PA Supreme Court authorizes expert testimony on eyewitness identification

The Pennsylvania Supreme Court ruled that criminal defendants have the right to offer expert testimony about the reliability of eyewitness identification, reported The Associated Press.  The decision overturned a 20-year prohibition against using such experts.
The four-justice majority ruled that Pennsylvania will join the great majority of states and federal courts when it comes to letting an expert tell jurors about research into eyewitness testimony.
"Twenty years of advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person as a perpetrator of a crime when certain factors are present," wrote Justice Debra Todd for the majority. She said it was "beyond serious contention that the statistical evidence on eyewitness accuracy is substantial."
The court ruling outlined the conditions under which the evidence can be allowed and put the decision in the hands of trial judges.
"While we need not precisely define such situations, generally speaking, it would be where the commonwealth's case is solely or primarily dependent upon eyewitness testimony," Todd wrote.
The case involved Benjamin Walker, convicted of a 2005 robbery of two University of Pennsylvania students in Philadelphia, based on the victims' identification of him to police. Walker is serving up to 35 years in prison.
The two dissenting justices argued that a better approach would be to amend the instructions about eyewitness testimony that judges give juries before deliberation. In most cases, the experts will be for the defense, wrote Justice J. Michael Eakin in a dissent joined by Chief Justice Ronald Castille.
"And if experts may opine about identification, why would they not be equally admissible on other peripheral matters, such as witness recollections of time, dates, places, colors, types of cars, clothes, directions and a host of matters which any given witness is likely to confuse?" Eakin wrote. "There being no logical difference, likening this decision to the camel's nose under the tent is not an exaggeration."
Castille defended the ability of jurors to use common knowledge and experience to assess credibility of witness identification.
"Before modern movements in psychiatry and psychology, mankind already had a rich literature laden with insight into humanity," Castille wrote, adding later that "matters affecting human perception and recall are hardly the exclusive and special bailiwick of social science experts."
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Mangino on WFMJ-TV's Weekend Today talking about The Executioner's Toll, 2010.

Check out my Sunday interview on WFMJ-TV's Weekend Today about my book The Executioner's Toll, 2010.
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Confusion reigns with Pennsylvania mandatory minimum sentencing

A U.S. Supreme Court decision last year prompted dozens of appeals in criminal cases across Pennsylvania and left judges scratching their heads on how to apply state laws on mandatory minimum sentences, reported The Associated Press.
The stumbling block is Alleyne v. United States, a high court decision stemming from a Virginia federal court case that found that juries, not judges, should decide whether a defendant committed crimes that trigger a mandatory minimum sentence.

But Pennsylvania law says a jury decides a person’s guilt or innocence of the underlying crime, such as drug possession or robbery. A judge then uses a lower standard of proof to decide whether the mandatory sentencing “triggers” were proved – such as being in a school zone when drug dealing or brandishing a gun during the robbery.

Judges in at least one jurisdiction, Blair County in central Pennsylvania, recently decided to stop imposing mandatory minimum sentences altogether until the General Assembly rewrites the statutes.
Since the Alleyne ruling, some Pennsylvania judges have begun asking juries to determine whether certain mandatory minimum triggers have been proved, even though state law doesn’t allow that. Other judges have ruled that Alleyne makes Pennsylvania criminal statutes containing mandatory minimum sentencing provisions unconstitutional in their entirety.
If the state’s highest court agrees, the General Assembly could amend the statutes to let juries impose mandatory minimums or eliminate such sentences altogether.

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Supreme Court decides another qualified immunity case

The U.S. Supreme Court made it more difficult for citizens to sue law enforcement officers for their conduct, reported NPR. The High Court decided a qualified immunity case earlier this month, directing the trial court to review a decision to granting summary judgment based on qualified immunity.
The central issue was the doctrine of "qualified immunity," which shields public officials from being sued for actions that fall short of violating a clearly established statutory or constitutional right.
The case involved a high-speed chase and the death of the driver and passenger at police hands. In what the court conceded were tragic circumstances, West Memphis, Ark., police pulled over Donald Rickard for driving with only one functioning headlight. When police asked him to step out of the car, he instead floored the gas pedal, swerving through traffic at high speeds.
Minutes later, he spun out in a parking lot, and again sought to take off, narrowly missing a police officer. Police fired three shots at the fleeing Rickard, but he again did not stop. When he finally crashed the car, police fired 12 shots into the vehicle, resulting in the death of Rickard and his passenger.
Rickard's daughter sued police for using excessive force. In an opinion authored by Justice Samuel Alito, the court concluded that the use of deadly force to end a dangerous high-speed chase was constitutional and did not violate any statute. As a result, the police were immune from suit.
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GateHouse: Supreme Court to decide police access to cellphone data

Matthew T. Mangino
GateHouse News Service
May 30, 2014
The Fourth Amendment to the U.S. Constitution protects individuals from unlawful searches and seizures. When the Fourth Amendment was drafted, colonial rule was seared in the consciousness of the new nation.

The imperialist British government often used Writs of Assitance. Their use was the driving force behind the Fourth Amendment. The writ permitted British officials unlimited access to search homes without regard to whether the occupant committed a crime.

The contempt of drafters is palpable in the language of the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Today, the idea of the police barging into a house without a warrant and rifling through a person’s bank account, correspondence, photographs and personal effects is repugnant.

However, the U.S. Supreme is considering making an almost identical invasion constitutional, and there is no hue and cry — there’s barely a whimper.

The U.S. Supreme Court is considering whether police need a warrant to search the contents of a cellphone seized when making an arrest. The court is considering two cases. One case out of Massachusetts deals with an old-style flip phone, the other a California case deals with a smartphone.

If you carry a cellphone you should be concerned. And you probably do — a Pew Research Center survey taken last January found that 9 out of 10 Americans carry a cellphone. Fifty-eight percent of Americans carry the more sophisticated smartphone. An estimated 6 billion of the world’s 7 billion people have access to the mobile devices, according to CNN.

“Technology now makes it possible for individuals to carry huge quantities of information with them every day,” wrote Yale Law School professor Eugene Fidell and attorney Andrew Pincus in a brief they filed with the Supreme Court.

A 16-gigabyte phone — the smallest available storage capacity for the Apple iPhone 5 — “can store 800 million words of text — well over a football field’s length of books or 16 flat-bed truckloads of paper,” reported Fortune magazine.

The law currently provides that an arresting officer may search an arrestee to discover and remove weapons and to seize evidence to prevent its concealment or destruction. Included in virtually every search is a cellphone.

The Obama administration and the California attorney general’s office urged the court to endorse a rule that would allow police to search any cellphone being carried by anyone arrested for any reason. Sixteen states’ attorneys general asked the Supreme Court to equate the privacy of handheld data with that of “information on paper or in other documentary forms.”

Critics say cellphones, particularly smartphones, and other electronic devices increasingly hold, or provide access to, the most private details of a person’s life — including personal photos, videos, messages, names of friends and associates, banking and financial information, and medical records, among others, reported the Christian Science Monitor.

Justice Antonin Scalia did not seem deeply troubled by the prospect of a cellphone search during an arrest. However, he suggested that it should be limited to evidence of the crime for which the individual was arrested.

The most vocal defender of smartphone privacy was Justice Elena Kagan, who suggested a person can be arrested for driving without a seat belt, “and the police could take that phone and could look at every single email that person has written, including work emails, including emails to family members, very intimate communications, could look at all that person’s bank records, could look at all that person’s medical data, could look at that person’s calendar, could look at that person’s GPS and find out every place that person had been recently because that person was arrested for driving without a seat belt.”

What was once stored away in one’s home is carried around in a cellphone. Should the police have unfettered access to that information?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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The Cautionary Instruction: The Eighth Amendment — a matter of human dignity

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 30, 2014
This week the U.S. Supreme Court struck down Florida’s strict IQ cutoff for determining intellectual disability and in turn eligibility for the death penalty.
In a 5-4 ruling in Hall v. Florida the court concluded that Florida’s rigid IQ threshold of 70 “disregards established medical practice” and creates the “unacceptable risk” that an inmate with intellectual disabilities might be executed, in violation of the Constitution.
“Our society does not consider this strict cutoff as proper or humane,” Justice Anthony Kennedy wrote.
“No legitimate penological purpose is served by executing a person with intellectual disability,” Kennedy wrote. “To impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.”
It is interesting that Kennedy would refer to the petitioner’s inherent right of “dignity.” The term is not frequently used in American jurisprudence and the term is even more difficult to find in Supreme Court opinions.

In fact, in Atkins v. Virginia the decision that banned the death penalty for the intellectually disabled, the only reference to dignity is the reference to a passage in Chief Justice Earl Warren’s 1958 opinion in Trop v. Dulles, “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”
In “Dignity Rights: Courts, Constitutions, and the Worth of the Human Person,” Erin Daly, a professor at Widener University Law School, wrote that the U.S. Supreme Court’s first mention of dignity as an individual right is a fleeting reference in Skinner v. Oklahoma in 1942. In a 1945 dissent, Justice Frank Murphy wrote, “The right was his … because he was a human being. As such he was entitled to all the respect and fair treatment that befits the dignity of man.”
In Miranda v. Arizona the Supreme Court wrote of oppressive interrogations as “destructive of human dignity.” In Roper v. Simmons, the court outlawed the execution of juveniles. The Court wrote, “The basic concept of the Eighth Amendment is nothing less than the dignity of man.”
The reason the Supreme Court was forced to entertain another case dealing with intellectual disability resulted from the Court’s failure to outline a method for determining intellectual disability in the Court’s 2002 decision in Atkins. In Atkins the court left it to the states to define the parameters of who qualifies as mentally disabled for purpose of capital punishment.
Ultimately the question is whether a defendant’s mental deficiency is so significant that he is unable to appreciate the wrongfulness of his conduct. If so, his execution would violate the Eighth Amendment ban on cruel and unusual punishment and violate his inherent dignity as a human being.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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Third Circuit considers GPS and 'good faith' exception

Evidence police collected from a GPS device they attached to a suspect's vehicle without a warrant should be admissable because the officers relied in good faith on legal precedent at the time, the U.S. Attorney's Office argued in front of an en banc panel of the Third Circuit, reported The Legal Intelligencer.
Both the trial judge and the three-judge panel of the U.S. Court of Appeals for the Third Circuit that initially heard arguments had decided that the evidence should be suppressed, although the decision of the panel split on that issue. "You're asking for an extension of the good-faith doctrine," Judge D. Brooks Smith said to Robert A. Zauzmer, the assistant U.S. attorney who was arguing the case. Smith sat on the original appeals court panel and joined the majority opinion to suppress the evidence.
"We're asking for what I've described as a very, very slight extension of Davis," said Zauzmer, who was accompanied by U.S. Attorney Zane Memeger of the Eastern District of Pennsylvania. Zauzmer was referring to the U.S. Supreme Court's 2011 opinion in Davis v. United States, in which the high court ruled that the fruits of searches that were conducted in good faith with reasonable reliance on available legal precedent at the time of the search can be used in court. Chief Judge Theodore McKee commended Zauzmer for his candor, saying, "You conceded you were advocating a slight extension of Davis."
However, Catherine Crump, of the American Civil Liberties Union, argued that Davis wouldn't apply to this case. Crump is representing the three brothers who allegedly burglarized area Rite Aid pharmacies in 2010 and were tracked by FBI agents. "Davis does not control the result here. The Supreme Court specifically limited Davis to situations where there is binding precedent on point," according to the ACLU.
There was no such precedent when the FBI attached a GPS tracker to the vehicle used by the Katzin brothers, the ACLU argued. The year after the U.S. Supreme Court decided Davis, it decided United States v. Jones, in which it determined that the use of a GPS tracker would constitute a search under the Fourth Amendment. It didn't, however, declare whether or not a warrant would be required for the use of a GPS.
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