Matt Mangino

It’s time to padlock Ohio debtor prison

2013-05-19T09:01:00.000-04:00

Matthew T. Mangino
The Vindicator
May 19, 2013

Some Ohio counties, in defiance of state and federal law, are locking away indigent defendants who are too poor to pay off their fines and costs.

Some states apply “poverty penalties,” such as late fees, payment plan fees and interest, when people are unable to pay all their debts in a lump sum, reported CBS News’ “Moneywatch.” Alabama charges a 30 percent collection fee. In North Carolina people are charged for using a public defender, so indigent defendants who cannot afford an attorney are forced to face jail time without counsel. Florida allows private debt collectors to add a 40 percent surcharge to the original debt.

CASH-REGISTER JUSTICE

In 2010, the Brennan Center for Justice issued a report on Florida’s reliance on fees to fund its courts. Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The process of cranking up fees to pay for courts became known as “cash- register justice.”

The report concluded that the “current fee system creates a self-perpetuating cycle of debt for persons re-entering society after incarceration.” Not to mention the court-related debt that lands some people in prison for the first time.

In a number of Ohio counties, things are even worse.

According to a recent report prepared by the ACLU, “The Outskirts of Hope,” the inability to pay a fine in Ohio is “the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants and even jail time.”

In some Ohio counties offenders are being jailed because they are too poor to pay fines. That is a violation of federal and state law and the perpetuation of an antiquated and draconian process known as “debtors’ prison.”

In the second half of 2012, more than 20 percent of all bookings in Ohio’s Huron County Jail were related to failure to pay fines, according to the ACLU.

During the same time period, Erie County jailed 75 people for failure to pay, and Parma Municipal Court in Cuyahoga County jailed 45 people.

Nearly 30 years ago, the United States Supreme Court ruled that courts cannot properly revoke a defendant’s probation for failure to pay a fine and make restitution, absent evidence that the defendant was willfully refusing to pay.

If a court initially determined a fine was the appropriate penalty for a crime, the court could not later imprison a person solely because he lacked the resources to pay the fine.

While jail is an option for an individual willfully refusing to pay a fine, jail is never an option in Ohio for failure to pay court costs and restitution. The Ohio Supreme Court has ruled that fines are criminal sanctions, and costs and restitution are civil. Yet, according to the ACLU, some Ohio counties regularly incarcerate people for failure to pay court costs.

A CRITICAL DISTINCTION

It appears that some courts fail to make the crucial distinction between defendants who have the means to pay their debts but refuse to pay, and those who are too poor to pay. Some suggest that the failure derives from the lack of consistent legal standards for determining willful nonpayment of court imposed-fines.

That is not the case in Ohio. The Ohio Constitution explicitly prohibits debtors’ prison, and the concept is further prohibited by statute and case law. The procedure is clearly defined in Ohio. Before jailing an individual for failure to pay fines, a judge must conduct a hearing where the individual is represented by counsel and has the opportunity to present evidence regarding her ability to pay the fine.

In spite of those clear directives, Ohioans are regularly jailed because they are simply too poor to pay.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, PA. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino)

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GateHouse: Debtors’ prison thriving in America

2013-05-18T08:11:00.001-04:00

Matthew T. Mangino
GateHouse News Service
May 17, 2013

As policymakers look for ways to generate revenue to fund the growing costs of the criminal justice system, an insidious practice has taken root in courtrooms across the country.

Indigent offenders are being strapped with enormous debt and then being jailed if they don’t pay. In 2010, the Brennan Center for Justice issued a report on Florida’s reliance on fees to fund its courts.

Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The process of cranking up fees to pay for courts became known as “cash register justice.”

The report concluded that the "current fee system creates a self-perpetuating cycle of debt for persons re-entering society after incarceration." Not to mention the court-related debt that lands some people in prison for the first time.

Some states apply "poverty penalties," such as late fees, payment plan fees and interest, when people are unable to pay all their debts in a lump sum, reported CBS News Moneywatch. Alabama charges a 30 percent collection fee, for instance, while Florida allows private debt collectors to add a 40 percent surcharge on the original debt. In North Carolina people are charged for using a public defender, so indigent defendants who cannot afford an attorney are forced to face jail time without counsel.

Things are even worse in some Ohio counties.

According to a recent report prepared by the ACLU, The Outskirts of Hope, the inability to pay a fine in Ohio is “the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants and even jail time.”

In some Ohio counties offenders are being jailed because they are too poor to pay fines. That is a violation of federal and state law and the perpetuation of an antiquated and draconian process known as “debtors’ prison.”

In the second half of 2012, over 20 percent of all bookings in Ohio’s Huron County Jail were related to failure to pay fines, according to the ACLU. During the same time period Erie County jailed 75 people for failure to pay and Parma Municipal Court in Cuyahoga County jailed 45 people.

Nearly 30 years ago, the United States Supreme Court ruled that courts cannot properly revoke a defendant's probation for failure to pay a fine and make restitution, absent evidence that the defendant was willfully refusing to pay. If a court initially determined a fine was the appropriate penalty for the crime, the court could not later imprison a person solely because he lacked the resources to pay the fine.

It appears that some courts fail to make the crucial distinction between defendants who have the means to pay their debts but don’t, and those who are too poor to pay. Some suggest that the failure derives from the lack of consistent legal standards for determining willful nonpayment of court-imposed fines.

That is not the case in Ohio. The Ohio Constitution explicitly prohibits debtors’ prison, and the concept is further prohibited by statute and case law. The procedure is clearly defined in Ohio and many other states. Before jailing an individual for failure to pay fines a judge must conduct a hearing where the individual is represented by counsel and has the opportunity to present evidence regarding her ability to pay the fine.

These practices are not just now being revealed. A 2010 report, In For a Penny: The Rise of America's New Debtors' Prisons lamented, "[D]ay after day, indigent defendants are imprisoned for failing to pay legal debts they can never hope to manage." Three years later in Ohio, and across the country, people continue to be jailed because they’re simply too poor to pay.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Cautionary Instruction: Pursuing the monster — Fury or bluster

2013-05-17T07:56:00.000-04:00

The Pittsburgh Post-Gazette/Ipso Facto
May 17, 2013

This week, Philadelphia abortion doctor Kermit Gosnell was convicted of first-degree murder in the deaths of three babies authorities said were born alive before having their spinal cord snipped with scissors.
Philadelphia District Attorney Seth Williams called the case "arguably the most gruesome" he's seen. "I will not mince words, Kermit Gosnell is a monster.”

Last week, three young women were rescued from a Cleveland home after being held captive for nearly ten years by Ariel Castro. The women were allegedly sexually assaulted, physically abused, tortured and at least one woman was beaten and starved in order to terminate multiple pregnancies.

"The first thing I said was, 'I knew it, I knew it,' " Fernando Colon, Castro’s neighbor, told the Los Angeles Times, "He's a monster. He's the opposite of what people thought he was."

These guys aren’t just criminals, they’re monsters -- no punishment is adequate -- extermination is the only recourse…right?

Cuyahoga County prosecutor Timothy McGinty said his office will decide whether to bring aggravated murder charges against Castro, punishable by death in connection with the pregnancies that were terminated by force.

"Capital punishment must be reserved for those crimes that are truly the worst examples of human conduct," he said. "The reality is we still have brutal criminals in our midst who have no respect for the rule of law or human life."

Are these public declarations seeking the ultimate punishment just bluster?

This week, only days after Gosnell’s conviction, he was sentenced to three consecutive life prison terms without parole for each murder in exchange for waiving his appeal rights.

Can we expect the same thing down the road for Castro?

“Nobody has ever been prosecuted [in] a full-fledged death penalty case based on pregnancy termination all the way through,” said Douglas Berman, a law professor law at Ohio State University.

Cuyahoga County has a history of using the death penalty as a bargaining chip in plea negotiations.

McGinty’s predecessor Bill Mason pursued dozens of offenders on capital charges each year. From 2009 to 2011, Cuyahoga County indicted 135 defendants on charges that could result in a death sentence. Only two of those offenders were sent to death row.

Hamilton County, home to Cincinnati, has sent the most inmates to Ohio's death row -- 61 over 30 years -- though the county has indicted fewer than 200 people on aggravated murder in three decades. Hamilton County Prosecutor Joe Deters said in an interview last year, "To use the death penalty to force a plea bargain, I think it's unethical to do that."

When Illinois Gov. Pat Quinn signed legislation last year to abolish the death penalty, prosecutors lamented the loss of an effective crime fighting tool. Although conceding that the death penalty should not be used as a bargaining chip, Illinois prosecutor Eric Weis said, “Most people fear death more than life; and most, when facing that, will take a second look.”

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Texas executes cop killer

2013-05-16T08:59:00.000-04:00

The 12th Execution of 2013

Jeffrey Demond Williams' was executed May 15, 2013 for killing a police officer 14 years ago, reported The Associated Press.

The execution came just over an hour after the U.S. Supreme Court rejected a last-day appeal from his attorneys. Lawyers contended Williams had been failed by previous attorneys at his trial and in early stages of his appeals.

Asked to make a final statement, Williams spoke quickly and angrily, beginning with "You clown police," and accused them of "killing innocent kids, murdering young kids."

"Y'all are getting away with murder all the time," he continued. "When I kill one or pop one, y'all want to kill me."

He ended his brief tirade by saying: "God has a plan for everything. ... I love everyone that loves me, I ain't got no love for anyone that don't love me."

He briefly picked up his head as the lethal drug took effect, then took several deep breaths and began gently snoring.

Williams was convicted of fatally shooting 39-year-old Houston officer Troy Blando while Blando was handcuffing him.

Blando was watching a motel where car thefts were suspected when he saw Williams drive up in a Lexus that was reported stolen.

Williams was captured about a block away. Blando's cuffs were hanging from one of his wrists.

He's the sixth Texas inmate executed this year.

To read more: http://news.yahoo.com/texas-executes-man-fatal-shooting-officer-235518665.html

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California's Three Strikes Revisions Moving Slowly

2013-05-16T08:21:00.004-04:00

Last fall, California voters overwhelmingly supported a ballot initiative, Proposition 36, calling for revisions to the state's draconian Three Strikes law. California's Three Strikes law was resulting is ridiculous situations were two-time felons were getting life prison for retail theft or other low level crimes graded as a felonies.

In fact, majorities in every California county voted to scale back the Three Strikes law so thousands of inmates serving life sentences for relatively minor third offenses would have the chance to be set free.

Five months later, there is no such unanimity among counties when it comes to carrying out the voters' wishes, reported the San Francisco Chronicle.

Whether a third-strike felon eventually will gain freedom varies greatly depending on the county that sent him away, according to an Associated Press analysis of California Department of Corrections and Rehabilitation data.

In San Bernardino County, which has the second highest number of eligible inmates, 33 percent of the 291 Three Strikes inmates have been granted release under Proposition 36. But in Los Angeles and San Diego counties, just 6 percent of the nearly 1,300 eligible inmates have had their sentences reduced so far.

Statewide, 16 percent of 2,847 eligible inmates have been resentenced.

To read more: http://www.sfgate.com/news/crime/article/AP-Exclusive-New-3-Strikes-law-varies-by-county-4487426.php#ixzz2Sc3v9nxd

The system fails when the innocent are sent to jail: As I See It

2013-05-15T07:33:00.000-04:00

Matthew T. Mangino
The Harrisburg Patriot-News
May 15, 2013

Why should you be concerned about men and women pleading guilty to crimes they claim they did not commit?

The National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at the Northwestern University School of Law, released its first report analyzing 873 exonerations between January 1989 and February 2012.

In the 873 cases that were studied, the registry found the most common reasons for wrongful conviction were perjury or false accusation (51 percent), mistaken witness identification (43 percent) and official misconduct (42 percent).

Since January 1, there have been a number of high-profile examples of exonerations after long prison stays for convictions that, in part, were based on faulty eyewitness identification.

David Ranta was freed from prison in March after serving 23 years of a 37.5 year sentence for the murder of a Brooklyn rabbi in 1990. Ranta’s lawyers had successfully argued that the police had coached an eyewitness to pick Ranta out of a line-up.

John Edward Smith spent 19 years behind bars. A former gang member, Smith adamantly maintained his innocence of murder. A wrongful convictions group, Innocence Matters, took his case and identified problems with the testimony of the lone witness that identified him as the killer. The witness recanted and a Los Angeles County Court vacated his conviction.

Randolph Arledge was sentenced to 99 years in prison in 1984 for a killing in Texas. He spent 28 years in prison until prosecutors recently agreed that he was not guilty after new DNA tests tied someone else to the crime.

More than 75,000 prosecutions every year are based entirely on the recollections of others. The overwhelming majority of eyewitness errors are not conscious or intentional. The misidentifications are the inevitable side effects of the process of remembering.

In recent years, neuroscientists have documented how these mistakes happen. According Johan Lehrer of the Wall Street Journal, “[O]ur recollections are always being altered, the details of the past warped by our present feelings and knowledge. The more you remember an event, the less reliable that memory becomes.”
Innocent people get convicted. That is an inevitable shortcoming in the system. Innocent people plead guilty—because they perceive a plea as the lesser of two evils—that is unconscionable.

State sanctioned imprisonment of the potentially innocent began in 1963 with Henry C. Alford. Alford, while pleading guilty to killing a man, said in court, “I’m not guilty but I plead guilty.” The U.S. Supreme Court affirmed his conviction in North Carolina v. Alford.

Alford pleas, as they became known, permit a defendant to concede that the prosecution can prove its case beyond a reasonable doubt while maintaining innocence. The prosecution then provides the factual basis for the guilty plea by providing the court with detailed documentation that the accused is guilty. The judge must decide whether there is sufficient evidence to support a conviction.

How prevalent are Alford pleas? In 2009, Allison D. Redlich and Asil Ali Ozdogru wrote in Alford Pleas in the Age of Innocence, six percent of state prisoners and three percent of federal prisoners entered Alford pleas. Forty-seven states and the District of Columbia allow for the Alford pleas, only New Jersey, Indiana and Michigan forbid the procedure.

There is no justification for permitting an individual to plead guilty, while claiming innocence, simply to allow that person to negotiate a less severe criminal sentence than may be imposed if the accused maintained her innocence, went to trial and was convicted.

A conviction at trial of an innocent person is a mistake. An Alford plea is tacit governmental approval of locking away a potentially innocent person.

There is no place in the criminal justice system for permitting individuals who claim innocence to plead guilty and go to prison.

Matthew T. Mangino is an attorney with Luxenberg, Garbett, Kelly & George in New Castle, Pa. He is the former district attorney for Lawrence County and a former member of the state Board of Probation and Parole.

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Judges argue the PA Supreme Court Court should strike down mandatory retirement

2013-05-14T08:05:00.001-04:00

Even though the Pennsylvania Constitution requires judges to retire in the year that they turn 70, the provision violates fundamental rights, an attorney for judges argued before the state Supreme Court last week, reported The Legal Intelligencer.

Robert C. Heim, one of the attorneys representing judges seeking to strike down the mandatory retirement provision, told the high court that mandatory judicial retirement is an example of the will of the majority unconstitutionally infringing the rights of a minority.

Heim is arguing to abolish the age limit for judges in front of a panal that has four judges facing mandatory retirement in the next 6 years: Pennsylvania Chief Justice Ronald D. Castille and Justices Max Baer, J. Michael Eakin and Thomas G. Saylor.

Heim also argued that even if a majority of Pennsylvania voters adopts a constitutional provision, it could still be invalid if it violates another part of the constitution.

"Even though it's a majoritarian government, it also protects the few against the many," said Heim.

No court, including those in Pennsylvania, has ever held that one provision of a constitution could violate another provision of the constitution, argued J. Bart DeLone, a senior deputy attorney general.

"Such a holding would upend the most basic principles of democracy," DeLone said.

The plaintiffs are seeking to overturn precedent including Gondelman v. Commonwealth, in which challenges to mandatory retirement for judges were rejected.

Hangley said that the basis for the 1968 constitutional provision mandating that the judiciary retire in their 70th year implicates the "sensitive classification" of age for which even more scrutiny by the six sitting justices is necessary. Public policies regarding age is a sensitive area that must be looked at by the judiciary to see if there is a "closer relationship between the classification you make and the policy that you're trying to accomplish," Hangley said. Hangley argued that there was not such a "closer relationship" between classifying judges on the basis of age and the public policy rationales behind the constitutional amendment.

Justice Seamus McCaffery argued there is a growing incidence of dementia, that it is unfair to president judges, especially in smaller counties, to have to say to judges with deteriorating mental conditions that it is time for them to step down, and that it is unfair to litigants whose cases are heard by impaired judges.

The Supreme Court heard the claims of Montgomery County Court of Common Pleas Judge Arthur Tilson in one lawsuit, and Philadelphia Court of Common Pleas Senior Judge Sandra Mazer Moss, who is team leader of the judicial team handling 2011 cases, 2009 cases and cases older than 2009; Philadelphia Court of Common Pleas Judge Joseph D. O'Keefe, administrative judge of the Orphans' Court; and Westmoreland County Court of Common Pleas Judge John J. Driscoll, administrative judge of the juvenile court, in the other case.

There also are lawsuits in federal court as well as one in Commonwealth Court challenging the mandatory retirement provision.

There also is legislation pending in the Senate that would put forth a constitutional amendment to eliminate mandatory retirement entirely, and there is legislation pending in the House of Representatives that would lift the mandatory retirement age up to 75.

To read more: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202599217212&kw=Pa.%20Justices%20Hear%20Challenges%20to%20Mandatory%20Judicial%20Retirement&et=editorial&bu=The%20Legal%20Intelligencer&cn=20130509&src=EMC-Email&pt=AM%20Legal%20Alert&slreturn=20130409094434

Suit seeks better treatment of mentally ill in Pennsylvania prisons

2013-05-13T07:36:00.001-04:00

John McClellan took his own life in May 2011 at SCI-Cresson, a Pennsylvania state correctional facility. McClellan’s death and alleged treatment by staff leading up to his suicide is the centerpiece of allegations lodged in a federal lawsuit filed by the Disability Rights Network and the ACLU.

The lawsuit describes the use of solitary confinement on mentally ill prisoners as a “Dickensian nightmare.” Robert Meek, an attorney for the Disability Rights Network, said that discussions with the state about a possible settlement in the case filed last month are due to begin soon.

It is the latest in a series of similar lawsuits filed by advocacy groups across the country alleging that state prison systems have not been providing adequate treatment to mentally ill inmates, reported the Johnstown Tribune Democrat.

In all cases, the lawsuits were not seeking money, just changes in the way prisons respond to the mentally ill.

“In general, I can say, we just want them to provide the adequate care,” Meek said.

In all cases, advocates spent years trying to get state prisons to make changes before finally resorting to lawsuits as a last resort, he said. Meek said his organization began trying to get the Department of Corrections to change its policies in 2006.

The lawsuit alleges that the mental health counseling that inmates in solitary confinement receive essentially consists of someone speaking to them through slots in a cell door.

The seriousness of the struggle to provide adequate treatment for the mentally ill has attracted the notice of lawmakers. The state House Judiciary Committee has forwarded a resolution to the full House that would ask a Joint State Government Commission to conduct a thorough review of the existing mental health system in the state.

The author of that legislation, Rep. Thomas Caltagirone said that Department of Corrections data suggest that as many as 20 percent of male prison inmates may have serious mental health problems. For female inmates, the numbers are worse: 40 percent may have serious mental illness.

Meek told the Tribune Democrat that the lawsuit focused on the use of solitary confinement because that provided the best opportunity to demonstrate a violation of constitutional rights. There is also ample documentation of the detrimental effect of using solitary confinement for mentally ill inmates, Meek said. The issue has been repeatedly examined in lawsuits in other states, he said.

To read more: http://tribune-democrat.com/local/x508488134/Critics-Pa-prison-system-fails-to-treat-mentally-ill

Nevada to study cost of the death penalty

2013-05-12T08:41:00.003-04:00

Nevada lawmakers want to take a closer look at the cost of keeping the death penalty in the state’s criminal punishment arsenal. However, Assembly Bill 444 seeks an interim study on the costs of the death penalty, the Las Vegas Review Journal.

There are 83 people on death row in Nevada. The last execution was in 2006 and there are no other executions imminent.

Currently 32 states have the death penalty and 10 people have been executed so far this year— 47 people were executed in 2012, according to the Death Penalty Information Center. Maryland recently abolished the death penalty, the sixth state in six years to abolish the death penalty.

“It’s meant to be dispassionate, rational, logical,” said Assemblyman James Ohrenschall, D-Las Vegas. “It’s not meant to cater to the anti-death penalty abolitionists, or the folks who think the death penalty is the best thing around.”

A report of the findings would be submitted to the 2015 Legislature, which could lead to more bills, Ohrenschall said.

He said he expects the results will show that the costs of death penalty cases are much higher than most people expect.

“It’s not fair to our legislators and our constituents not to know the cost,” he said. “Legislators, if you get that it’s so expensive, might not want to have it; not from a moral or religious ground, but from government efficiency and our limited resources.”

To read more: http://www.reviewjournal.com/news/nevada-legislature/nevada-bill-would-create-death-penalty-cost-study

GateHouse: The dissonant plea, guilty but innocent

2013-05-11T07:59:00.002-04:00

Matthew T. Mangino
GateHouse News Service
May 10, 2013

As exonerations become more commonplace and innocence organizations, whose sole purpose is to collaterally attack wrongful convictions, proliferate there continues to be a mechanism in the law of most states that permits an individual who claims innocence to nevertheless plead guilty and go to prison.

The criminal justice system’s long standing staples — eyewitness identification, fingerprints, fiber samples, tool markings — are fallible. With wrongful convictions splashed across the front page of newspapers across the country, why — in the interest of efficiency — does the system permit potentially innocent men and women to be locked away?

The road to state-sanctioned imprisonment of potentially innocent individuals began in 1963 with Henry C. Alford. Alford was indicted for first-degree murder, a capital offense in North Carolina. Although he proclaimed his innocence, he pleaded guilty to killing a man with a shotgun. He said in court, “I’m not guilty, but I plead guilty.”

The U.S. Supreme Court confirmed his conviction in 1970 and forever more Henry C. Alford’s name was attached to the controversial practice of pleading guilty — an Alford plea — while claiming innocence.

The Supreme Court ruled in Alford’s case, “An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

Forty-seven states and the District of Columbia allow for Alford pleas, only New Jersey, Indiana and Michigan forbid the practice.

Alford pleas permit a defendant to concede that the prosecution can prove its case beyond a reasonable doubt while maintaining innocence. The prosecution then provides the factual basis for the guilty plea by providing the court with detailed documentation that the accused is guilty. The judge must decide whether there is sufficient evidence to support a conviction.

An accused proclaiming innocence should have his day in court. What does the system gain by permitting an innocent person to go to prison through the means of a lenient negotiated plea as opposed to going to trial?

Whether by Alford plea or conviction at trial the accused is wrongly imprisoned. A conviction at trial of an innocent person is a mistake. An Alford plea is tacit governmental approval of locking away a potentially innocent person.

Professor Stephanos Bibas of the University of Pennsylvania Law School wrote more than 10 years ago, “Alford and nolo contender pleas, I contend, are unwise and should be abolished. These procedures may be constitutional and efficient, but they undermine key values served by admissions of guilt in open court.”

Bibas used Indiana as a compelling example of the argument against Alford pleas. The Indiana Supreme Court ruled “[T]hat judges may not accept guilty pleas accompanied by protestations of innocence. The court suggested that Alford pleas risk being unintelligent, involuntary, and inaccurate.”

Since Jan. 1, there have been a number of high profile exonerations after long prison stays. Though not Alford pleas, the exonerations point to the exhaustive efforts to free the innocent.

David Ranta was freed from prison in March after serving 23 years of a 37.5-year sentence for the murder of a Brooklyn rabbi. John Edward Smith spent 19 years behind bars in California for a murder he did not commit. Randolph Arledge spent 28 years in a Texas prison for a crime tied to another suspect through DNA.

The Eighteen Century English jurist Sir William Blackstone famously wrote, “It is better that 10 guilty persons escape than that one innocent suffer.”

It is unconscionable for an innocent person to go to prison even if that person knowingly agrees to imprisonment. There is no place in a system that has taken extraordinary measures to undo wrongful convictions to permit individuals to plead guilty to offenses for which they claim innocence.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Cautionary Instruction: It’s good to be the … ah … judge

2013-05-10T07:42:00.002-04:00

The Pittsburgh Post-Gazette/Ipso Facto
May 10, 2013

This week, Allegheny County Court of Common Pleas Judge Lester G. Nauhaus sentenced former Pennsylvania Supreme Court Justice Joan Orie Melvin in connection with her conviction on political corruption charges related to the misuse of staff for campaign purposes.

There have been a number of public officials in Pennsylvania convicted and sentenced in recent years for campaign corruption. Orie Melvin was the only judge -- the rest were lawmakers. Let’s take a look at the scorecard:

Lawmakers:

Former Pennsylvania House Speaker John Perzel was sentenced to 30 to 60 months in prison and to pay $1 million in restitution for his role in a scheme to use public resources for campaign purposes.

The once powerful lawmaker was sentenced by Dauphin County Judge Richard Lewis.

Former Pennsylvania Rep. Mike Veon was sentenced to six to 14 years in prison for his role in a public corruption case that involved using public money and employees for campaign work. Veon was also ordered to pay a $37,000 fine and $100,000 in restitution. He was also sentenced by Lewis.

Former State Rep. Bill DeWeese, a longtime power broker in the state House, was sentenced to 30 to 60 months in prison on his convictions for using state-paid employees on his election campaigns.

Dauphin County President Judge Todd A. Hoover imposed the sentence, plus $25,000 in fines and $116,000 in restitution.

Former state Rep. Stephen Stetler was sentenced to 18 months to five years in prison for his conviction on charges involving the illegal use of state employees to perform campaign work.

In addition to the prison term, Judge Hoover ordered Stetler to pay more than $466,000 in restitution and fines totaling $35,000.

Former Senator Vincent Fumo was convicted of defrauding the state Senate, a neighborhood nonprofit and a Philadelphia museum. At his 2009 sentencing he faced about 20 years.

A federal judge initially sentenced him to 55 months in prison. A federal appeals court threw out the sentence and Fumo was re-sentenced to 61 months in prison.

Former state Senate Democratic Leader Robert J. Mellow was sentenced in federal court to 16 months in prison, followed by three years supervised release.

Mellow pleaded guilty to conspiracy to commit mail fraud for using taxpayer-paid Senate staffers to do political campaign work and for filing a bogus tax return.

Former state Sen. Jane Orie, sister of Orie Melvin, was sentenced to spend two and one-half to 10 years in prison for public corruption related to campaigning with state funds and employees, as well as forgery.

Judge:

Orie Melvin was sentenced to three years house arrest and ordered to send a picture of herself with an apology written on it to every member of the Pennsylvania judiciary.

The scorecard reveals that being a judge in Pennsylvania is a pretty good deal no matter what side of the bench the judge is on.

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PA Superior Court Vacates Juvenile Ruling in Case of 11-year-old Killer

2013-05-09T12:17:00.004-04:00

The Pennsylvania Superior Court has overturned the Lawrence County adjudication of delinquency against Jordan Brown.

Brown was originally charged, at age 11, in an adult court with the first degree murder of his father's girlfriend, Kenzie Houk. She was shot in the back of the head with a shotgun as she slept. If he had been convicted of first degree murder in an adult court he would have been the youngest offender ever sentenced to life in prison without the possibility of parole.

As a result of this decision, a new juvenile proceeding will be needed for the now-15-year-old. This is not the first time the Superior Court has sent this case back to the Lawrence County Courts. Initially, a trial court decision to try Brown as an adult was overturned and a second hearing resulted in the case being sent to juvenile court.

In reviewing the trial court record, the Superior Court took exception to the trial court's determination of the evidence, declaring in repeated instances that his findings were broader than justified by the evidence, according to the New Castle News.

Most importantly, the Superior Court found that the trial judge put too much emphasis on the testimony of a single witness who arrived to do some work 45 minutes after Brown left for school. The worker noticed only his tire marks and the footprints of child in a fresh snow on the driveway. The judge used that testimony to conclude that no one else could have entered the house before or after Brown left for school.

The Superior Court concluded that Judge John Hodge had “committed a palpable abuse of discretion in rendering a ruling that is plainly contrary to the evidence.”

To read more: http://www.ncnewsonline.com/local/x319981368/Appeals-court-overturns-Jordan-Brown-ruling

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Judge throws out confession, rape prosecution in jeopardy

2013-05-09T11:46:00.001-04:00

A Chester County, Pennsylvania Common Pleas Court judge, David Bortner, has ruled that a statement taken from a suspect in two West Chester rapes cannot be used at his trial because police questioning him had improperly circumvented his Miranda rights, reported the Daily Local.

The decision regarding the suspects Fifth Amendment rights may put the prosecution of an admitted rapist in jeopardy.

Judge Bortner ruled in favor of Orobosa Izineg “Robbie” Enagbare’s motion to suppress the statement he gave to borough investigators in which he allegedly admitted sexually assaulting a borough woman, whose boyfriend he knew, after a night of drinking.

Bortner said Detective Stan Billie, in not informing Enagbare that a warrant for his arrest had been issued a day before the interview, had purposefully acted to get around the constraints of reading him his rights to remain silent and to have an attorney present during questioning.

Bortner wrote that he believed Billie did not give Enagbare the standard Miranda notification because if he did the suspect might not have spoken with him.

“This conduct is improper and impermissible,” Bortner wrote in his six-page opinion and order, according to the Daily Local. He rejected the prosecution’s contention that Billie’s strategy was acceptable because he had told Enagbare that he was not in custody and was free to leave or end the questioning.

To read more:
http://www.dailylocal.com/article/20130508/NEWS01/130509662/defendant-should-have-been-read-rights-judge-rules

Michigan looks to improve indigent defense and save money

2013-05-09T09:59:00.001-04:00

Almost five years have passed since a study showed poor criminal defendants are routinely processed through Michigan's justice system without ever speaking to an attorney in violation of the Constitution, reported the Detroit News.

It has been nearly a year since a group appointed by Michigan Gov. Rick Snyder recommended fixes, including creation of state standards so counties are forced to bring legal aid up to par.

"The biggest exposure for the state of Michigan is they offloaded this to the counties without any sort of system to make sure that counties are doing it right," David Carroll, executive director of the Sixth Amendment Center, a Boston-based group working to improve indigent defense told the News. "If they can't guarantee that the counties are doing it, the states are liable."

Legislation being considered in House and Senate committees last week and this week would create an independent, permanent state commission to establish standards ensuring effective counsel is given to low-income defendants. Lawyers' ability, training and experience would have to match the nature and complexity of the case assigned, for example.

Instead of having full-time public defender offices, many counties now control costs with low-bid, flat-fee contracts in which appointed attorneys accept cases for a predetermined fee. That causes a conflict of interest between their duty to competently defend their clients and a financial self-interest to invest less time on cases to maximize profits, according to a 2008 report commissioned by the Legislature.

Under the bills, lawyers' workloads would be better controlled, and financial incentives or disincentives leading attorneys to short-change defendants "shall be avoided."

Local governments would have to fund indigent defense at the average level spent in the three years before the creation of the commission. The state would cover new costs for counties to improve their public defense systems. Michigan is among just seven states to provide no state funding for trial-level public defense services, according to the Michigan Campaign for Justice, a group supporting the legislation.

The lead sponsors are Republicans, including one of the most conservative in the Capitol. Those GOPs look at the indigent defense issue, not as a constitution issue, but a a dollar and cents issue.

"We have people who are sent to jail who are innocent or sentenced to longer terms because they were not represented properly. Keep in mind that we also pay $30,000-plus every year for each innocent person to be in prison," GOP Rep. Tom McMillin told the News.

To read more: http://www.detroitnews.com/article/20130505/POLITICS02/305050306#ixzz2Sc4CQzEW

Texas executes man for robbing drug dealer

2013-05-08T09:37:00.001-04:00

The 11th Execution of 2013

In the seconds before being injected with a lethal dose of pentobarbital, Carroll Joe Parr told his victim's wife she should talk to her brother to learn "the truth about what happened to your husband." He convicted of killing a fellow drug dealer while robbing him outside of a Waco convenience store 10 years ago, reported The Associated Press.

Then, in what he called a "statement to the world," Parr said he was "in the midst of the truth."

"I am good. I am straight," he said.

He added that he wanted his "partners" or friends to know that he would "be back" like the Arnold Schwarzenegger "Terminator" film character.

"I'm on my way back. ... These eyes will close, but they will be opened again," Parr said before telling his family he loved them and thanking his spiritual adviser.

As the lethal drug began flowing into his arms, he took a breath, yawned, then began snoring. He was pronounced dead 19 minutes later, at 6:32 p.m. CDT.

Parr's attorneys didn't file any last-minute court appeals but Parr himself filed a petition with the U.S. Supreme Court to stop his punishment, arguing his legal help at his trial was deficient. Earlier Tuesday, the same appeal was denied by a judge in his trial court in Waco.

State and federal courts had rejected all of Parr's earlier appeals, most recently last week.

To read more: http://www.huffingtonpost.com/2013/05/08/carroll-joe-parr-executed_n_3236427.html

System Shouldn't Tolerate Guilty Pleas From Those Claiming Innocence

2013-05-07T07:38:00.000-04:00

The Pennsylvania Law Weekly
May 6, 2013

As exonerations become more commonplace and organizations whose sole purpose is to collaterally attack wrongful convictions proliferate, there continues to be a mechanism in the law in most states that permits an individual who claims innocence to nevertheless plead guilty and go to prison.

The criminal justice system's longstanding staples — eyewitness identification, fingerprints, fiber samples, tool markings — are fallible. With wrongful convictions splashed across the front page of newspapers across the country, why — in the interest of efficiency — does the system add to the potential number of innocent men and women locked away?

The road to state-sanctioned imprisonment of potentially innocent individuals began in 1963 with Henry C. Alford. Alford was indicted for first-degree murder, a capital offense in North Carolina. Although he proclaimed his innocence, he pled guilty to killing a man with a shotgun. He said, on the record, "I'm not guilty but I plead guilty."

The U.S. Supreme Court confirmed his conviction in 1970 in a decision known as North Carolina v. Alford. The Alford plea was born and forever attached Alford's name to the controversial practice of pleading guilty while claiming innocence.

The Supreme Court found, "An individual accused of crime may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."

Forty-seven states and the District of Columbia allow for the Alford pleas; only New Jersey, Indiana and Michigan forbid the procedure.

Alford pleas permit a defendant to concede that the prosecution can prove its case beyond a reasonable doubt while maintaining innocence. The prosecution then provides the factual basis for the guilty plea by providing the court with detailed documentation that the accused is guilty. The judge must decide whether there is sufficient evidence to support a conviction.

An accused proclaiming innocence should have his or her day in court. What does the system gain by permitting an innocent person to go to prison through the means of a lenient negotiated plea as opposed to going to trial?

Whether by Alford plea or conviction at trial, the accused is wrongly imprisoned. A conviction at trial of an innocent person is a mistake.

An Alford plea is tacit governmental approval of locking away a potentially innocent person.

Professor Stephanos Bibas of the University of Pennsylvania Law School wrote more than 10 years ago, "Alford and nolo contendere pleas, I contend, are unwise and should be abolished. These procedures may be constitutional and efficient, but they undermine key values served by admissions of guilt in open court."

Bibas used Indiana as a compelling example of the argument against Alford pleas. He said the state's Supreme Court "has held that judges may not accept guilty pleas accompanied by protestations of innocence. The court suggested that Alford pleas risk being unintelligent, involuntary and inaccurate."

Since January 1, there have been a number of high-profile exonerations after long prison stays. David Ranta was freed from prison in March after serving 23 years of a 37-and-a-half-year sentence for the murder of a Brooklyn rabbi in 1990. John Edward Smith spent 19 years behind bars in California for a murder he did not commit. Randolph Arledge spent 28 years in a Texas prison for a crime tied to another suspect through DNA.

Why would we add to that number? It is unconscionable for an innocent person to go to prison even if that person knowingly agrees to imprisonment. There is no place in a system that has taken extraordinary measures to undo wrongful convictions to permit individuals to plead guilty to offenses for which they claim innocence. •

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California looks to reduce prison population by paroling lifers

2013-05-06T07:46:00.002-04:00

About 30 thousand inmates are serving life sentences in California prisons. Of those inmates, more than 9,000 are currently eligible for parole. UCLA Law Professor Sharon Dolovich says if the state is looking to reduce its prison population that might be a good place to start, reported Capital Public Radio.

"All the studies show that people who have served multiple decades in prison, when they are released have an incredibly low recidivism rate compared to the population of former prisoners over all," she says.

But Dolovich says the parole granting process has become politicized, which means a lot of inmates who should be paroled are not.

In a statement, the Department of Corrections responds: "There are many offenders in California prisons who have served the minimum term of a life sentence and so are considered for parole periodically by the Board of Parole Hearings. However, many of those inmates committed heinous crimes and the decision to release any one of them on parole - let alone thousands of them - deserves very serious consideration."

Federal courts have ordered California to reduce overcrowding by either releasing inmates or increasing prison capacity by the end of the year, reported Capital Public Radio.

To read more: http://www.capradio.org/articles/2013/05/01/is-parole-the-answer-for-overcrowding-in-california-prisons

Surge in support of death penalty for Tsarnaev

2013-05-05T07:58:00.002-04:00

The decline of capital punishment marked a milestone this week, Maryland became the first state south of the Mason-Dixon line to abolish the death penalty in nearly 50 years, joining only West Virginia, reported The Associated Press.

The passage was a significant victory for Maryland Gov. Martin O'Malley, who opposes capital punishment and is considering seeking the 2016 presidential nomination. Death penalty opponents said the governor helped maintain the national momentum of repeal efforts by making Maryland the sixth state in as many years to abolish capital punishment.

In a recent Washington Post Maryland poll, 63 percent of whites and only 37 percent of African Americans said they favor the death penalty for people convicted of murder.

However, an interesting about-face occurred in the wake of the Boston Marathon bombing. A large majority of white Americans, 75 percent, support the death penalty for 19-year-old Dzhokhar Tsarnaev if convicted in federal court, according to a new Washington Post-ABC News poll.

One in three people who said they opposed the death penalty in the first poll, now support the death penalty for Tsarnaev. Apparently, although they initially said they opposed capital punishment there were some exceptions-like being aware of the crime or personally touched by it even if the touch was through a television while sitting unscathed on the living room couch.

I had previously written about this phenomenon--a surge in support for the death penalty in high profile cases.

To read more: http://abcnews.go.com/US/wireStory/omalley-signs-md-death-penalty-repeal-19092996

GateHouse: Restorative justice: What’s old is new again

2013-05-04T09:36:00.000-04:00

Matthew T. Mangino
GateHouse News Service
May 3, 2013

There is an enormous amount of money spent on keeping our communities and neighborhoods safe.

Notwithstanding what individuals invest to keep themselves safe, public funds are expended to investigate and arrest suspects. Tax dollars are used to prosecute and, a significant majority of the time, defend those suspects.

Once convicted, the government shells out tax dollars to house, guard and care for literally millions of offenders. With budgets tight — more than half of police departments surveyed by the Police Executive Research Forum reported funding cuts in 2012—lawmakers are looking for alternatives to the traditional criminal justice model “arrest’em, try’em and lock’em up.”

One alternative gaining traction is Restorative Justice (RJ). RJ is a theory of justice that emphasizes repairing the harm caused by criminal behavior. It is best accomplished when the parties meet face-to-face to establish a plan of accountability and reconciliation. A meaningful RJ effort can transform people, relationships and communities.

RJ views criminal acts more comprehensively—rather than defining crime simply as law breaking; it recognizes that offenders harm victims, communities and even themselves.

In the U.K. there are a couple of ways to use RJ and each gives victims the chance to tell offenders the real impact of their crime, to get answers to questions and to receive an apology.

Through “conversations” the police resolve low-level crime without formal proceedings by holding, usually face-to-face, a conversation between offender and victim.

Through “conferences” everyone affected by an incident is invited to a structured meeting to decide what should be done to repair the harm. The offender meets the victim to apologize and help the victim recover from the crime.

A conference or conversation between offender and victims is not as novel as it seems. It wasn’t long ago when police officers walked the beat and became familiar faces in neighborhoods across the country. It wasn’t unusual for the beat officer to bring neighborhood families together, who were involved in a dispute, to collectively find a solution.

For instance, a couple of teenagers get into a scuffle. Arrest was not routine, instead the teens and their parents were summoned to the police station to work out their differences. Back in the day, it might have been considered common sense — today its restorative justice. Either way it’s the right thing to do.

Ted Wachtel, president of the International Institute for Restorative Practices, recently wrote in the Huffington Post, “Offenders, victims and their supporters all benefit from the free exchange of emotion that happens in a restorative justice conference. The conference process provides a way for all participants to discover their common humanity and move forward.”

Does RJ work? Dr. Lawrence W. Sherman and Dr. Heather Strang wrote in “Restorative Justice: the Evidence” that RJ reduces crime. In fact, RJ seems to reduce serious crime with specific discernible victims, more effectively than less serious crime. They also suggest that RJ works with violent crimes more effectively than property crimes — a significant finding.

Sixteen states have included RJ in their respective criminal or juvenile codes. The juvenile justice system in Pennsylvania is one of those states. Pennsylvania’s juvenile system is guided by a balanced and restorative justice philosophy. The measurable goals of Pennsylvania’s RJ include writing a letter of apology, completing meaningful community service, attending victim awareness panels, and providing restitution.

The most important measure of success is recidivism — did the juvenile offend again?

According to a 2009 report by The Center for Rural Pennsylvania, only about 19 percent of Pennsylvania’s juvenile offenders recidivated compared to 46 percent of adult offenders who committed a new crime or are returned to prison.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Mangino on WKBN-TV

2013-05-04T08:58:00.000-04:00

I commented on the potential criminal penalties facing the suspect in the sad and senseless death of Shenango Township Police Officer Jerry McCarthy IV.

Click below for the interview on WKBN-TV:

http://wkbn.com/2013/05/03/woman-in-fatal-police-crash-had-driving-record/

It's Official: Maryland Repeals the Death Penalty

2013-05-04T08:38:00.000-04:00

Opponents of capital punishment marked a milestone Thursday as Maryland became the first state south of the Mason-Dixon line to abolish the death penalty in nearly 50 years, joining only West Virginia.

The passage was a significant victory for Democratic Gov. Martin O'Malley, a Roman Catholic who opposes capital punishment and is considering seeking the 2016 presidential nomination. Death penalty opponents said the governor helped maintain the national momentum of repeal efforts by making Maryland the sixth state in as many years to abolish capital punishment.

"I don't know exactly what the timing is, but over the longer arc of history I think you'll see more and more states repeal the death penalty," O'Malley said in a brief interview after the bill signing. "It's wasteful. It's ineffective. It doesn't work to reduce violent crime."

NAACP President and CEO Ben Jealous, who worked to get the repeal bill passed, noted the significance of a Democratic governor south of the Mason-Dixon line with presidential aspirations leading an effort to ban capital punishment. Jealous noted that in 1992, then-Arkansas Gov. Bill Clinton left the presidential campaign trail to oversee the execution of a man who had killed a police officer, a move widely viewed as an effort to shed the Democratic Party's image as soft on crime.

"Our governor has also just redefined what it means to have a political future in this country," Jealous said. "You know, it was just 20 years ago that a young governor with possibilities below the Mason-Dixon stopped during his presidential campaign" to oversee an execution.

West Virginia, which is also south of the Mason-Dixon line, abolished the death penalty in 1965.
Maryland is the 18th state to abolish the death penalty. Neighboring Delaware also made a push to repeal it this year, but the bill has stalled.

Diane Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, said Maryland is keeping the momentum going for other states to follow.

"It doesn't always happen overnight," Rust-Tierney said. "The more people study it, the more people understand it. This was a seven-year effort here in Maryland."

Supporters of capital punishment said the governor was taking away an important tool to protect the public. Del. Neil Parrott, a Washington County Republican, criticized the governor for moving ahead with banning the death penalty during the same session as he pushed for a gun-control bill to restrict firearms access to law-abiding citizens.

Parrott, who is chairman of a group called MDPetitions.com, scheduled a news conference on Friday to announce the group's decision on whether to launch a petition drive to try to put the death penalty ban on the ballot for voters to decide in 2014. He declined to say Thursday what the decision will be.

They would need to get one-third of the 55,736 signatures needed to petition a bill to referendum by midnight May 31 to qualify to move forward.

State Sen. Jamie Raskin, a Democrat and constitutional law professor who opposes the death penalty, said he believes pressure is building around the country to focus law enforcement resources on things that are proven to lower the homicide rate.

"The trend lines are clear," Raskin said. "There's nobody who's adding the death penalty to their state laws. Everybody is taking it away."

To read more:http://abcnews.go.com/US/wireStory/omalley-signs-md-death-penalty-repeal-19092996

The Cautionary Instruction: Guns, research and politics

2013-05-03T07:38:00.001-04:00

The Pittsburgh Post-Gazette/Ipso Facto
May 3, 2013

For all the attention that is placed on the nation’s estimated 300 million firearms, most guns rest in cases, drawers and safes. Few are holstered. Few get used to actually stop a threat. Even armed soldiers and police officers often go entire careers without firing a shot on duty, reported the St. Louis Dispatch.

For many, self-defense is the leading argument for gun ownership rights. It’s also the primary motivation for keeping a firearm, now surpassing even hunting, according to a recent Pew survey.

Data on the incidents of guns’ being used in self-defense vary widely from study to study. But only a tiny sliver of people use guns to kill someone engaged in a felony. The FBI counted just 230 such cases of justifiable homicide in 2010.

The U.S. Senate last week rejected a series of gun control proposals. The debate over gun control has been hampered by old, at times unreliable data on guns.

After the Newtown massacre, President Barack Obama issued 23 executive orders related to guns, gun violence and some would suggest gun control. Perhaps most notable among the president's actions was a memorandum directing the Centers for Disease Control and Prevention to research the causes and prevention of gun violence.

The battle over firearms has carried over to the type of research each side thinks is needed.

Dan Gross of the Brady Campaign to Prevent Gun Violence recently told a committee of experts on guns and public health about the estimated 30,000 gun deaths and 70,000 gun injuries that occur annually. He also spoke of the need for better information, including precise breakdowns of how many of the weapons involved in shootings were obtained illegally.

The NRA’s John Frazer recommended conducting surveys of inmates to determine how they choose victims, and figuring out how many guns are obtained from private transactions. He urged the CDC to study the benefits of guns.

The president included $10 million for firearm research in his budget. But it is up to Congress to allocate the money.

While gun-rights organizations have fought a wide set of proposed firearms restrictions, they so far have expressed few concerns about the president's executive actions. Michael Hammond, legislative counsel for Gun Owners of America, said the majority of the items appear inconsequential.

"Some of them basically don't do anything.…Many of them are nothing-burgers," he said. "Most are not harmful."

The “nothing-burgers” aside, public opinion appears to be on the administration's side. Fifty-five percent of Americans said in April's NBC News/Wall Street Journal poll that they support tougher gun laws -- roughly the same number who expressed a similar sentiment in the weeks following Newtown.

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Ohio executed man who raped and murdered 6-month old baby

2013-05-02T07:56:00.003-04:00

The 10th Execution of 2013

Steve Smith was executed on May 1, 2013 at the state prison in Lucasville in southern Ohio for the 1998 killing of his live-in girlfriend's 6-month old daughter, reported the Associated Press.

Smith had recently tried to get his sentence reduced to life in prison, arguing that he was too drunk to realize that his assault was killing Autumn and that he didn't mean to hurt her. The Ohio Parole Board and Gov. John Kasich turned him down unanimously.

In the 25 minutes between when Smith walked into the death chamber flanked by prison guards and when the lethal injection killed him, his only child, 21-year-old Brittney, and his niece sobbed and shook with grief.

Smith declined to say any last words, then looked at Brittney sitting behind a pane of glass.

"I love you," Brittney said as she wept.

Smith turned his head away and appeared to be struggling not to cry, his chin shaking.

As the lethal injection began, Smith took several heavy breaths before he closed his eyes. He was pronounced dead at 10:29 a.m.

Less than 3 feet away from Brittney and separated by a wall, Autumn's mother — Kesha Frye — watched Smith quietly. After he was dead, Frye's sister pumped her fists in the air.

"I'm glad he's dead, and I hope he burns in hell," Frye said surrounded by her family after the execution.

Frye's father and Autumn's grandfather, Patrick Hicks, said Smith's execution was too good for him.

"Because of him, Autumn never had a chance to take her first step, she never had her first birthday or a first day of school," he said. "It's just unfortunate that this man gets to die a peaceful death after the torture he put Autumn through."

After the execution, Smith's attorney, Joseph Wilhelm, said that his client "felt great remorse for the tragic and shocking crime he committed."

"He was well-behaved and sober while in prison, causing no problems in the institution and living each day with the guilt and grief caused by his alcohol-fueled crime," said Wilhelm, who also witnessed the execution. "While some may trumpet his execution as appropriate revenge for his crime, Ohio is no safer having executed Steven Smith than had he lived the remainder of his natural life in prison."

Back on the night of Sept. 29, 1998, Frye was awoken by Smith, her live-in boyfriend of four months.

Smith, who was drunk and naked, laid a naked and lifeless Autumn on Frye's bed, according to court records.

Frye rushed the baby and her other 2-year-old daughter to a neighbor's house and called 911. Autumn was pronounced dead after doctors tried to revive her for more than an hour, and Smith was arrested.

The baby was covered in bruises and welts and had severe injuries showing she had been brutally raped, though no semen was present.

At the home, there was no sign of forced entry, and police found a large amount of white cloth that came from Autumn's diaper strewn about; police found the rest of the diaper in a garbage bin outside, along with 10 empty cans of beer

To read more: http://abcnews.go.com/US/wireStory/ohio-set-execute-man-baby-girls-death-19080286

SCOTUS equivocal about warrant for DUIs

2013-05-01T07:59:00.001-04:00

The U.S. Supreme Court rule this month in Missouri v. McNeely, No. 11-1425 that the decision of whether to get a warrant to draw blood in a DUI case will be judged on its own facts. There will be no bright-line rule on whether a warrant is or isn't needed.

According to Lyle Denniston at the SCOTUSBlog, none of the Court’s four opinions — a majority, two separate opinions supporting the result, and one dissenting opinion — said that officers investigating drunk-driving cases must always get a warrant. But the majority did say that the Fourth Amendment does not allow police to get a blood sample without ever having to get a warrant, in any case (as the dissenting opinion suggested). So that sets up the case-by-case approach, suggesting that getting a warrant very likely would remove the doubt.

Justice Anthony M. Kennedy vote was necessary to make a majority for the requirement that each case be judged on its own facts, his separate opinion may have special importance for local governments and their police forces as they decided how to react to the new ruling.

According to Denniston, Kennedy suggested that local officials still retain the authority to work out “rules and guidelines that give important, practical instruction to arresting officers,” and that those kinds of rules might well allow blood testing without a warrant “in order to preserve the critical evidence” of blood alcohol content. As further cases develop, Kennedy wrote, the Court itself might find it worthwhile “to provide more guidance than it undertakes to give today.”

Kennedy's vote supported this conclusion: “always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.”

To read more: http://www.scotusblog.com/?p=162525

Pennsylvania Senate Judiciary Committee Examines Sentencing

2013-04-30T07:32:00.001-04:00

Determinate vs. indeterminate sentencing isn't a topic that comes up in everyday conversation - until a convict's jail term or release boils over into a public controversy.

The state's sentencing system was examined last week during a Pennsylvania Senate Judiciary Committee hearing on possible changes, the Philadelphia Inquirer. "We'll be looking at some changes," said Republican Sen. Stewart J. Greenleaf, the committee chairman, who represents parts of Bucks and Montgomery Counties. "Whether we have support for determinate sentencing, I'm not so sure. We'll have to look."

A determinate sentence, sometimes called a flat sentence, carries a specific jail term - say 10 years - depending on the crime. There is no parole.

Pennsylvania uses indeterminate sentences, which provide a minimum and maximum range. The system includes a mandatory minimum term for some crimes. The state Board of Probation and Parole determines when to release an inmate who has served at least the minimum sentence.

Philadelphia Common Pleas Court Judge Benjamin Lerner testified that the system lacks transparency and truth in sentencing. He said he is often asked at sentencing how long a defendant will serve. It is one question "I can't answer," he said, reported the Inquirer.

The sentencing judge, having heard all sides of a case, is in a better position than the parole board to determine sentence length, he said. The secrecy of the parole board process, Lerner said, also discourages participation by all parties and reaching the fairest result.

Michael C. Potteiger, chairman of the Board of Probation and Parole, said he had worked closely with legislators and the state's victim advocate to give victims and their families a direct voice in the parole process. Allowing the board to investigate and make a decision is better for public safety, he said. "Discretionary parole individualizes the release decision based on each offender's progress, reduced risk, and reentry preparation," he said, reported the Inquirer.

To read more: http://articles.philly.com/2013-04-26/news/38845713_1_parole-board-ellen-gregory-robb-sentencing-system