MCN/USA TODAY NETWORK: Virginia begins down the road of racial reconciliation

Matthew T. Mangino
More Content Now/USA Today Network

February 12, 2021

Last week, the Virginia House of Delegates voted to abolish the death penalty. In the modern era of the death penalty Virginia is second only to Texas in the number of condemned prisoners sent to their death. Gov. Ralph Northam has promised to sign the bill, which will make Virginia the 23rd state in the country without a death penalty.

            Virginia’s use of the death penalty dates back over 400 years—to 1608, when Jamestown settlers carried out the first recorded execution in North America. According to TIME, in the centuries since, amid periods of slavery, Reconstruction and Jim Crow segregation, Virginia has executed hundreds of people.

Virginia has also been the setting for at least 87 documented lynchings between 1888 and 1932, including Shedrick Thompson, a black man who was lynched in Linden, Virginia in 1932. According to research by James Madison University, even though a small number of the victims of mob violence were white, lynching was essentially a form of state-sanctioned terrorism against African Americans—few of those involved in lynchings were ever indicted and even less faced trial.

Virginia is also the state that sentenced Daryl Atkins to death twice and where seeking the death penalty for a third time. The irony is that Atkins’ first death penalty was overturned by the U.S. Supreme Court when the court declared that executing the intellectually disabled violated the Eighth Amendment ban against cruel and unusual punishment. The landmark decision carries his name Atkins v. Virginia.

Atkins’ case was remanded to Virginia for resentencing and the trial court sentenced him a second time to death.  The case was sent back for a third sentencing when Atkins was removed from death row for an unrelated matter.

Gov. Northam was involved in a racist scandal himself. A decades-old photo of a person in blackface and another in a Ku Klux Klan robe surfaced from Northam’s medical school yearbook page.

Virginia is the home of Washington, Jefferson, Madison and Monroe—literally the founding fathers of the United States of America.  They were also slave owners. Virginia has a lot to reconcile.

Northam’s scandal nearly forced him from office. He resisted widespread calls to resign and pledged the remainder of his term to rebuilding trust and addressing Virginia’s long history of racism and inequity.

To that end Northam empaneled The Commission to Examine Racial Inequity in Virginia Law in 2019 with an examination of racist laws that—though long unenforced—had remained on the books.

The commission is comprised of lawyers, judges and law professors chaired by a former state chief deputy attorney general. The 100-plus page report focuses on six policy areas: housing, education, criminal justice, health, environmental justice and agricultural equity.

In the realm of criminal justice, abolition of the death penalty is a start. Blacks have been disproportionately represented in terms of executions in Virginia.  As for education, the commission proposed overhauling the school funding formula, repealing statutory language that limits the power granted to the state to draw school zone lines, and encouraging programs like choice zoning and magnet schools to improve integration, reported The Associated Press.

With regard to housing, the commission recommended increasing affordable housing and reducing evictions through changes to landlord-tenant laws.

The report also calls for collecting better data on racial disparities in the criminal justice system; loosening or repealing restrictions on voting rights for people convicted of felonies; and closing the gap in healthcare access.

The report provides recommendations, not mandates, but it is a start for a state that a little more than three years ago was maligned for a rally of white nationalists and neo-Nazis in Charlottesville that turned violent and deadly.

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MCN/USA TODAY: An investment in education is an investment in crime prevention

Matthew T. Mangino
More Content Now-USA TODAY NETWORK
February 5, 2021

Pennsylvania Gov. Tom Wolf recently unveiled, as part of his 2021-22 budget, a plan to invest $1.3 billion in public schools. As part of the initiative the governor has also taken on a taboo subject - increased taxes.

“My legislative plan is an investment in Pennsylvania’s students, but really it’s an investment in the future for all of us - for every Pennsylvanian,” said Wolf.

Investments are typically made with an eye toward cashing in. Can an investment in education pay dividends?

Several years ago the Alliance for Excellent Education reported that America could save billions of dollars in annual crime costs if school districts could raise the male high school graduation rate. While graduation rates have increased according to a 2019 Alliance report, males and “historically underserved students” have lagged behind.

“The nation needs to focus dollars and efforts on reforming school climates to keep students engaged in ways that will lead them toward … a career and away from crime and prison,” said Bob Wise, president of the Alliance for Excellent Education and former governor of West Virginia. “The school-to-prison pipeline starts and ends with schools.”

There was a time when disruptive students were sent to see the principal. Today in some school districts, the disruptive student is handcuffed and ushered off to court. The school-to-prison pipeline is overflowing with students.

According to the Washington Post, more than 3 million students each year are suspended or expelled from school across the United States. Federal data, though limited, show that nearly a quarter of a million students are annually referred to law enforcement.

There is an indirect correlation between educational attainment and arrest and incarceration rates - particularly among males. According to data compiled by the U.S. Department of Justice, Bureau of Justice Statistics, 56% of federal inmates, 67% of inmates in state prisons, and 69% of inmates in local jails did not complete high school.

The Alliance for Excellent Education found that increasing the male graduation rate would decrease crime nationwide. Annual incidences of assault, larceny, motor vehicle thefts and burglaries could see significant reductions.

In Pennsylvania, and across the country, the potential savings from an increase in the male high school graduation rate could save literally hundreds of millions of dollars in crime-related costs and produce millions in earnings and tax revenue from individuals who are employed rather than incarcerated.

There is more to the crime and education connection than just coursework and passing grades. The combination of largely unnoticed actions undertaken by individual schools affects education climates for millions of students in thousands of schools across the country. These school climates, in turn, often profoundly affect student performance.

The school-to-prison pipeline is fueled, in part, by “zero-tolerance” policies that accelerate the involvement of the criminal justice system in routine school disciplinary practices. The involvement of law enforcement in traditional matters of school discipline has soared as school districts across the country expanded the use of armed police officers in schools.

The nightly news is flooded with stories like the 7-year-old North Carolina boy with autism, whose mother said he was overwhelmed by the “comings and goings in his classroom,” and began spitting inside his special needs school.

The “school resource officer” arrived on the scene, put the boy in handcuffs, and pinned him to the ground, according to body-cam footage of the September 2018 incident that was recently published by WSOC-TV.

This pattern is all too familiar. Just this week, police pepper sprayed a 9-year-old New York girl during a family disturbance outside of school.

An investment in education is an investment in crime prevention. The potential to save money, generate revenue and minimize the anguish that comes with victimization is too important to ignore.

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MCN: COVID outbreaks in prison, trust the science

Matthew T. Mangino
More Content Now
January 22, 2021

Science has demonstrated that large gatherings of people in close proximity to one another can be a breeding ground for COVID-19. The phenomenon known in coronavirus nomenclature as a “superspreader event,” has the potential to sicken large swaths of people.

A well-documented study from the state of Washington examined a single choir practice consisting of 61 choir members wherein a single infected member caused 32 confirmed infections and 20 additional probable cases.

These hot spots were targeted from the earliest days of the pandemic. Nursing homes, sporting events, religious services, indoor dining have been restricted, locked down or closed. Facilities where people congregate or live - often with little or no mitigation measures such as wearing personal protective equipment or keeping socially distanced have been universally recognized as potentially life-threatening.

Yet with similar or worse conditions in the nation’s jails, prisons and detention centers, criminal justice policy makers continue to warehouse inmates. According to NPR, the 2.3 million people incarcerated in the U.S. are nearly five times as likely to test positive for COVID-19 as Americans generally and nearly three times as likely to die.

There have been outbreaks at more than 850 jails and prisons in the country, putting many prisoners incarcerated in the U.S. at risk of infection. Dr. Ross MacDonald, chief physician of New York’s Rikers Island, told TIME in March simply that, “the right preventive measures don’t exist to stop the spread of this virus in (jail and prison facilities)” - 10 months later prison mitigation measures have not improved.

Prisoners live in crowded unsanitary spaces, sharing bathrooms and dining halls where social distancing is impossible. Many inmates have conditions like asthma, diabetes and heart disease - making them particularly vulnerable to the effects of the virus.

To complicate things, mental health problems are rampant in correctional facilities. This makes mask wearing and social distancing virtually impossible.

No one questions whether health care workers who treat COVID-19 patients should be first in line for vaccines. Other high-priority groups include residents and employees of long-term care facilities, essential workers, the old and infirm.

According to a recent nationwide analysis by PEW’s Stateline, state plans for administering vaccines in prisons found wide variations among the states. According to a recent study by the Prison Policy Initiative, a nonprofit research and advocacy group, at least 38 states addressed incarcerated people in their vaccine plans, but most of those states prioritized prison staff over incarcerated people, and 11 states appeared to have no plans for the incarcerated.

“In terms of public health risks and priorities, I think this is straightforward public health assessment and response,” Dr. Thomas Inglesby, director of Johns Hopkins’ Center for Health Security told NPR. “All the conditions that we think about in terms of trying to control COVID, they’re all moving in the wrong direction in these facilities. They are basically the perfect conditions for superspreading events.”

Should prisoners and other detainees be given priority access to COVID-19 vaccines?

New Jersey has begun vaccinating inmates and staff at the state’s largest correctional facility. Seven states - Connecticut, Delaware, Maryland, Massachusetts, Nebraska, New Mexico and Pennsylvania - have designated inmates “Phase One” recipients for vaccines, according to the Stateline.

Obviously, the question of when inmates will receive the vaccine is a mixed bag. According to NPR, states and agencies that control distribution “face political pressure from a general public that has historically been unsympathetic to the health of incarcerated people.”

If Americans are going to accept the science that vaccines are a smart and effective way to deal with COVID-19, they must be willing to accept the science when it comes to who should get the vaccine and when.
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 at @MatthewTMangino.

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MCN: The administration’s six month reign of death

Matthew T. Mangino
More Content Now
January 15, 2021

Only five states carried out a total of seven executions across the United States last year. That is the fewest state executions in nearly 40 years. However, that is not the full story when it comes to the death penalty in America.

In the second half of 2020, in the midst of a pandemic and a reelection campaign, the Trump Administration decided to get back into the act of executing federal prisoners. After going 17 years without carrying out an execution the federal government carried out 10 executions in less than six months.

By the end of 2020, the federal government had conducted more executions in five months than any other presidency since the turn of the 20th century, and scheduled more executions during a presidential transition period than any other administration in the history of the United States - knowing President-elect Joe Biden campaigned on abolishing the federal death penalty.

Whether it was a ploy to bolster his tough guy bona fides or a lowbrow pitch to his “law and order” constituency, President Donald Trump’s bloodlust saw no boundary.

According to the Death Penalty Information Center, those executed by the federal government included the first Native American ever executed by the federal government for the murder of a member of his own tribe on tribal lands.

This fall saw the first federal execution in 68 years of an offender who was a teenager at the time the crime was committed.

The federal executions of 2020 included the first federal execution in 57 years for a crime committed in a state that had abolished the death penalty, as well as executions carried out against the wishes of the victims’ families and the first lame-duck executions in more than a century.

The executions carried out in the midst of a pandemic contributed to a COVID-19 outbreak in the Federal Correctional Complex in Terre Haute, Indiana. The outbreak infected at least nine members of federal execution teams, several lawyers and at least one religious advisor.

As the president faces an unprecedented second impeachment trial - his machinery of death keeps chugging along. This week, after the president incited his “law and order” supporters to storm the Capitol resulting in the death of five people, including a Capitol Hill police officer, Lisa Montgomery was executed. She was the first woman executed in the federal system in nearly seven decades.

Montgomery committed a very heinous crime. In 2004, she cut an unborn fetus from the womb of her mother. Montgomery had faked a pregnancy. She drove from her home in Kansas to the victim’s home in Missouri. After strangling Bobbi Stinnett, whom she knew from dog breeding, Montgomery cut open her abdomen and kidnapped her fetus. Fetal abduction is rare, but more than 25 cases of violent fetal abductions have occurred in the last two decades.

According to NBC News, Montgomery’s lawyers did not argue that she didn’t deserve to be punished, but rather that the jury never fully learned of her severe mental illnesses as diagnosed by doctors.

Corey Johnson was executed two days after Montgomery. Johnson had an IQ of 69 and had contracted COVID-19.

With only days left in his “reign,” Trump has one more execution planned. A U.S. Circuit Court recently cleared the way for the execution to move forward. The court overturned a stay from a lower court delaying the execution until March to allow Dustin Higgs to recover from COVID-19.

Higgs could dodge the executioner’s needle but-for the wishes of a disgraced president who on his last days in office would rather inflict death than impart mercy.

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 at @MatthewTMangino.

To visit the column CLICK HERE

MCN: Homicide rates soar nationwide

Matthew T. Mangino
More Content Now
January 4, 2021

As Americans have come to accept more than 2,500 deaths a day as a result of COVID-19 - it is no wonder that little attention is being paid to the dramatic increase in homicides nationwide.

From the east coast to the west the numbers are astounding. As December drew to a close, New York City’s 447 homicides made 2020 the city’s bloodiest year in nearly a decade, according to The New York Times.

The Chicago Tribune reported that through the last week of 2020, Chicago had recorded 762 homicides, a 55% jump over the same period in 2019. It is one of the largest annual increases in recent city history.

Across the city of Houston, 400 people were murdered as of Dec. 29. That’s a spike of at least 42% over 2019, according to KTRK-TV 13 the ABC affiliate in Houston.

In Los Angeles, 2020 saw killings rise sharply. As of mid-December homicides had risen by 30.4%, their highest level in a decade. According to the Los Angeles Times, in one week this summer, from June 29 to July 5, 29 people were murdered in Los Angeles County.

There are several suggested reasons for increasing violence in big cities - the mounting tension associated with the pandemic, a tumultuous presidential election and the nationwide protests associated with police treatment of blacks.

However, the increase in homicides is not just a big city problem.

According to the Washington Post, FBI data indicates that small cities with fewer than 10,000 residents saw more than a 30% increase in killings in the first nine months of the year.

The nation as a whole has experienced the largest single one-year increase in homicides since the country started keeping records.

Murder is probably the best indicator of crime. Unlike robbery or aggravated assault, homicide cannot be manipulated or negotiated to look like a different offense. Police can charge an individual with felony assault and then plead the charge down to disorderly conduct or a charge of robbery, a felony, can be reduced to a misdemeanor theft.

Murder is murder - investigators cannot ignore a dead body.

Why is murder on the rise? Some suggest that the confluence of the pandemic and social unrest have left police departments depleted.

Some will argue that as police officers became infected with COVID-19 there were fewer officers on the street. As the public became infected there were fewer witnesses. Some will argue as protests increased more officers were assigned to manage the unrest instead of investigating and fighting crime. Disputes were being settled in the streets.

Have police officers pulled back on their influence with regard to community safety as a result of movements like Black Lives Matter and “Defund the Police?”

The New York Times looked at preliminary reports of violent crime mid-year and found that while murder was soaring, violent crime was generally down. The Times asked, “How often do murder and other types of violent crime move in opposite directions?”

Only four times since 1960. Over the last 30 years the difference nationally between murder and violent crime has been just 2.2%, so a “big increase in murder nationally while violent crime falls is almost unheard of.”

This anomaly points to either underreporting or under-investigating. Another key indicator of police pull back are clearance rates - the number of cases solved by police departments. For instance, in Minneapolis where George Floyd was killed by police, the clearance rate has dropped to about 41% this year - four in ten murders were solved in Minneapolis. New York City’s clearance rate has fallen as has Houston’s, after three years of improvement.

Policymakers will not have a clear picture of the role of policing in the increase in homicides until after the FBI’s Uniform Crime Report and the Department of Justice’s National Crime Victimization Survey are released later this year.

However, the preliminary numbers are a harbinger of difficult times for communities across the country.

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 at @MatthewTMangino.

To visit the column CLICK HERE

MCN: Trump’s pardons reveal extraordinary abuse of power

Matthew T. Mangino
More Content Now
December 24, 2020

The worst fears of the framers of the U.S. Constitution have come to realization 233 years after the document was drafted, debated, revised and submitted for ratification. President Donald Trump, in an attempt to shield himself from potential prosecution, just pardoned Paul Manafort and Roger Stone. He pardoned Michael Flynn on Nov. 25.

Stone was convicted last year of making false statements, obstruction and witness tampering as revealed in the Mueller investigation. The Justice Department initially recommended a 7- to 9-year sentence, but reduced the recommendation after the attorney general intervened.

Manafort was convicted of eight felonies in Virginia in 2018 and entered into a plea agreement in a separate case to 10 charges, including three counts of failing to file reports of foreign bank and financial accounts, and seven counts of bank fraud and bank fraud conspiracy.

Flynn admitted to twice lying under oath. He pleaded guilty in December 2017 to lying to FBI investigators about his communications with Russian ambassador Sergey Kislyak before Trump took office.

The drafters of the Constitution were concerned that a president could use his pardon powers to protect himself or maybe worse, set in motion illegal conduct by subordinates with the promise of a pardon.

Paul Rosenzweig, a prosecutor during the Clinton Whitewater investigation, wrote in The Atlantic that during the Constitutional Convention the president’s pardon power was hotly contested. George Mason from Virginia was strongly opposed to granting the president such an imperial power. Mason worried that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.”

Erick Trickey of Boston University wrote in The Atlantic that special counsel Robert Mueller wrote about the possibility of Trump pardoning Manafort and Flynn.

“Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government,” the report states. “The evidence supports the inference that the President intended Manafort to believe that he could receive a pardon,” Mueller adds, “which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.”

Trickey continued that the Constitution doesn’t allow the president to abuse his pardon power. Mueller’s continued, “Congress has the authority to prohibit the corrupt use of anything of value to influence the testimony of another person which would include the offer or promise of a pardon to induce a person to testify falsely or not to testify at all.”

James Pfiffner, a professor at - ironically - George Mason University, wrote in The Hill that Mueller believed the president dangled pardons over the heads of Manafort and Flynn “intend(ing) to shape their conduct in the future and encourage them to provide false testimony or otherwise obstruct justice.”

Mason is also known for a key addition to the impeachment provision of the Constitution. Trickey wrote in The Smithsonian, that Mason asked his fellow delegates why treason and bribery were the only grounds in the draft Constitution for impeaching the president? Treason, he warned, wouldn’t include “attempts to subvert the Constitution.”

After a heated exchange with fellow Virginian James Madison, Mason came up with another category of impeachable offenses: “other high crimes and misdemeanors.” The very grounds used to impeach Donald Trump.

Trump’s impeachment did not result in his removal from office. A second attempt at impeachment is impossible with less than four weeks remaining in his term. That leaves the only limits on his power, public scorn and his legacy - neither of which Trump seems to care anything about.

Ken Gormley, a Constitutional scholar and President of Duquesne University in Pittsburgh, recently wrote in the Washington Post, “If President Trump makes the ill-advised decision to try to pardon himself ... incoming president Joe Biden should respond with another unprecedented step: He should ‘un-pardon’ his predecessor.”

I would take it one step further - if the pardons of Stone, Manafort and Flynn were provided to obstruct justice, in other words to protect Trump from criminal liability “un-pardon” them as well.

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 at @MatthewTMangino.

To visit the column CLICK HERE

MCN: Asset forfeitures provide a $70 billion windfall for law enforcement

Matthew T. Mangino
More Content Now
December 18, 2020

Two Middle Eastern men were driving through Pennsylvania on their way from Brooklyn to Tennessee. Their vehicle was stopped by the Pennsylvania State Police. According to Spotlight PA, an independent, nonpartisan news service affiliated with The Philadelphia Inquirer, during the traffic stop the state trooper asked if either man was carrying a large sum of cash.

The men said yes, explaining that they had $10,000 because they were worried about their car breaking down and wanted cash for repairs. They told the trooper whatever money was left would be used for one of the men to travel to Egypt.

After getting consent to search the vehicle, the police found nothing. Regardless, the state police took the $10,000. The money was later tested and found to have “high levels of PCP.”

The Pennsylvania Attorney General’s Office concluded the cash was “used to buy or sell drugs through an unknown drug-trafficking ring.” Neither man was charged with a crime or even cited for a traffic violation. However, because the men did not contest the civil forfeiture of the cash, the state kept it.

This form of government-sanctioned theft is not unique to Pennsylvania - although Pennsylvania Governor Tom Wolf has requested the state’s Office of Inspector General conduct a review of whether Pennsylvania State Police troopers are following the law when initiating traffic stops and then searching vehicles.

This week, the Institute for Justice released the third edition of “Policing for Profit: The Abuse of Civil Asset Forfeitures.” With data from 45 states, the District of Columbia and the federal government, the report reveals that civil asset forfeitures are a massive nationwide problem. According to the report, states and the federal government have forfeited at least $68.8 billion, in the last 20 years.

That is probably why, according to a Cato Institute/YouGov Survey, 84% of Americans oppose civil asset forfeitures. Only one in six people think police ought to be allowed to seize property before a person is convicted.

How can the assets of a person not convicted of a crime be forfeited to the government?

Forfeiture cases are brought against the property, meaning prosecutors file suit against items like cash, cars or homes. According to Spotlight PA, the courts then require the owners to prove they have the legal basis to challenge the state and then argue to get their property back. Since the process is handled in civil court, people seeking to get their money back are not entitled to a court-appointed attorney.

In 2019, the U.S Supreme made a ruling that many thought would kick the legs out from under civil asset forfeiture. An Indiana man was convicted of drug trafficking. The police seized his recently purchased Land Rover SUV. He purchased the SUV with the proceeds of his late father’s life insurance.

The vehicle was worth $42,000. His fine was $10,000. The trial judge said the forfeiture was, pursuant to the Eighth Amendment, excessive and disproportionate to the offense. The Supreme Court agreed.

In spite of the Supreme Court’s ruling, civil asset forfeitures continue. There is tremendous incentive for police to grab assets. In most states, police and prosecutors have complete access to those funds for any “law enforcement” purpose they can dream up.

The Institute of Justice report also revealed that forfeitures rarely target big-time criminals. Nearly half of all currency forfeitures are “worth less than $1,300.” The data reflects that the police are not taking the assets of kingpins, but rather small-time offenders who can’t afford to hire an attorney and who simply walk away from their property.

Lisa Knepper, a research director with the Institute of Justice, put it best, “Most laws still stack the deck against property owners and give law enforcement perverse financial incentives to pursue property over justice.”

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 at @MatthewTMangino.

To visit the column CLICK HERE

MCN: Few criminal trials feature the defendant’s testimony

Matthew T. Mangino
More Content Now
December 11, 2020

Why do so few men and women charged with a crime exercise their constitutional right to testify in their own defense?

The answer is complicated.

Let’s start with the fact that in state and federal courts only a small percentage of cases even go to trial. According to the Pew Research Center, in 2018 nearly 80,000 people were prosecuted in federal criminal court - only 2% went to trial.

Choosing to go to trial can be a risk. One concern is the “trial penalty,” a widely lamented tool of prosecutors used to punish people who go to trial more harshly than similarly situated defendants who plea bargain.

In some jurisdictions, including federal court, the gap between sentences has gotten so wide that defense attorneys have coined the phrase “plea bargaining coercion,” to portray clients who plead guilty to avoid the draconian punishment for exercising their right to trial.

Some experts say the process has become so coercive in state and federal courts, that defendants weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence.

Once that seemingly bold, and exceedingly rare, decision to go to trial is made, a whole host of other issues must be considered. The decision to testify is a strategic one. It wasn’t long ago when defense attorneys made the decision about whether their clients would testify. In 1987, the U.S. Supreme Court changed all that, when it decided that the decision to testify was a “personal and fundamental constitutional right.”

The government has the burden of proving a defendant guilty beyond a reasonable doubt - the defendant has no obligation to prove anything.

That is the law, but there are times the jury wants to hear the defendant’s side of the story. There are risks that come with testifying. A defendant’s criminal record, which may otherwise have been kept from the jury, can be used to impeach the defendant’s credibility if he or she takes the witness stand.

Professor Anna Roberts of Seattle University Law School wrote in a 2016 law review article, “A recent study of DNA exonerees revealed that, despite their factual innocence, 91% of those with prior convictions waived their right to testify at trial. The most common reason given by their counsel was the fear of the impact of impeachment.”

According to Roberts the fear was justified “allowing the jury to learn of a defendant’s criminal record increases the rate of conviction by as much as 27%.”

Testifying in front of a robe-draped judge, in an ornate courtroom, in front of 12 strangers who will decide your fate can be daunting. What kind of witness will the defendant make? Is the defendant friendly? Is she articulate? Does she understand the gravity of the situation? Does she have a temper or tendency to fly off the handle?

No matter how well prepared to testify, a defendant will be subject to cross-examination. The process can be grueling and can reveal holes in the defendant’s story that can result in a conviction.

The other option for a defendant at trial is silence. A silent defendant can leave a jury wondering why the defendant didn’t refute the charge - although a defendant has no obligation to present an alternative to the prosecution’s case.

More importantly, the defendant who remains silent loses an opportunity to win over the jury.

In a 2008 study, Daniel Givelber and Amy Farrell found an increase in the percentage of acquittals when the jury heard from the defendant. When a jury heard from both the defendant and other witnesses on the defendant’s behalf, the acquittal rates rose substantially.

To testify, or not to testify, is the question - the answer is ... complicated.

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 at @MatthewTMangino.

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MCN: Sure the president can pardon himself, does it matter?

Matthew T. Mangino
More Content Now
December 4, 2020

President Donald Trump tweeted, “I have the absolute right to PARDON myself.” Can the president grant himself a pardon? Yes. Will it ensure that he does not go to jail? No.

Pursuant to Article II, Section 2 of the United States Constitution, the “Power to grant Reprieves and Pardons for Offenses against the United States” is vested in the president. In the nearly four years that Trump has been in office he has granted 27 pardons and 11 commutations.

Whether Trump can pardon himself is an unresolved legal question. No president has ever tried to pardon himself. As a result no federal court, including the United States Supreme Court, has directly addressed the question.

However, in 1866, the U.S Supreme Court did say, “The Constitution gives him (the president) unlimited power in respect to pardon, save only in cases of impeachment. The Constitution does not say what sort of pardon; but the term being generic necessarily includes every species of pardon, individual as well as general, conditional as well as absolute.”

Supporters of the idea that the president can pardon himself emphasize the lack of constitutional language limiting the president’s authority. Robert Nida and Rebecca L. Spiro wrote in the Oklahoma Law Review following President Bill Clinton’s impeachment, “A textual interpretation of the Pardon Clause provides the strongest argument that a self-pardon is not prohibited by the Constitution.”

Some legal experts have said a self-pardon would be unconstitutional because it violates the basic principle that nobody should be the judge in his or her own case. Consider a trial judge being accused of a crime and then presiding over her own trial. As ridiculous as that sounds, it may be fundamentally more fair than a president pardoning himself. At least, the state has a chance of convicting the judge/defendant by convincing a jury of her guilt.

In August 1974, four days before President Richard Nixon resigned, Mary C. Lawton, then the acting head of the Justice Department’s Office of Legal Counsel, issued a legal opinion stating that “it would seem” that he (Nixon) could not pardon himself “under the fundamental rule that no one may be a judge in his own case.”

Laurence Tribe, a Harvard Law School professor, Richard Painter, a White House lawyer under President George W. Bush and Norman Eisen, a White House lawyer under President Barack Obama all agreed with Attorney Lawton.

The three of them wrote in the Washington Post in 2017, “The Constitution specifically bars the president from using the pardon power to prevent his own impeachment or removal.” They continued, “It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision makes no sense if the president could pardon himself.”

If Trump grants himself a pardon, he may still be in jeopardy of criminal prosecution. Initially a self-pardon, if proper, will only insulate him from federal prosecution. Trump faces two New York state inquiries into whether he misled tax authorities, banks or business partners. Trump cannot shield himself from state prosecution.

He could also face federal criminal prosecution. The self-pardon is untested. The only way to test it is to arrest Trump, if there is a basis to do so, after he leaves office. Trump can raise his self-pardon as a defense to the prosecution. That challenge will come pretrial, after his indictment, initial appearance, perp-walk, mug-shot, fingerprinting and arraignment.

If the charges against the president are dismissed look for an appeal by the Department of Justice. If the charges are not dismissed a very public trial takes place and then, most assuredly, and appeal if Trump is convicted.

A self-pardon by President Trump will be a winding, time-consuming and expensive process that may ultimately make new law.

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 at @MatthewTMangino

To visit the Column CLICK HERE

 

MCN: Punditry and lawyering are two very different things

Matthew T. Mangino
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November 27, 2020

President Donald Trump's campaign lawyers Rudy Giuliani and Sidney Powell have repeatedly made baseless claims of widespread voter fraud and, through a flurry of lawsuits challenging the results, may have run afoul of rules barring lawyers from making dishonest statements.

New York Congressman Bill Pascrell Jr. has filed complaints against Giuliani and 22 other lawyers in Arizona, Michigan, Nevada, Pennsylvania and New York alleging the lawyers engaged in “conduct involving dishonesty, fraud, deceit, or misrepresentation.”

He called the campaign legal team’s effort to overturn election results with frivolous lawsuits “misconduct and an affront to the rule of law.”

Giuliani, a former federal prosecutor and Mayor of New York City, made unsubstantiated claims in press conferences and media appearances about electoral fraud. If Giuliani would have restricted his conduct to news conferences and television interviews he might have avoided the scrutiny of judges and state bar authorities.

However, on the eve of an argument in front of a Pennsylvania federal judge, after three Trump lawyers withdrew from the case, Giuliani inserted himself as lead counsel. In Donald J. Trump for President, Inc. v. Boockvar, Giuliani asked the court to discard about 700,000 mail-in ballots.

Giuliani’s argument was devoid of any rational basis for success. His rambling presentation was lampooned by the legal community and met with derision by the judge. The claims were dismissed with a scathing judicial opinion.

Lawyers are not supposed to bring lawsuits that are frivolous, have no legal merit or are downright dishonest. All 50 states and the District of Columbia have legal ethics rules for lawyers that are derived from standards promulgated by the American Bar Association.

In Pennsylvania, the state follows the American Bar Association Model Rules of Professional Conduct. Pennsylvania Rule of Professional Responsibility 3.3 provides a lawyer is prohibited from making “a false statement of fact or law to a tribunal.”

Typically, a complaint is filed with the Disciplinary Board and an investigation ensues. If the state board believes there has been a potential breach of ethical conduct, a formal complaint is filed and hearing scheduled. An ethical violation can result in professional discipline - a reprimand, a temporary license suspension or disbarment.

On a federal level, judges can punish lawyers who fail to meet the ethical standards of candor or legitimate purpose. Federal Rules were established to deter lawyers from pursuing false, misleading or dilatory actions and authorize judges to punish such conduct.

Federal Rule 11 provides that a lawyer must assert that litigation “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

In Michigan another Trump campaign lawyer has been accused of crossing ethical lines.

Republican officials in Michigan initially refused to certify the election results, but quickly reversed themselves.

Mark “Thor” Hearne, a Trump campaign lawyer submitted a filing with the court claiming that Wayne County, Michigan officials “declined to certify the results of the presidential election.”

That statement was not true, and according to Reuters, Hearne acknowledged the same. Attorneys for the city of Detroit asked a judge to reprimand Trump’s campaign for spreading “disinformation” and to strike the document in question from the record as a sanction.

The Trump campaign has filed at least 36 lawsuits across the country relating to ballot tabulation. Now, some of Trump’s targets are fighting back. The NAACP Legal Defense and Educational Fund, Inc., a non-partisan civil and human rights organization, filed a lawsuit challenging the Trump campaign’s ongoing efforts to overturn the results of the presidential election by disenfranchising Black voters in Michigan.

According to the NAACP Education Fund website, the lawsuit claims that both the president and his campaign are in violation of the Voting Rights Act of 1965, by exerting pressure on state and local officials not to count or certify votes.

Joe Biden is the President-elect. Disinformation and meritless lawsuits, no matter how prodigiously filed and vigorously pursued, will not prevent Biden from being president on Jan. 20, 2021. That fact should not insulate those who flouted the rule of law from being held accountable.

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 at @MatthewTMangino.

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Now is the time for probation and parole reform

Matthew T. Mangino
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November 20, 2020

The United States has less than 5% of the world’s population but 20% of the world’s incarcerated people. That is an alarming statistic but the problem in this country is about more than incarceration.

According to EXiT (Executive Transforming Probation and Parole) - a group of former community supervision executives - 4.4 million people are under some form of probation or parole supervision, more than twice as many people as are incarcerated. In the last 40 years, the number of people under community supervision has increased three-fold.

Recently, EXiT and a bipartisan group of over 50 current and former District Attorneys and state Attorneys General issued a statement challenging the efficacy of parole and probation.

Community supervision was created more than a century ago to manage offenders as an alternative to prison or as a supplement to help inmates transition back into the community.

According to The Crime Report, community supervision has now become “overly burdensome, punitive and a driver of mass incarceration, especially for people of color.” For example, while one in 58 adults in America are under probation and parole supervision, that proportion jumps significantly for blacks to one in 23.

“Far from being an aid to community reintegration as originally designed, community supervision too often serves as a tripwire to imprisonment,” the according to the DAs and parole executives who signed-off on the joint statement.

The American people are growing weary of probation and parole. According to recent polling by The Justice Collaborative Institute and Data for Progress, “voters want fewer people in jails and prisons, and fewer people subject to surveillance and control by law enforcement. Instead, they want probation and parole, to the extent they are used at all, to serve as true alternatives to incarceration, not additional means of law enforcement control that makes incarceration more likely.”

Rather than supporting people, today’s probation and parole programs set people up to fail and perpetuate cycles of incarceration. For instance, about 16% of New York City’s jail population is composed of people who were there on state parole violations, according to a report by Columbia University Justice Lab, and published by The Appeal.

A report from the Prison Policy Initiative found that as New York had reduced the number of people detained pretrial by double digits over the last four years, “only one population in the jail has increased, also by double digits: persons held in city jails for state parole violations.”

There are increasing burdens for people being supervised through probation and parole. They are often saddled with onerous supervision fees; required to make regular in-person appointments with a probation or parole officer; abstain from alcohol or drug use; and comply with curfews and strict travel restrictions.

Failure to comply with non-criminal conditions of supervision often leads to arrest and time in jail.

According to the joint statement, community supervision creates “a vicious cycle of reincarceration for people under supervision for administrative rule violations that would rarely lead someone not under supervision into prison.”

The residual effects of strict parole enforcement are enormous. About 45 % of people entering prison nationwide were on probation or parole when they were convicted. One in four people entering prison ended up there for failing to comply with supervision rules costing taxpayers $2.8 billion annually.

The prosecutors and parole executives who joined in the statement demanding reform are calling for common sense initiatives including shortening supervision terms, reinvesting the savings in reentry support and rethinking the collateral consequences of crime like housing exclusions, disenfranchisement and ineligibility for government assistance.

Recalibrating probation and parole can reduce incarceration, save money and, most importantly, help former inmates succeed on the streets.

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 at @MatthewTMangino.

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