Questionable jury instruction jeopardizes Philadelphia murder convictions

An imprecise metaphor may sound like a trivial matter. But figurative language deployed by a flamboyant and controversial judge more than a decade ago is now the basis for legal challenges by a dozen or more Philadelphians convicted of murder, reported the Philadelphia Inquirer.

Federal judges have already ordered new trials for two of them, and a third case is being negotiated to avert a similar outcome.

Now, it’s up to the Philadelphia District Attorney’s Office to decide how vigorously to fight those and any other cases overturned on the same grounds: jury instructions given by then-Common Pleas Court Judge Renee Cardwell Hughes that even the D.A. now concedes were unconstitutional.

Following a strongly worded opinion from federal Judge Gerald McHugh calling her instruction deficient, the D.A.'s office said it would no longer defend the instruction — putting itself in a tactically difficult position that may open the door for even more reversals. Now, the office is fighting to contain the fallout.

 “We’d have scores — dozens, potentially — you know, I mean, McHugh’s opinion is a recipe for relief in every one of these cases,” the D.A.'s federal litigation supervisor, Max Cooper Kaufman, said during arguments in federal court in May 2018, according to transcripts.

It began with the case of Basil Brooks, who was convicted of the 2005 slaying of Derrick Jones, shot dead on the street in West Philadelphia. The evidence against Brooks was, by all accounts, thin: primarily, the testimony of a single eyewitness who could not pick Brooks out of a photo array, who was high on Xanax at the time the crime occurred, and who faced pending criminal charges that were dismissed for lack of prosecution shortly after he implicated Brooks.

As the trial concluded, Hughes charged the jury with assessing whether Brooks was guilty beyond a reasonable doubt.

To assist them, she conjured a metaphor: “If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion.” Anyone would ask questions, do research, she explained — but at some point you have to decide: “If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.” 

Daniel Silverman, a lawyer hired by Brooks to comb through his case for errors, believed he’d found one in that instruction and filed a habeas petition seeking relief in federal court.

“The United States Supreme Court has unanimously held that upping the ante in that regard violates the due process clause of the 14th Amendment,” he said recently.

In August 2017, McHugh, of the U.S. District Court for Pennsylvania’s Eastern District, agreed. Considering that example of a terminally ill loved one, McHugh wrote, “What level of doubt would need to exist before a juror would deny them a chance at life? Necessarily, one would need profound, if not overwhelming, doubt.”

The District Attorney’s Office filed notice it would appeal McHugh’s decision. But after Larry Krasner was elected, it withdrew the appeal, which, if denied, could have led to a precedent-setting ruling. Its position now appears to be that the instruction was improper — but not to the point of voiding all relevant convictions.

Still, it is no mere technicality, said Shari Seidman Diamond, an expert on jury instruction and a professor at Northwestern University’s Pritzker School of Law.

“The whole system of criminal prosecution is based on the notion that we won’t convict somebody of an offense unless it is beyond a reasonable doubt — and, by that, we mean that the evidence has to be extremely strong.”

She called the instruction Hughes gave “objectionable.”

By likening convicting the defendant to securing lifesaving treatment for a loved one, Diamond said, “She kind of loaded the dice in favor of convicting. By this analogy, you sure are going to want to convict, and you should never create in the jurors the sense they want to convict.”

While judges have discretion in how they advise juries, many jurisdictions, including Pennsylvania, publish suggested standard jury instructions. Diamond prefers the instruction that U.S. Supreme Court Associate Justice Ruth Bader Ginsburg proposed in a 1994 opinion: “Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.”

Hughes, a graduate of Georgetown University Law Center, was known for her unrestrained speech from the bench.

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Juvenile arrests for violent crime remain near historically low levels

Following 10 years of decline between 1994 and 2004, juvenile arrests for violent crimes increased through 2006 and then declined each year through 2015, reaching its lowest level since at least 1980, reported the U.S. Department of Justice.

Despite a modest increase (less than 0.5%) in the last year, the number of juvenile arrests for violent crimes in 2016 was 67% less than the 1994 peak.

After falling to a relatively low level in 2004, juvenile arrests for murder increased through 2007, then declined 46% through 2012 to reach the lowest level in three decades. However, the number of juvenile arrests for murder has increased each year since 2012. Juvenile arrests for robbery were cut in half between 1995 and 2002, increased through 2008, and then fell 47% through 2015.

After reaching the lowest level since at least 1980, the number of juvenile robbery arrests increased by 4% in the last year. The number of juvenile arrests for aggravated assault, which account for 58% of all juvenile arrests for violent crime, fell 67% between 1994 and 2016 to the lowest level in the previous 36 years.

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Frost's iconic 'Stopping by Woods on a Snowy Evening' belongs to all today

In 1922, Robert Frost wrote one of America’s most revered and recited poems, “Stopping by Woods on a Snowy Evening.”

Today, New Year’s Day, those words enter the public domain, along with a huge cache of other long-copyrighted material. For the first time, we and anyone else can reproduce Frost’s iconic work without permission or restriction, reported Steve Hendrix of the Washington Post. Here it goes

:

Whose woods these are I think I know.

His house is in the village though;

He will not see me stopping here

To watch his woods fill up with snow.

-

My little horse must think it queer

To stop without a farmhouse near

Between the woods and frozen lake

The darkest evening of the year.

-

He gives his harness bells a shake

To ask if there is some mistake.

The only other sound’s the sweep

Of easy wind and downy flake.

-

The woods are lovely, dark and deep,

But I have promises to keep,

And miles to go before I sleep,

And miles to go before I sleep.

The work’s four stanzas—spare, musical and haunting—have been memorized by generations, dissected by scholars and beloved by presidents. And now that they are beyond the reach of copyright law, anyone can emblazon them anywhere, from inspirational posters to beach towels. Composers can lyricize them. Teachers can photocopy them. FedEx can paint “Miles to go” on its trucks. “Easy wind and downy flake” would make a good line of dryer sheets and laundry soap. Frost’s words belong to the ages and to everyone.

The poem, with its moody pondering of mortality, was born in a flash of inspiration midway through Frost’s life of professional acclaim and personal loss. In the summer of 1922, the poet was struggling with a long poem at his home in Shaftsbury, Vt. He had been working all night in the kitchen, Parini said, frustrated and thwarted. He crumpled up his efforts and went out onto the porch in time to see the first glow of dawn.

Somehow, the sunrise of a dry summer morning evoked in his tired writer’s mind the evening of a snowy winter’s day. Almost a “hallucination,” he would say later. He turned back to his pen and one of the century’s great poems was born “without strain,” in Frost’s words.

By the 1960s, Frost had reached the cool evening of his years but was a cultural hot commodity. The poet was a favorite of fellow New Englander John F. Kennedy, who invited Frost to begin the tradition of a poet reading verse at presidential inaugurations. But even before, Kennedy ended many of his campaign speeches with “And miles to go before I sleep/And miles to go before I sleep.”

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All is far from well in the nation's civil and criminal justice systems

Daryl K. Brown wrote in the Penn Regulatory Review wrote about Professor Benjamin H. Barton and Judge Stephanos Bibas new book, Rebooting Justice, "all is far from well in the nation’s civil and criminal justice systems."

Barton and Bibas make the case that the dramatic transformations of American justice have been insufficient and, in some respects, ill-conceived—sometimes due to unintended consequences. In this brief response to their work, I will focus on their criticisms of and proposals for the criminal justice system, which the authors condemn as even less innovative than the nation’s system of civil justice.

One problem, Barton and Bibas argue, is that the U.S. Supreme Court’s landmark decision in Gideon v. Wainwright has not lived up to its promise of assuring every criminal defendant effective representation from a skilled lawyer—which is a failing of the political system. Gideon depends on legislatures adequately funding defense lawyers, and it is now clear that many will not.

A familiar, unhelpful response of critics is simply that they ought to. But Barton and Bibas accept the political reality that funding from legislatures is unlikely; instead, they look for realistic—if perhaps second-best—solutions. Two of their key ideas are controversial but meritorious.

First, they would “bow to reality” and cut back Gideon’s scope, so that defendants would no longer have a right to counsel if charged only with an offense punishable by less than six months in jail, the same line that defines the right to a jury trial. That proposal is potentially a big deal: There are many times more petty offenses than serious felonies in U.S. courts.

Second, they target the definition of “unauthorized practice of law,” which gives lawyers a monopoly over providing legal services. And this monopoly is why legal services provision looks so different from the provision of medical services. Regulation of medical practice permits not only doctors, but a range of other skilled, licensed professionals—nurses, nurse-practitioners, physicians’ assistants, and the like—who provide important services at lower cost. But the legal services market has no equivalents.

Certifying skilled nonlawyers to provide certain services ought to bring down prices, putting them within reach of people unable to afford lawyers. On the civil side, for example, paralegals could draft wills, or special advocates could handle bankruptcy or debt collection cases. Criminal courts could introduce new kinds of certifications for “criminal defense advocates,” trained in three semesters’ worth of law school instead of six and at much less cost, who could represent people charged with certain kinds of offenses—perhaps only misdemeanors, perhaps more serious charges as well.

The United Kingdom and Ireland already have taken a step in this direction: Unrepresented parties can have a nonlawyer “McKenzie Friend” assist them in court. Charities have arisen to provide people with experienced McKenzie Friends, and one can even hire a McKenzie Friend for a fee. Scotland allows “lay representatives” to speak in court on behalf of parties and conduct litigation.

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More than 4.1 million students endured lockdowns in 2017-2018

School shootings remain rare, even after 2018, a year of historic carnage on K-12 campuses, reported the Washington Post. What’s not rare are lockdowns, which have become a hallmark of American education and a byproduct of this country’s inability to curb its gun violence epidemic. Lockdowns save lives during real attacks, but even when there is no gunman stalking the hallways, the procedures can inflict immense psychological damage on children convinced that they’re in danger. And the number of kids who have experienced these ordeals is extraordinary.

More than 4.1 million students endured at least one lockdown in the 2017-2018 school year alone, according to a first-of-its-kind analysis by The Washington Post that included a review of 20,000 news stories and data from school districts in 31 of the country’s largest cities.

The number of students affected eclipsed the populations of Maine, Rhode Island, Delaware and Vermont combined. But the total figure is likely much higher because many school districts — including in Detroit and Chicago — do not track them and hundreds never make the news, particularly when they happen at urban schools attended primarily by children of color.

Still, on a typical day last school year, at least 16 campuses locked down, with nine related to gun violence or the threat of it. The Post’s final tally of lockdowns exceeded 6,200.

The sudden order to hunker down can overwhelm students, who have wept and soiled themselves, written farewell messages to family members and wills explaining what should be done with their bicycles and PlayStations. The terror can feel especially acute right after school shootings like the one in Parkland, Fla., when kids are inundated with details from massacres that have taken the lives of students just like them.

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GateHouse: The undeniable impact of the death penalty

Matthew T. Mangino

GateHouse Media

December 28, 2018

More than half of all Americans support the death penalty, according to a Gallup poll conducted last fall. As 2018 comes to a close, the statistics don’t live up to the polling, but they also do not tell the whole story.

This year, there were 25 men executed in the United States. That is two more executions than last year and 73 less than the 1999 high-water mark of the modern era of the death penalty.

This year’s executions were carried out in only eight states, primarily in the south. Texas again led the nation with 13 executions, next was Tennessee with three. No other state had more than two executions.

According to the Death Penalty Information Center, a non-profit advocacy group, “the prolonged decline in new death sentences in the United States reached new historic lows in 2018.”

The 42 new death sentences imposed this year mark the fourth straight year with fewer than 50 new death sentences.

In 2018, Washington became the 20th state to abolish the death penalty and even Pope Francis jumped into the fray. The pope revised the position of the Catholic Church, formally declaring the death penalty “an attack on the inviolability and dignity of the person.”

Regardless of the future of the death penalty in America, the ultimate punishment has left its mark on the entire criminal justice system. During the 1990s when violent crime was on the rise and states were churning out executions - juvenile offenders were incurring the wrath of lawmakers across the country.

State after state made it easier to try juveniles as adults, made it easier to throw juveniles in adult prison and made it common place to hand out longer and more draconian sentences. For instance, in 1995 Pennsylvania’s newly-elected governor, Tom Ridge, called a special legislative session on crime. The result was a change in charging juveniles as adults - resulting, in part, in Pennsylvania having more than 500 juveniles serving life without parole, more than any other state in the union.

Then in 2005, the U.S. Supreme Court outlawed the execution of all persons under the age of 18. The Court found that executing juveniles violated the Eighth Amendment ban on cruel and unusual punishment. The High Court did not stop there. Justice Anthony Kennedy suggested that the juvenile brain is not fully developed at age 16 or 17 and, in fact, may not be fully developed until the early 20′s. “The qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” wrote Kennedy.

Since then, the Court has also ruled that a juvenile can’t be sentenced to life without parole for a non-homicide offense, or to mandatory life without parole. However, the Supreme Court has never extended those protections beyond the age of 18.

No other decision of the U.S. Supreme Court has had more impact on modern juvenile jurisprudence than the High Court’s decision banning the execution of juvenile offenders. The reasoning behind that decision has started to creep beyond the acts of juveniles and into the realm of adult criminal justice.

Last year, a Kentucky court found that it was unconstitutional to sentence to death those who were younger than 21 at the time of their offense. Earlier this year, a federal court in Connecticut found that a man, who had been sentenced to life in prison without the possibility of parole for murders committed at age 18, should be resentenced. The court ruled that “the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.”

The impact of the death penalty is undeniable - regardless of one’s opinion about its propriety.
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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ABA Journal's 25 greatest legal movies

Ten years ago, the ABA Journal published a cover story called “The 25 Greatest Legal Movies,” a roster of top-notch legal-themed films drawn from a panel that included lawyers, law professors and, yes, an actual judge.

We wanted to update the list this year and decided to broaden the scope to consider films that tell stories outside the typical courtroom drama—films that examine how the legal system intersects with our lives in different ways.

To review the expanded top 25 CLICK HERE