Former White House ethics lawyer: Comey broke the law

Former White House ethics lawyer Richard W. Painter contended in a New York Times opinion piece published Sunday that the FBI director broke the law with his letter to congress announcing the FBI was examining new emails related to its probe into Hillary Clinton's private email server.

Painter argued that FBI Director James Comey violated the Hatch Act, which ensures "that federal programs are administered in a nonpartisan fashion," by making "highly unusual public statements about an FBI investigation concerning a candidate in the election."

Painter said he brought those concerns to the Office of Special Counsel and the Office of Government Ethics with a a complaint against the FBI, reported the Business Insider.

"The letter was sent in violation of a longstanding Justice Department policy of not discussing specifics about pending investigations with others, including members of Congress," wrote Painter.

He also referred to such a disclosure on the eve of a general election as an "abuse of power."

Painter served as an ethics lawyer for George W. Bush's administration from 2005-2007. In the piece Painter discloses that he supported GOP candidates during the primaries, but eventually pivoted to Hillary Clinton.

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Watch my interview on Weekend Today on WFMJ-TV

Watch my interview on Weekend Today on WFMJ-TV regarding the renewed email investigation leaked by Congress after FBI Director Comey's letter.

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Be careful with those ballot selfies, you could end up in jail

The issue of “ballot selfies” has actually become somewhat contentious. At the end of September, a federal appeals court ruled that a statewide ban on ballot selfies in New Hampshire was unconstitutional. Proponents of the ban said it was put in place so that images of ballots wouldn’t be used to buy votes or cause voter intimidation, according to CNN.

Before you post that vote photo or a smiling selfie of you and your ballot, in some states it might be a crime. One that carries at least the possibility of time behind bars.

However, while sharing your ballot – whether on social media or otherwise –  is technically illegal, authorities say they won't will be scouring Twitter for #ballotselfie posts in order to snag scofflaws.

That is, unless there's evidence that the messages have been coerced or part of a pay-for-vote scheme.

The intent of Ohio's ballot sharing ban, last revised almost 20 years ago, was to prevent voter intimidation, and Tammany Hall-era election fixing, Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine said.

In Pennsylvania the Election Code doesn’t address electronic devices in polling places, so the state recommends counties enact “common sense” rules to address it so that voting is unimpeded.

Counties can allow other people such as poll watchers who are lawfully in the polling place to use portable electronic devices, but should consider limiting the location of use to outside the area where voting occurs.

The state recommends voters who want to do so do two things:

Make sure you’re only getting your ballot in the photo and not anyone else’s. This is more of a problem in counties without voting booth curtains.

The Department recommends voters wait until after they leave the polling place to post a ballot selfie on social media.

GateHouse: Voters to decide how old is too old for a judge

Matthew T. Mangino

GateHouse Media

October 28, 2016

Voters in Pennsylvania and Oregon will have a chance to decide how old is too old to be a judge. Pennsylvania seeks to extend the date of mandatory retirement from age 70 to age 75. Oregon seeks to end mandatory retirement altogether, much like the federal bench.

According to the National Center for State Courts, 32 states plus the District of Columbia have a retirement age for judges; most use 70 as the threshold, and the remaining states use either 72, 74, 75, or in the case of Vermont, 90.

For nearly 20 years state legislatures across the country have tried to increase or abolish mandatory retirement for judges, with mixed results. Since 1990, at least 11 states have tinkered with mandatory judicial retirement. In fact, the Virginia Legislature had tried unsuccessfully for seven consecutive years to increase the mandatory retirement age for judges, until finally succeeding in 2015. Federal judges have no age restrictions. The Constitution grants federal judges a lifetime appointment as long as they maintain “good behavior.” Since that language was written in 1787, average life expectancy has more than doubled, to almost 80, and the number of people who live beyond 100 is rapidly growing. According to the New York Times, nine of the 10 oldest practicing federal judges on record have served in the last 15 years.

According to an investigation by ProPublica, as of January 2011, 12 percent of federal judges were over age 80 — that is about 150 judges — and 11 judges were over the age of 90. Should there be concern about judges serving into their 70’s and 80’s? According to one study, by age 70 most people are cognitively impaired and half of all 85-years-olds have dementia. As I have written here in the past, the cognitive functions most affected by age are attention, memory, language processing and decision making — fundamental skills in any courtroom. Federal judges are nominated by the president. Most state judges are elected. State judges campaigned for office knowing their terms were limited by mandatory retirement. Now they want to change the rules, a process that is often cumbersome and may include amending the state’s constitution. Pennsylvania is one of those states.

According to Stateline Magazine, the only way to change the retirement age of judges in Pennsylvania is to change the constitution. A change in the state constitution requires that an identical bill pass both chambers of the Legislature two sessions in a row. The measure must then win a popular vote in a statewide election.

States that require constitutional amendments to change retirement ages for judges have appeared on ballots 11 times in 9 states since 1995 and almost all have failed, including Arizona in 2012; Louisiana in 1995 and 2014; Hawaii in 2006 and 2014; New York in 2013; and Ohio in 2011, according to the National Center for State Courts.

To further complicate things, the language on Pennsylvania’s ballot is misleading. The ballot question asks voters whether they would approve mandatory retirement for judges at the age of 75. The question does not make it clear that the mandatory retirement age in Pennsylvania is currently 70 and that voters are being asked to extend retirement by five years to 75.

An unsuccessful lawsuit attacking the language alleged, according to the Philadelphia Inquirer, “The ballot question … is misleadingly designed to garner `yes’ votes from voters who are actually in favor of restricting the terms of judges and justices, but are unaware that the proposed amendment will have the opposite effect.”

Voters in Pennsylvania also face a curious dilemma on Election Day. On one portion of the ballot votes are being asked if 70 is too old to be a judge and on another portion of the ballot voters are being asked to choose between two major party candidates for president, one age 70 and the other 69.

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 mattmangino.com and follow him on Twitter at @MatthewTMangino.

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No hope for Wisconsin juvenile lifers

Sixty-eight inmates in Wisconsin are serving life sentences for crimes they committed at age 16 or younger, reported the Milwaukee Journal Sentinel. In Wisconsin, juveniles as young as 10 are automatically charged as adults when accused of first-degree murder. While judges can move cases to juvenile court where sentences are shorter and resources for rehabilitation are more widely available, they rarely do.

In 2012, the U.S. Supreme Court banned mandatory life sentences without parole for juveniles, noting such sentences fail to consider dysfunctional upbringings or peer pressure that may have contributed to the crimes. Earlier this year, the court said its ruling should be applied retroactively, giving 2,000 inmates across the country the chance to be resentenced or get out of prison early.

Since the Supreme Court rulings, 19 states have outlawed life without parole for juveniles.

But there is little chance the rulings will make a difference for the 68 juvenile offenders serving life terms in Wisconsin. Since most will technically be eligible for parole, the Supreme Court decisions won’t trigger a review of their sentences. And because parole is rarely granted in Wisconsin, release is unlikely.

Advocates for reform say treating young offenders as adults and subjecting them to life sentences ignores the growing scientific and judicial consensus: Juvenile brains aren’t fully formed and young people are more capable of rehabilitation than adults.

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GOP backs away from the death penalty

Ballot campaigns fighting to halt the death penalty are getting unlikely support from some Republicans, who cite a growing concern that it has become a costly and ineffective policy, the Wall Street Journal reports. Voters in Nebraska and California will decide Nov. 8 whether to abolish the death penalty, while Oklahomans will vote on a measure that would give the state more leeway in the methods used to kill death-row inmates.
The Pew Research Center said this year that 72 percent of Republicans favor the death penalty, down from 77 percent in 2015 and 87 percent in 1996. Some 34 percent of Democrats support the death penalty, down from 40 percent last year.

“Republicans are starting to take the lead on this issue, they’re starting to say we’re going to use our conservative principles and get rid of this,” said Colby Coash, a Nebraska Republican state senator. “Here’s a broken government program, if you want to fix broken government programs.” Coash rallied the Republican-majority state Legislature to ban the death penalty last year.
His opponents argue voters won’t be so easily convinced. “They’re out of touch with the views of their constituents,” said Donald Stenberg, Nebraska’s GOP state treasurer who was attorney general in 1997 when the state last executed a death-row inmate. Nationally, support for the death penalty is still far stronger among Republicans than Democrats, but it is waning. 

 In Oklahoma, where executions are on hold after a botched execution and multiple drug mix-ups, independent pollsters were surprised by the amount of Republican support for abolishing the death penalty when there is an alternative punishment for murderers. Nearly half of Republicans said in a survey they would support its abolition if murderers were instead given life without parole and forced to pay restitution. 

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Fresno judge sentences father who raped daughter to 1,503 years in prison

Fresno, California prosecutor Nicole Galstan asked a judge to sentence Rene Lopez to 1,503 years in prison for raping his teenage daughter over a four-year period, ending in 2013, reported The Fresno Bee.

Judge Edward Sarkisian Jr. agreed, sentencing the 41-year-old Lopez to the longest-known prison sentence in Fresno Superior Court history. It stands in stark contrast to recent high-profile sentencings in sexual assault cases such as six months for ex-Stanford swimmer Brock Turner and, just this week, 60 days for a Montana man convicted of felony incest for raping his 12-year-old daughter.

In announcing the punishment, Sarkisian told Lopez he violated a position of trust, engaged in violent conduct and is a “serious danger to society.” Sarkisian also noted that Lopez had never shown remorse and has blamed his daughter for his predicament.

Lopez, who sat shackled in the courtroom, sat silently, never acknowledging his daughter, who told Sarkisian that she feared her father. (The Fresno Bee does not name victims of sexual abuse.)

“When my father abused me, I was young. I had no power, no voice. I was defenseless,” said the daughter, who now is 23 years old. She also told the judge that her father never has shown remorse for her pain and suffering.

She then thanked Galstan and senior investigator Stacy Cordero for helping her overcome her ordeal and giving her justice.

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