long enough for one man’s voice to catch the agitated crowd’s attention: “Shall we get our guns?”

The verdict was decisive. That morning, anywhere from 8,000 to 20,000 vigilantes armed with Winchester rifles, axes and shotguns broke down the door of the parish jail and trampled past the passive sheriff’s deputies until they captured 11 defenseless Italians and riddled their bodies with bullets. Two were dragged outside and hanged, one by a tree limb and the other by a lamp post.

Historians have called the massacre the largest mass lynching in American history. The vigilante mob escaped any consequence, and the city of New Orleans refused to take responsibility.

But now, 128 years later, the city is trying to make amends On April 12, New Orleans Mayor LaToya Cantrell (D) is expected to apologize to the Italian American community for the infamous killings — a concession that Michael Santo, special counsel to the Order Sons and Daughters of Italy, said will shore up “long-lasting wounds” among Italians. The mayor is expected to issue a formal proclamation, according to the group. A spokesman for Cantrell confirmed the pending apology to the Associated Press on Sunday.

“This is not something that’s too little, too late,” Santo told The Post. “This is something that has to be addressed.”

The lynchings were a product of anti-Italian sentiment and public hysteria over a shadowy “Mafia” in the aftermath of the chief’s slaying, according to a 1992 paper in the Journal of the Louisiana Historical Association by John V. Baiamonte Jr.

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Sotomayor gets after Gorsuch over death penalty

In a Missouri death row case, Justice Neil Gorsuch, perhaps reacting to sharp criticism of the court’s refusal to delay the execution of an inmate who wanted his imam present in the death chamber, appeared to impose a new and higher bar on last-minute execution stays, drawing a rebuke from Justice Sonia Sotomayor, reported the National Law Journal.

“Last-minute stays should be the extreme exception, not the norm, and ‘the last-minute nature of an application’ that ‘could have been brought’ earlier, or ‘an applicant’s attempt at manipulation,’ ‘may be grounds for denial of a stay,’” Gorsuch wrote in his 5-4 majority opinion in Bucklew v. Precythe.

Gorsuch’s two-page commentary at the end of his majority opinion was “troubling dicta” that was “wholly irrelevant” to the issue before the court, Sotomayor said in her dissent.

“I am especially troubled by the majority’s statement that ‘last-minute stays should be the extreme exception,’ which could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye,” Sotomayor wrote.

The issue before the justices was not delays in execution, but whether Russell Bucklew’s proposed alternative to execution by lethal injection—nitrogen hypoxia—met the high court’s test of a feasible, reduced risk of severe pain. The majority held it did not.

Gorsuch, joined by Chief Justice John Roberts Jr. and Justices Clarence Thomas, Samuel Alito Jr. and Brett Kavanaugh, ended his 31-page opinion with two pages devoted to last-minute execution stays.

Gorsuch cited as an example the court’s decision on Feb. 7 in Dunn v. Ray, a denial of an execution stay that would draw criticism from conservatives and liberals.

The divided court vacated a stay of execution imposed by a federal appellate court that wanted to hear Domineque Ray’s religious discrimination claims. Ray argued the prison’s refusal to allow an imam to attend him during his final moments violated the First Amendment’s establishment clause.

The high court, over the dissenting votes of Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, gave no reason for its unsigned ruling. The majority only cited a 1992 decision holding that “a court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”

The decision triggered widespread criticism, which snowballed after the court, with Gorsuch and Thomas dissenting, on March 28 granted a stay of execution to a Texas inmate named Patrick Murphy. In that case, Murphy challenged the prison’s refusal to allow his Buddhist spiritual advisor to accompany him into the death chamber. Kavanaugh joined the majority to block Murphy’s execution.

There was little significant difference between the Ray and Murphy timelines in seeking stays of their executions, according to their lawyers. Some court watchers suggested the court’s grant in Murphy’s case may have been a reaction to the criticism the court received after denying Ray a stay to allow his imam to be by his side.

In a lengthy footnote on Monday, Gorsuch did not back down from the Ray decision. Gorsuch accused the Bucklew dissenters of “seeking to relitigate” Dunn v. Ray. He laid out for the first time the nature of the delay in Ray’s case that prompted the majority to vacate the lower court stay.

Gorsuch claimed that a state statute had put Ray “long on notice” that there was a question as to whether his adviser could go into the execution chamber or had to remain outside.

 “Yet although he had been on death row since 1999, and the state had set a date for his execution on November 6, 2018, he waited until January 23, 2019—just 15 days before the execution—to ask for clarification,” Gorsuch wrote. “He then brought a claim 10 days before the execution and sought an indefinite stay. This delay implicated the ‘strong equitable presumption’ that no stay should be granted ‘where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.’”

Before addressing what she described as Gorsuch’s “skewed view of the facts” in the Ray case, Sotomayor, in her dissenting opinion, wrote that Gorsuch’s comments on last-minute stays if “mistaken for a new governing standard, they would effect a radical reinvention of established law and the judicial role.” The courts’ equitable discretion in handling stay requests, she said, is governed by “well-established principles.”

Sotomayor then went footnote to footnote with her challenge to Gorsuch’s view of the Ray facts.

“Even today’s belated explanation from the majority rests on the mistaken premise that Domineque Ray could have figured out sooner that Alabama planned to deny his imam access to the execution chamber,” Sotomayor wrote. And she quoted from Kagan’s dissent, which noted that “the prison refused to give Ray a copy of its own practices and procedures”  that would have clarified the degrees of access by an imam or a Christian spiritual adviser.

Justice Stephen Breyer, who wrote the main dissent in Monday’s case, more briefly at one point took on Gorsuch’s use of the Ray decision to address delays in executions.

“In the view of some of us, the prisoner’s claim—that prisoners of some faiths were entitled to have a minister present at their executions while prisoners of other faiths were not—raised a serious constitutional question,” Breyer said. “And therein lies the problem. It might be possible to end delays by limiting constitutional protections for prisoners on death row. But to do so would require us to pay too high a constitutional price.”

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