Pennsylvania’s Death Penalty Is in Peril—We Can, and Must, Do Better

Matthew T. Mangino

The Legal Intelligencer

May 9, 2019

Recently, the Pennsylvania Supreme Court upheld the death sentence of convicted cop killer Eric Frein. The court’s 45-page opinion, written by Justice Debra Todd, found Frein’s conviction was “supported by overwhelming evidence.”

The high court found that the Pennsylvania State Police violated Frein’s Fifth and Sixth Amendment rights by questioning him after he invoked his right to remain silent and his right to an attorney. However, the court found those violations to be harmless and not prejudicial.

The Fifth and Sixth Amendment protections are relevant in any criminal prosecution. The right to counsel and the right to remain silent are fundamental.  A thorough analysis by the court was warranted.

The court also refused to grant Frein a new trial on additional grounds that are more nuanced and specific to the death penalty. First, the court did not believe that the victim impact evidence presented by the prosecution during the penalty phase of the trial was prejudicial. Although the defense presented 29 mitigating factors, the jury found none and therefore a potentially flawed jury instruction had no impact on the verdict.

The court found that Frein ambushed Cpl. Bryon K. Dickson II with “malice and the specific intent to kill,” and his conduct warranted the death penalty. Now Frein will go to Pennsylvania’s death row with little chance of ever being executed.

The death penalty has been around in its modern form for about 43 years. In 1972, the U.S. Supreme Court outlawed the death penalty. The court ruled in Furman v. Georgia, 408 U.S. 238 (1972), that the death penalty was unconstitutional, violating the Eighth Amendment ban against cruel and unusual punishment. Supreme Court Justice Potter Stewart wrote, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

The decision forced state legislatures to review the death penalty and eliminate the arbitrary, capricious and racially discriminatory aspects of capital punishment. The court suggested that states establish criteria to direct and limit death sentences and provide the sentencing authority with information about the accused’s character and record.

In 1976, the Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976), found that three of five states that amended their death penalty statute—Georgia, Florida and Texas—did conform to the directives of Furman. The death penalty was back.

Since Gregg, there have been 1,495 men and women executed nationwide. Three of those executions took place in Pennsylvania. Keith Zettlemoyer, Leon Moser and Gary M. Heidnik are the only men to have been executed in Pennsylvania since 1976. The last execution in Pennsylvania was carried out on July 6, 1999.

In February 2015, Gov. Tom Wolf announced a moratorium on the death penalty pending a review of the Pennsylvania Task Force and Advisory Commission on Capital Punishment Report, and for purposes of full disclosure I was a member of that task force. At the time, the governor said that the decision was not based on sympathy for the inmates, but out of concern over flaws in the system. He stated that as it stood, the system is an endless cycle of court proceedings, and is ineffective, unjust and expensive.

The report took the advisory commission nearly seven years to complete. The 280-page report found, among other things, that the death penalty is costly, inconsistently applied geographically across the state, and disproportionately impacts people with intellectual disability and mental illness.

Yet, nearly a year after the report and four years after the governor’s moratorium nothing has been done to fix the death penalty. But, there is bipartisan action by Philadelphia Democrat House member Christopher M. Rabb and Lebanon Republican Francis X. Ryan to abolish Pennsylvania’s death penalty.

In a co-sponsored memo Rabb and Ryan assert, “Although Pennsylvania has the country’s fifth highest death row population, currently at 175 inmates, only three executions have occurred in recent decades, and the state has not executed anyone who did not voluntarily give up their appeals in more than 50 years. According to a Reading Eagle analysis, those three executions have cost taxpayers $816 million.”

This comes at a time when support for the death penalty is waning. Twenty states and the District of Columbia have abolished capital punishment. According to the New York Times, four additional states—including Pennsylvania—have imposed moratoriums on executions. Not only are executions down, death sentences are down as well. In 2018, 14 states and the federal government imposed death sentences, more than haif of those 42 death sentences came from four states.

Disdain for the death penalty is not new. In 1994, Justice Harry Blackmun famously said, “From this day forward I no longer shall tinker with the machinery of death.” Blackmun had voted to restore the death penalty and even to approve mandatory death sentences. But after 25 years, he said, “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”

More recently, Supreme Court Justice Stephen G. Breyer wrote in a 2015 dissent—joined by Justice Ruth Bader Ginsburg—in Glossip v. Gross, 576 U.S. ___ (2015), that it was “highly likely that the death penalty violates the Eighth Amendment,” the constitutional ban against cruel and unusual punishment.

Yet, the death penalty continues. A closer look at the current status of capital punishment is revealing. Just 10 states are responsible for about 83 percent of executions since 1976.

Evolving standards of decency in a “mature society,” the analysis used to outlaw the execution of juveniles and those intellectually disabled, have made carrying out of executions increasingly rare nationwide. Last year, there were 25 executions carried out in the United States. All 25 were carried out in only eight states.

So far this year there have been five executions nationwide. There are approximately 2,721 men and women on death row according to the Death Penalty Information Center, an anti-death penalty advocacy group.

If not another person was sentenced to death in this country, at the current rate of executions, it would take 108 years to close the doors on death row. Pennsylvania can, and must, do better.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. 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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GateHouse: Contempt of Congress: Where do we go from here?

Matthew T. Mangino

GateHouse Media

May 10, 2019

The House Judiciary Committee voted 24-16 to recommend the House hold Attorney General William Barr in contempt of Congress for failing to comply with a subpoena seeking an unredacted copy of Robert Mueller’s report. The vote came after President Donald Trump asserted executive privilege to prevent the unredacted report from going to Congress.

Congressional rules empower all committees with the authority to compel witnesses to appear and testify or produce documents for matters being investigated by a Congressional committee.

In 1961, the Supreme Court ruled that a Congressional committee must meet three requirements for a valid enforceable subpoena. First, the committee’s investigation must be authorized by a chamber congress; second, the investigation must pursue “a valid legislative purpose;” and third, the specific inquiries must be pertinent to the subject matter that has been authorized for investigation.

Once the threshold is met, Congress has three options to enforce a subpoena. First, Congress’ inherent contempt power provides constitutional authority to detain and imprison an individual until that person complies with the subpoena. The last time Congress used its inherent contempt powers was in 1934 when the Senate held William MacCracken, a former member of Herbert Hoover’s administration, after he refused a subpoena. According to the Washington Post, the Senate had nowhere to hold MacCracken so he was imprisoned at a hotel.

Second, Congress can pursue a criminal contempt citation through the executive branch seeking criminal prosecution for contempt. This is the most common method used by Congress. The person accused of contempt is charged with a misdemeanor punishable by a fine and up to a year in jail.

There are some practical concerns with this option. Where the official refuses to disclose information pursuant to the president’s decision that such information is protected under executive privilege, it is unrealistic that the Department of Justice (DOJ) will pursue a prosecution for criminal contempt. More to the point, under the current facts the DOJ would be asked to prosecute its boss, the attorney general.

Finally, Congress may rely on the courts to enforce a congressional subpoena. Under this option, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

A number of obstacles face Congress in any attempt to enforce a subpoena issued to the Attorney General, an executive branch official. Congress may be able to enforce its subpoena through a civil lawsuit; however, relying on this option to enforce a subpoena directed at the attorney general may be inadequate to protect the authority of Congress due to the time required to achieve a final court ruling.

The two most recent court cases seeking to enforce a Congressional subpoena involved former Attorney General Eric Holder in 2012 and former White House counsel Harriet Miers in 2008. According to a 2017 report from the Congressional Research Service, ”(B)oth conflicts ended the same way: The contempt charge was stuck in a court battle for so long that a new president and Congress were elected and new administration officials took office along with them.”

Trump’s blanket claim of executive privilege appears to be an effort to shield Barr from contempt. Essentially, the president is saying the redacted aspects of the report are privileged and Barr cannot turn them over to Congress.

Trump’s efforts parallel Richard Nixon’s unsuccessful effort to prevent his White House Counsel, John Dean, from testifying pursuant to a subpoena from the Watergate special prosecutor.

According to Michael Conway - a former counsel to the House Judiciary Committee - like Nixon, Trump is trying to use an expansive claim of executive privilege to thwart a legitimate Congressional investigation.

Trump seems to be prepared to do as Nixon did in 1973. Conway wrote on the NBC News website, “Nixon predicted that the Senate would question his claim of executive privilege if Dean were required to testify. If that occurred, Nixon said ‘we’ll let it go to the (Supreme) Court. Fight it like hell.’”

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: 'Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses'

When entering into a plea bargain for a misdemeanor offense, prosecutors have an ethical duty to ensure the legal and evidentiary basis of the charges are sound, according to a new formal ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility.

“Observance of the special obligations of prosecutors under the Rules of Professional Conduct is critical to achieving fair guilty pleas,” the opinion states.

According to the ABA Journal, Formal Opinion 486 provides for “Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses,” the application of these ethical standards apply regardless of constitutional requirements or whether the defendant is represented by counsel.

“Hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions,” says Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility. “Opinion 486 imposes duties on prosecutors and their supervisors to ensure that the accused has a reasonable opportunity to obtain counsel, that decisions to resolve a case through plea bargaining are grounded in the prosecutor’s independent assessment of the case, and that prosecutors reveal known collateral consequences, which may include deportation and the loss of eligibility for a wide range of public services, including food assistance and public housing. The failure to take the precautions described by the opinion especially harms the poor and minorities, who are disproportionately represented among the defendant population.”

The guidance addresses Model Rules 1.1 (Competence), 1.3 (Diligence), 3.8 (Special Responsibilities of a Prosecutor), 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Person), 5.1 (Responsibilities of a Partner or Supervisory Lawyer), 5.3 (Responsibilities Regarding Nonlawyer Assistance), and 8.4 (Misconduct).

Under Rule 3.8(a), for example, prosecutors may not bring “a charge that the prosecutor knows is not supported by probable cause.” This means that a DA can’t begin a plea bargain without assessing each charge. However, the opinion notes that because of limited resources and the perception that a misdemeanor is “lower stakes,” prosecutors often rely “uncritically” on a police officer’s report. “Unless the prosecutor has reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers who prepare the supporting documents and investigation, reliance on them is likely to be misplaced and the very discretion the Rule is designed to protect may be abused,” the opinion states.

Additionally, the opinion warns that a prosecutor’s failure to vet each charge independently, could violate the duty of competence under Rule 1.1.

The opinion comes at a time when misdemeanor criminal enforcement has received heightened attention.

About 80 percent of America’s criminal dockets are taken up by misdemeanor offenses, a number that has doubled since 1972, according to the opinion. This trend disproportionately impacts poor and minority people.

At the same time, prosecutors are engaging in plea bargaining before the right to counsel has been raised, using delay tactics or the threat of a higher sentence to keep the defendant from invoking the right to counsel. The opinion also found that tactics, including forcing a defendant to waive his or her right to counsel as a criteria to negotiate a plea, violate the Rules of Professional Conduct and potentially the Constitution.

These practices occur, in part, because many people charged with a misdemeanor are given a citation or notice to appear and are not arrested for the offense, which means the accused is not read his or her rights. In such situations, it may fall to the prosecutor to make clear to the accused their right to counsel.

Noting that, in some cases, the accused may choose to be unrepresented or does not qualify for subsidized representation from the state, prosecutors have unique and heightened duties. For example, if a prosecutor does not mention the impact of the plea deal on a separate case or the broader social or economic impacts of a criminal record, called collateral consequences, it could be considered misrepresentation or deceptive conduct under Rules 4.1 and 8.3(c), respectively.

“A prosecutor will rarely know all of the potentially relevant collateral consequences of accepting a plea or the exact nature of any subsequent sentence enhancement,” reads the opinion. “However, if the prosecutor knows the consequences of a plea—either generic consequences or consequences that are particular to the accused—the prosecutor must disclose them during the plea negotiation.”

Ultimately, the opinion looks to reinforce the idea that, “a prosecutor’s duty is to seek justice, not merely to convict.”

“The professional integrity of prosecutors is essential to the administration of criminal justice,” the opinion states.

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Extremely rare to be killed in U.S. by foreign-born terrorist

According to Cato Institute research by Alex Nowrasteh,  Terrorists by Immigration Status and Nationality: A Risk Analysis, 1975–2017:

Foreign-born terrorism on U.S. soil is a low-probability event that imposes high costs on its victims, despite relatively small risks, and low costs on Americans as a whole. From 1975 through 2017, the average chance of dying in an attack committed by a foreign-born terrorist on U.S. soil was 1 in 3,808,374 a year, and the chance of being injured was about 1 in 678,399. For 27 of those 43 years, no people were killed on U.S. soil in terrorist attacks committed by foreign-born terrorists. In 27 years, most of which overlap with the years in which no one was killed, no people were injured on U.S. soil in terrorist attacks committed by foreign-born terrorists. During the same period, native-born terrorists murdered 413 people and injured 1,346 in attacks on U.S. soil.

Foreign-born terrorism has been a more serious hazard to American life, liberty, and private property than native-born terrorism from 1975 through 2017. But foreign-born terrorism is a manageable threat given the huge economic benefits of immigration and the relatively smaller costs of terrorism. Unknown terrorists murdered 68 people during that time. The U.S. government should continue to devote resources to screening immigrants and foreigners for terrorism and other threats, but large policy changes like an immigration or tourist moratorium would impose far greater costs than benefits.

To read the full report CLICK HERE

Barr in contempt of Congress

House Democrats on the Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress for failing to provide the full version of Special Counsel Robert Mueller’s report on Russian interference in the 2016 election, and the White House responded by invoking executive privilege over it, reported Time Magazine.

The immediate consequences will be mostly symbolic. About 10 percent of the Mueller report was redacted, at times clearly because it involved information relevant to the upcoming trial of longtime Trump confidant Roger Stone. The next step in the proceedings will be a vote on the House floor. Although it will likely pass since Democrats control the chamber, Barr will probably face few legal repercussions, as federal prosecutors are unlikely to pursue criminal penalties for a contempt of Congress charge against their own boss.

But the speed with which Democrats took the nearly unprecedented measure — it is only the second time in U.S. history that the nation’s top law enforcement officer was held in contempt of Congress — and the surrounding cloud of suspicion and counter-charges reflected the unprecedented scope of conflict between the executive and legislative branches.

In the 48 hours since the Judiciary Committee announced it would hold contempt proceedings on Monday, the Trump Administration issued a flurry of rejections for congressional requests, adding to an already deep pile. On Monday, Treasury Secretary Steve Mnuchin announced he would not turn over the President’s tax returns to the Ways and Means Committee; on Tuesday, the White House told former White House Counsel Don McGahn not to comply with a subpoena from the judiciary committee; and on Wednesday, after a day of futile negotiations between the committee and the Department of Justice, it invoked executive privilege over the redacted portions of the Mueller report.

Democrats unsurprisingly used the high-profile proceedings on contempt to highlight what Nadler is deeming a constitutional crisis. As the markup stretched into the afternoon, the sentiments became less about Barr’s actions and more about about preserving the powers of the legislative branch.

“This is unprecedented,” Judiciary Chairman Jerrold Nadler said in his opening statement after listing all the other ways the White House has stonewalled Congress. “If allowed to go unchecked, this obstruction means the end of congressional oversight. As a co-equal branch of government, we should not and cannot allow this to continue.”

Every member of the committee was allotted a brief time to speak, and the tenor reflected the partisan tensions. Democrats’ comments largely echoed Nadler’s about the state of U.S. democracy. Republicans, by comparison, defended Barr, arguing that Democrats were on a “witch hunt,” and wanted Barr to break the law by handing over the un-redacted report. Several also pointed out Democrats moved much more quickly to hold Barr in contempt than Republicans on the oversight committee did with his Democratic predecessor Eric Holder in 2012 when they were seeking documents in the Fast and Furious case.

“[Democrats] have moved from request to contempt vote in only 43 days, and yet the Justice Department is still at the negotiating table — waiting for Democrats to arrive in good faith,” said ranking member Doug Collins, adding that Democrats want to “sully Bill Barr’s good name and reputation.”

Department of Justice spokesperson Kerri Kupec released a statement after the vote, calling it “politically motivated,” and “unnecessary.” “It is deeply disappointing that elected representatives of the American people have chosen to engage in such inappropriate political theatrics,” she said.

There is undoubtedly some irony that Barr is the first administration official facing contempt proceedings when his department, unlike the White House counsel’s office, actually came to the table to negotiate. And it is also true that the vote to hold Holder in contempt was, like Barr, upheld along party lines. But veterans of Congressional oversight say that, more than anything, it is this partisanship that is the problem.

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Pushback from Trump administration for reform of forensic evidence

Three years after an embattled forensics profession had started to turn hopeful about reform, things have seemed since then to go backward, with aggressive pushback from the FBI and Department of Justice even under the Obama administration, and the curtailment of a number of federal crime-science initiatives by the Trump administration, The Intercept reports.

A decade marked by critical reports, scandals, and a rising tally of exonerations have made it hard for even the most stubborn forensic experts to ignore the problem of junk science. But the ongoing crisis within forensic science remains woefully unresolved.

At the most recent meeting of the American Academy of Forensic Sciences, the plenary speaker — veteran Kansas City, Missouri, prosecutor Ted Hunt, tapped by Attorney General Jeff Sessions to head up DOJ’s Forensic Science Working Group — embodied a spirt of skepticism and pushback.

Hunt was among those who served on the Obama-era National Commission on Forensic Science, where he clashed with his colleagues on a number of issues — including those designed specifically to improve the reliability of forensic science. “Ted Hunt,” one veteran conference attendee concluded, “is the Mike Pence of forensics.”

he blamed critics — undisguised jabs at the Innocence Project, outspoken individuals within the forensics community, and journalists — for the crisis of confidence within the field. “Much of it is … strategic, dishonest, and destructive. Some of it is little more than agenda-driven advocacy in the guise of promoting scientific purity — a genre I call ‘forensic science fiction,’” he said. Others promote “what I call ‘junk journalism’ — media stories full of partisan misinformation, strawman arguments, and half-truths about forensic science.”

While Hunt’s speech might’ve provided him a few satisfying zinger moments, it did little to reflect the sobering reality on the ground: Many forensic practices still lack meaningful scientific underpinning even though they are regularly used to prosecute individuals charged with crimes. The federal government has thrown what appears to be an impressive amount of money toward funding foundational research in forensics — more than $200 million since the NAS report was released — but that’s hardly enough to cover the amount of ground necessary. In 2014, as one conference presenter noted, the feds funded forensic research at roughly $21 million; that same year the Department of Defense spentmore than $41 million on Viagra. And there remain questions — and contention — over what should be researched and to what degree.

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Congress may hold AG Barr in contempt of congress

Congress indicated they could be forced to hold Attorney General William Barr in contempt of Congress if he did not cooperate with a subpoena for an unredacted copy of special counsel Robert Mueller’s report on the Trump campaign and Russian interference in the 2016 election, reported the USA Today. The Justice Department missed Wednesday's deadline to hand over the subpoenaed report, writing to Nadler that the committee had not "articulated any legislative purpose for its request."  congressional Democrats said they could be forced to hold Attorney General William Barr in contempt of Congress if he did not cooperate with a subpoena for an unredacted copy of special counsel Robert Mueller’s report on the Trump campaign and Russian interference in the 2016 election. The Justice Department missed Wednesday's deadline to hand over the subpoenaed report, writing to Nadler that the committee had not "articulated any legislative purpose for its request."

While Congress is given powers to investigate and subpoena individuals and entities, it typically does not just arrest people for not cooperating. 

Instead, Congress can hold a person in contempt if their actions are viewed as obstructing legislative business or a congressional investigation.

Lawmakers have three routes: 

• Inherent contempt: The Supreme Court has ruled that lawmakers have inherent contempt powers to have an individual held until the person "provides the testimony or documents sought, or until the end of the session," reads a 2017 report from the Congressional Research Service, Congress' policy research arm. Using this process is incredibly rare and hasn't been done in modern times, not since the 1930s.
• Criminal contempt: Congress also has the option to use its "criminal contempt" powers, a law that allows lawmakers to charge an individual with a crime. This is the process listed above with regard to Barr that's more common and would have to be passed through one of the chambers in Congress. 
• Civil judgment: The third option is going through a civil process in the courts. Lawmakers can seek a civil judgment, asking a judge to enforce a subpoena. 

The most common method used by Congress has been criminal contempt; a charge is a misdemeanor and punishable by jail time of between a month and a year and a fine.

But it's not as easy as simply charging someone. The measure doesn't have to pass in both the House and Senate and can start in committee, meaning in this case, Nadler could bring the issue before the House Judiciary Committee. 

After it passes with a simple majority, it would move to a full vote in the House.

Once approved, the House speaker or the Senate president pro tem then turns the matter over to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action," according to the law. 

While Congress has broad investigative powers, there are limits. The Supreme Court has said that congressional inquiries should have a legitimate legislative purpose and should not be used for political purposes to embarrass, expose wrongdoing or target a particular person or group.  

And holding someone in contempt of Congress has caveats and drawbacks. Jailing someone until they testify or offer up documents might seem like an easy solution but the CRS notes that Congress is not allowed to hold someone past the "end of the current session of Congress." The process could also likely end up worsening tensions between each branch of government and give the public a front-row seat to the chaos. Plus some, like Barr, have armed security and it's unclear what would happen if Congress attempted to arrest him. 

And while a civil claim could be the path of least resistance, it could be time-consuming and delay an investigation. Even criminal contempt has a catch: It's up to the Justice Department to actually take up a criminal case against someone. In the past, the Justice Department has declined to prosecute criminal contempt-of-Congress cases.

There's also the question of executive privilege, which President Trump said was being considered to block his current and former aides from testifying before lawmakers. 

It isn't clear whether Congress' contempt powers could trump the president invoking executive privilege as neither the White House nor Congress has sought a resolution to the question from the Supreme Court, both sides fearing they might lose.  

Congress would have a harder time investigating presidents for decades to come if the high court ruled against it and if the White House lost, it would open the door for a multitude of congressional inquiries.

Congress rarely holds people in contempt. But it has done so in the past to force witnesses to appear or produce documents. 

The last time Congress used its inherent contempt powers was in 1934 when the Senate held William MacCracken, a former member of Herbert Hoover's administration, after he refused a subpoena. The Senate had nowhere to hold MacCracken so he was imprisoned at a hotel, according to the Washington Post. 

But Congress has voted on contempt charges more recently, even discussing using it against members of the Trump administration last year after former White House adviser Steve Bannon refused to answer questions. 

Other examples include in 2012 when the House voted to hold then-Attorney General Eric Holder in contempt for declining to provide documents and in 2014 after IRS official Lois Lerner invoked her Fifth Amendment right against self-incrimination during a congressional hearing. In both cases, the Justice Department declined to bring criminal cases. 

While a contempt charge normally moves through the criminal justice system and the courts, there's one final method that has gotten attention in recent days, given the president's reluctance to cooperate with congressional investigations. 

Lawmakers can elect to pursue a contempt-of-Congress charge in an impeachment proceeding, which is a political process to remove the president from office that moves through Congress instead of the courts. 

A contempt-of-Congress charge was one of the three articles of impeachment filed against President Richard Nixon in 1974 after he defied subpoenas for documents and information that Congress said it needed for an impeachment inquiry. 

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