Federal prosecutors get first guilty verdict in U.S. Capitol riot

 A Texas man was convicted of storming the U.S. Capitol with a holstered handgun, a milestone victory for federal prosecutors in the first trial among hundreds of cases arising from last year’s riot, reported The Associated Press.

A jury also convicted Guy Wesley Reffitt of obstructing Congress’ joint session to certify the Electoral College vote on Jan. 6, 2021, of interfering with police officers who were guarding the Capitol and of threatening his two teenage children if they reported him to law enforcement after the attack. Jurors deliberated about three hours and convicted him on all counts.

The verdict could be a bellwether for many other Capitol riot cases. It could give Justice Department prosecutors more leverage in plea negotiations and discourage other defendants from gambling on trials of their own.

Gregg Sofer, a former federal prosecutor who served as U.S. attorney for the Western District of Texas from October 2020 to February 2021, said before Reffitt’s trial started that it would be “the canary in the coal mine.”

“If you’re a defendant awaiting trial at this point, the canary just died,” said Sofer, now a partner at the law firm Husch Blackwell. “I do think it is likely to affect people’s perceptions about the likelihood of their success.”

Reffitt, 49, of Wylie, Texas, didn’t testify at his trial, which started last Wednesday. He showed little visible reaction to the verdict, but his face was covered by a mask.

Outside court, his wife Nicole said the verdict was “against all American people. If you’re going to be convicted on your First Amendment rights, all Americans should be wary. This fight has just begun.”

She said her husband was being used as an example by the government. “You are all in danger,” she said.

In a statement after the verdict, U.S. Attorney Matthew Graves in Washington thanked the jury “for upholding the rule of law and for its diligent service in this case.”

During the trial’s closing arguments on Monday, Assistant U.S. Attorney Risa Berkower told jurors that Reffitt drove to Washington, D.C., intending to stop Congress from certifying President Joe Biden’s electoral victory. Reffitt proudly “lit the fire” that allowed others in a mob to overwhelm Capitol police officers near the Senate doors, the prosecutor said.

Reffitt was not accused of entering the Capitol building. Defense attorney William Welch said there is no evidence that Reffitt damaged property, used force or physically harmed anybody.

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U.S. Senate finally approves anti-lynching law

The Senate unanimously approved a bill that would make lynching a federal hate crime, explicitly criminalizing a heinous act that has become a symbol of the nation’s history of racial violence, reported The New York Times.

It was a remarkable moment after more than a century of failed attempts. The historic bill carries the name of Emmett Till, the 14-year-old Black boy tortured and murdered in Mississippi in 1955. Under the measure, the crime is punishable by up to 30 years in prison.

“Hallelujah — it is long overdue,” said Senator Chuck Schumer of New York, the majority leader, who oversaw the legislation’s passage in a sparsely filled chamber Monday evening. He added, “That it took so long is a stain, a bitter stain on America.”

Without any senators showing up to object, the bill cleared the Senate without a formal vote. The measure now heads to President Biden’s desk for his signature, having passed the House in late February with only three lawmakers opposed.

 “Although no legislation will reverse the pain and fear felt by those victims, their loved ones and Black communities, this legislation is a necessary step America must take to heal from the racialized violence that has permeated its history,” Senator Cory Booker, Democrat of New Jersey and a sponsor of the legislation, said in a statement Monday.

Failure to pass such a measure before this year had become a glaring example of the nation’s inadequate response to a crime that has long terrorized Black Americans. The N.A.A.C.P. estimated, based on its records, that Black victims accounted for 72 percent of 4,743 lynchings that occurred between 1882 and 1968.

“This is the year, now is the time, that we do the right thing,” said Senator Tim Scott, Republican of South Carolina and a longtime champion of the legislation, in an impassioned speech on the Senate floor on Thursday. “Not for Republicans or Democrats, but for Americans who’ve watched, with bewildered eyes and confused hearts, their government fall short on issues of importance to them again and again and again. Let this year be the year we put politics to the side and we get it done.”

Representative George Henry White of North Carolina first introduced legislation to make lynching a hate crime in 1900; he was the only Black lawmaker in Congress at the time. The bill never made it to the House floor for a vote. In the years since, more than 200 similar bills have been filed, lawmakers estimated.

In 2005, the Senate formally apologized for its failure to act on the issue, including when Southern senators blocked similar legislation during the Jim Crow era. More than a decade later, three Black senators — Mr. Scott, Mr. Booker and Kamala Harris of California — began a renewed effort to see an anti-lynching measure signed into law.

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White supremacists become better coordinated nationwide

The distribution of white supremacist propaganda around the country remained high last year, with nearly 5,000 incidents reported, or an average of 13 per day, the Anti-Defamation League says.

The ADL's annual report on such incidents noted increasing levels of coordination and mobilization within the movement, reported NPR. 

"This activity is more coordinated than ever before," says Oren Segal, vice president of the ADL's Center on Extremism. "It's disturbing that white supremacists and anti-Semites can mobilize supporters quickly to target neighborhoods in multiple states."

Although slightly lower than the 5,125 events reported in 2020, last year's number was still almost double the number of similar incidents reported in 2019.

The ADL documented 4,851 instances during 2021 in which racist, antisemitic and anti-LGBTQ fliers, stickers, posters, banners and stenciled graffiti were distributed in the United States. It was the second-highest level since the group began tracking such data in 2017.

Hateful propaganda appeared in every state except for Hawaii, with the highest levels of activity reported in Pennsylvania (473), Virginia (375) and Texas (327), the ADL said.

Texas is the home of Patriot Front, the group responsible for the vast majority of propaganda distribution at more than 82% of the national total. Patriot Front is also responsible for holding two of the largest white supremacist events in 2021, including a July event in Philadelphia and a December demonstration at the National Mall in Washington, D.C.

"White supremacists more frequently are resorting to hate propaganda as a tactic to spread their noxious ideas and recruit new membership," says ADL CEO Jonathan Greenblatt.

The annual report comes amid a surge in antisemitic hate fliers this year, with at least 15 states targeted in January and February. Authorities were investigating the distribution of antisemitic and racist flyers in Colleyville, Texas, where a gunman took worshippers hostage at a synagogue in January.

Some examples of hate speech highlighted in the ADL report are instances where banners were draped over highway overpasses and other high visibility locations. It also mentions fliers blaming Jews for the spread of COVID-19 and stickers proclaiming "Hitler was right," which were attached to a menorah outside a California synagogue in October.

"This is an alarming trend that needs to be checked, now," Greenblatt says.

The report also notes a steep decline of incidents of white supremacist propaganda distribution on college campuses, potentially due to the pandemic.

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Mangino discusses the Curtis Reeves case on Law and Crime Network

 Watch my interview with Jesse Webber on Law and Crime Network about the Curtis Reeves trial in Florida.

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Purdue Pharma's Sackler family reaches another deal with states

Members of the billionaire Sackler family and their company, Purdue Pharma, have reached a deal with a group of states that had long resisted the company’s bankruptcy plan — a crucial step toward funneling billions of dollars from the family’s fortune to addiction treatment programs nationwide, according to a court filing, reported by The New York Times.

If Judge Robert Drain, who has presided over Purdue’s bankruptcy proceedings in White Plains, N.Y., approves the agreement, the Sacklers would pay as much as $6 billion to help communities address the damage from the opioid crisis. In return, Sackler family members would get the prize they insisted upon for nearly three years: an end to all current and future civil claims against them over the company’s prescription opioid business.

The Sacklers’ liability protection would not extend to criminal prosecutions.

The deal still faces potential hurdles in the courts, but it is the first time in three years of negotiations that all states have accepted a settlement agreement with Purdue Pharma and the Sacklers. The new agreement includes an increase of at least $1 billion in the amount the Sacklers would pay. In addition to the family’s money, Purdue itself is contributing, through cash and revenue from future sales, payments expected to amount to $1.5 billion by 2024, with far more to come.

The agreement marks a significant moment in the national opioid litigation, an effort by state, local and tribal governments to hold companies across the vast pharmaceutical industry accountable for the crisis of opioid addiction that led to at least 500,000 deaths since 1999.

Though cases have been filed against dozens of companies, Purdue became the target of the earliest and greatest number of lawsuits, because its signature opioid painkiller, OxyContin, initially dominated the market.

“We’re pleased with the settlement achieved in mediation, under which all of the additional settlement funds will be used for opioid abatement programs, overdose rescue medicines and victims,” Purdue said in a written statement. “With this mediation result, we continue on track to proceed through the appeals process on an expedited schedule, and we hope to swiftly deliver these resources.”

While the deal is a breakthrough, it is likely to leave many people disappointed that members of the Sackler family did not acknowledge wrongdoing or any personal responsibility for the public health .

In a statement attached to the court filing, the Sacklers said: “While the families have acted lawfully in all respects, they sincerely regret that OxyContin, a prescription medicine that continues to help people suffering from chronic pain, unexpectedly became part of an opioid crisis that has brought grief and loss to far too many families and communities.”

Other manufacturers, distributors and big retailers such as C.V.S., Walgreens and Walmart, are still defendants in opioid cases. A few have resulted in verdicts, with mixed outcomes for plaintiffs and the company defendants. Some significant settlements have already been reached, notably a $26 billion agreement last month by three major distributors — AmerisourceBergen, Cardinal Health and McKesson — along with Johnson & Johnson and states and localities, and a separate one with tribes. But seasoned lawyers involved in the cases said it will take years to resolve them all.

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PLW: Superior Court Panel Stresses Importance of Evidence at Preliminary Hearings

Matthew T. Mangino
The Legal Intelligencer
March 3, 2022

A recent Pennsylvania Superior Court panel has weighed in on the ongoing evolution of what evidence prosecutors need to sustain a prima facie case at a preliminary hearing.

A look back more than 30 years will help put into context the latest decision of the Superior Court. In 1990, the Pennsylvania Supreme Court decided Commonwealth Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990).

Prior to Verbonitz prosecutors could establish a prima facie case at a preliminary hearing by presenting only hearsay evidence. In Verbonitz, the only evidence offered by the commonwealth at the preliminary hearing was the testimony of a police officer about a statement made by a witness. The Pennsylvania Supreme Court held that the commonwealth failed to establish a prima facie case. Justice Rolf Larsen wrote in a plurality opinion, “Fundamental due process requires that no adjudication be based solely on hearsay evidence.”

The importance of the preliminary hearing was firmly established by the U.S. Supreme Court through a series of decisions beginning with Coleman v. Alabama, 399 U.S. 1(1970), which found that the preliminary hearing is a critical stage of a criminal case and requires the assistance of counsel. In Gerstein v. Pugh, 420 U.S. 103 (1975), the high court found that witness testimony and the opportunity for cross-examination are essential to pretrial matters.

In Pennsylvania, appellate decisions further expounded on the importance of the preliminary hearing. In Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. Ct. 2002), the Superior Court ruled that the use of only hearsay testimony fails to meet the threshold for evidence upon which the preliminary hearing judge may rely. In Commonwealth v. Nieves, 876 A.2d 423, (Pa. Super. Ct. 2005), the court found that a prima facie case can be established by hearsay only when the prosecution provides other evidence in addition to hearsay.

Twenty years after Verbonitz, Pennsylvania Rule of Criminal Procedure 542 was established and preliminary hearings were got a bit twisted. Subsection (E) provides as follows:

“Hearsay as provided by law shall be considered by the issuing authority in determining     whether a prima facie case has been established. Hearsay evidence shall be sufficient to        establish any element of an offense requiring proof of the ownership of, non-permitted use of, damage to, or value of property.”

Rule 542 was established in 2011. It appeared that the new rule was intended to lessen the burden on prosecutors to call witnesses to prove “ownership of, nonpermitted use of, damage to, or value of property.”

However, the new rule’s comments appeared to imply that hearsay could be used to establish any element of a prima facie case. Prosecutors ran with that interpretation.

In 2013, the comment to Rule 542 was amended. The comment, as it reads today, provides “Hearsay, whether written or oral, may establish the elements of any offense. The presence of witnesses to establish these elements in not required at the preliminary hearing.”

The Pennsylvania appellate courts were then tasked with interpreting Rule 542. In Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. Ct. 2015) the Superior Court found “By the rule’s own terms, the panel found that hearsay evidence alone was enough for a prima facie case.” In 2017, the Superior Court ruled in Commonwealth v. McClelland, 165 A.3d 19 (Pa. Super. Ct. 2017), in support of hearsay at a preliminary hearing, “admitting hearsay at the preliminary hearing would be irrelevant if the defendant was convicted at trial, and if the defendant was acquitted, then the error’s impact would be ‘minimal’ because there would be no permanent loss of liberty,” see Commonwealth v. Harris, 2022 Pa. Super. 1, at p. 9 (Pa. Super. Ct. 2022). The logic employed by the Superior Court appeared to render the preliminary hearing meaningless.

After the decision in McClelland, the criminal preliminary hearing in Pennsylvania, at least for the moment, was of no practical use nor did it provide any meaningful protection to a defendant. In interpreting Pennsylvania Rule of Criminal Procedure 542 (E) the Pennsylvania Superior Court authorized magisterial district judges to hold a defendant for court following a preliminary hearing at which the commonwealth presented only hearsay evidence. I wrote here in 2018, the preliminary hearing in Pennsylvania had been “eviscerated.”

Then in 2020, the Pennsylvania Supreme Court reversed the Superior Court in Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020) which has come to be referred to as McClelland II.

In McClelland II, the Supreme Court had “little difficulty in stating with certainty that five Justices in Verbonitz agreed a prima facia case cannot be established by hearsay evidence alone, and the common rationale among those justices involved due process considerations.” The court held that hearsay evidence alone cannot establish a prima facie case at a preliminary hearing.

Just as we flipped the calendar to 2022, the Superior Court further interpreted Rule 542. On Jan. 3, the Superior Court decided Commonwealth v. Harris, 2022 Pa. Super. 1 (Pa. Super. Ct. 2022). Ronald Harris was accused of shooting a man over drugs. The victim failed to show up for two preliminary hearings. When the victim failed to show for a third hearing the District Attorney’s Office called the police officer who took a statement of the victim. The officer testified over the objection of Harris’ counsel. The case was bound to trial.

Although Harris filed a motion to quash the information, he remained incarcerated for nearly 18 months, despite the fact that the commonwealth had a witness unwilling to cooperate.

The court in Harris found that “Nothing in Rule 542 (E) prevents the application of Verbonitz requiring that all material elements of the criminal offense need to be proved at a preliminary hearing by nonhearsay evidence.”

The court went on to say, “While a preliminary hearing is not a trial and due process is a flexible concept, the hearing is still a critical stage in the proceedings that is intended under Rule 542 to be more than a mere formality.”

The court continued, “We conclude that the Supreme Court’s holdings in Verbonitz and McClelland precludes the commonwealth from relying on hearsay alone at a preliminary hearing to establish a prima facie case that the defendant committed a crime.”

The Superior Court affirmed the order of the trial court dismissing the charges against Harris, and has provided some guidance for criminal law practitioners. The preliminary hearing has regained its status as a meaningful proceeding that provides, at least, limited protections for those accused of a crime.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.

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Biden debunks 'defund police' in SOTU speech

It’s not news that President Biden opposes the “defund the police” movement. He said as much when the movement got off the ground two years ago. Since then, the unpopular idea has fallen even more out of favor, living on mostly in the comments of a handful of liberal hard-liners and in attacks from Republicans seeking to attach those comments to the broader Democratic Party. It’s the kind of thing that politicians are usually loath to talk about because they have already addressed it, and it should be a nonissue.

And yet, Biden decided to broach the topic in his State of the Union address. The apparent purpose: to try to put an end to it, once and for all, reported the Washington Post.

It wound up being perhaps Biden’s biggest bipartisan applause line of the entire night, save for his early comments on Ukraine.

 “We should all agree the answer is not to defund the police; it’s to fund the police,” Biden said.

Receiving an overwhelmingly positive response — including from Republican leaders who stood and applauded — Biden went off his prepared remarks to drive the point home.

“Fund them,” he said. “Fund them.”

He added, returning to his script: “Fund them with resources and training, resources and training they need to protect our communities.”

While Biden has opposed defunding the police for a long time, this was more than checking a box. It was leaning hard into a repudiation of an idea that at least some members of his party have embraced — depending upon how they defined “defund.”

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