The Cautionary Instruction: Legislation seeks to make jury duty more manageable

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
April 13, 2012

Jury duty can be a burden, but then so can going to work, paying taxes and taking out the garbage. The burden of jury duty goes beyond the inconvenience. Sitting in judgment of a fellow citizen is not something that most people relish.

Maybe that is why, nationally, about 46 percent of people summoned for jury duty actually show up, according to a 2007 survey conducted by the National Center for State Courts.
The “no shows” are excused or disqualified for a variety of reasons, including medical or financial hardship, employment in a job exempt from jury service, dire family circumstances or inaccurate notice -- and, yes, some people just blow-off jury duty.

As a result of the declining numbers, Pennsylvania enacted legislation enabling counties to expand the lists from which they draw potential jurors. Current law permits counties to use state income tax and welfare lists in addition to the voter registration and driver license lists that traditionally have been used to summon jurors.

How can the commonwealth make jury duty more palatable? How about reconsidering pay for jurors. Under current law, jurors are paid $9 a day for the first three days of service and $25 a day for each day thereafter.

State Representative Robert F. Matzie (D-Allegheny/Beaver) said the current payment scheme creates a hardship for many residents who are summoned to jury duty.

In theory more people would do their civic duty if it did not mean money out of their pocket.

Matzie’s bill would require employers to pay a juror's ordinary wage or salary each day that the employee is required to report for service and also require the commonwealth to grant a tax credit to the employer for the amount expended.

"It is important that Pennsylvania law supports citizens in the performance of their civic duty to serve on a jury if summoned," Matzie said in a press release. The bill also addresses related expenses like parking and travel costs.

Matzie’s jury reform effort does not stop at compensation. He has also introduced legislation to exempt the following individuals from jury duty:

        • Parents or guardians who have custody of a child younger than seven and who are the caregivers.

• Parents or guardians who have custody of a school-age child who has been excused from compulsory attendance at school or special education program and provide instruction for the child.

• Primary caregivers of an elderly or disabled family member.

Some other states have addressed juror compensation. For instance, Texas increased its juror compensation from $6 per day to $6 for the first day and $40 per day thereafter. The Texas compensation is paid exclusively by the state. The Pennsylvania measure is asking private employers to flip the tab in exchange for a tax credit. That may be a more difficult sell.

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Trial selection is on trial

Matthew T. Mangino
Youngstown Vindicator
January 8, 2012


The Sixth Amendment to the U.S. Constitution guarantees, to every person accused of a crime, the right to a trial by jury. That right is also ingrained in Article I of the Ohio Constitution. In fact, Ohio is one of only 21 states that continue to leave the request for a jury trial exclusively in the hands of the defendant. However, not every defendant wants to face a jury.

There are a number of tactical reasons that would require a defendant to request a trial in front of a judge as opposed to a jury. A defendant raising technical legal claims may prefer a learned judge over a group of laymen unfamiliar with the nuances of the law.

A defendant with a lengthy criminal record may prefer a judge who has seen many defendants with checkered pasts as opposed to jurors new to the realities of the criminal justice system.

Unfair bias

At times, a crime is so heinous that a jury may be repulsed by the facts. A defendant may choose to take her chances with a judge and avoid the unfair bias that comes with the appalling circumstances of some crimes.
Finally, some defense attorneys judge shop. If the case is assigned to a judge who has been known to be lenient in certain circumstances, the defense will seek a trial in front of that judge without a jury.

Therein lays the concern, for some, with Ohio’s law. While the law is clear that a defendant is entitled to a trial by jury, there is no corresponding “right” for a defendant to demand a trial in front of a judge. Nearly a half century ago, the U.S. Supreme Court held that there is no constitutional right to a criminal trial in front of a judge. Yet that is precisely what happens in Ohio. The prosecution has no options once a defendant waives a trial by jury. That may soon change.

The Legislature is considering H.B. 265. The bill seeks to condition the defendant’s ability to waive a jury trial on the consent of the prosecutor and court. Essentially the bill would empower prosecutors to demand a jury trial, thus giving them veto power over a defendant’s attempt to waive the right.

Although the District of Columbia, the federal government and most states have similar laws that limit a defendant’s exclusive right to select the form of trial, this bill is not without its detractors.

Some suggest that H.B. 265 would supersede the authority of the Supreme Court Commission on the Rules of Practice and Procedure. A Judicial Impact Statement prepared by the Ohio Judicial Conference suggested, “Although the General Assembly may desire to express its will that prosecutors also be able to demand a trial by jury, the General Assembly does not have the authority to establish court procedures in conflict with an existing Ohio Rule of Criminal Procedure.”

The Supreme Court Commission overwhelmingly refused to provide prosecutors the right to demand a jury trial over the objection of defendants, finding that to do so would be “patently unfair to defendants.” The position of the Judicial Conference is that the H.B. 265 cannot be implemented because the Ohio Constitution expressly granted the authority to oversee the courts to the Ohio Supreme Court.

Ballot-box issue

There may be another way to get this done. In 1998 Pennsylvania voters approved a constitutional amendment. The question presented to the voters was simple: “Shall the Pennsylvania Constitution be amended to provide that the Commonwealth shall have the same right to a trial by jury in criminal case as does the accused?”

A constitutional amendment may be the only way to provide Ohio prosecutors with the same authority.

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The Cautionary Instruction: Legislators race to capital to prevent PSU repeat

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 18, 2011

The Penn State sex scandal and cover-up has generated a bevy of activity at the state capital. As with other high profile criminal prosecutions legislators look to law making as a way to prevent future victimization.
Last Sunday, Governor Tom Corbett appeared on NBC's Meet the Press. Governor Corbett replied, “Absolutely,” when asked whether Pennsylvania’s Mandated Reporter Law should be changed. He added, “I wouldn’t be surprised to see a bill passed between now and the end of this year.”
However, with a flurry of bills being proposed in the state House and Senate, Governor Corbett cautioned lawmakers to move deliberately as they consider legislative fixes to the Penn State scandal. Everybody wants "to do something," Corbett said. "We should do something. But we need to do it in a very thoughtful, deliberative process."
Below is by no means an exhaustive list of pending or proposed legislation but it provides a glimpse into the bi-partisan reaction of state legislators to the scandal at Penn State.
State Sen. Kim Ward (R., Westmoreland) has authored a bill that would make it mandatory for anyone employed by a college or university to report child abuse. The bill also would require that any allegations go directly to the head of the institution and to the state Department of Public Welfare.
Rep. Kevin Boyle (D., Phila.) introduced a bill that would mandate all child abuse allegations be reported directly to the police.
A bill proposed by Rep. Mike Vereb (R., Montgomery) would create an offense of sexual assault by a sports official -- including coaches, referees, and employees of nonprofits that engage in sports activities.
State Sen. Wayne Fontana, (D., Pittsburgh), said he would ask Senate leaders to move a bill he first introduced in 2005 that would amend state law to require any professional who works with children to report suspected child abuse to police.
Rep. Louise Bishop (D., Phila.) and Rep. Todd Stephens (R., Montgomery), are proposing legislation that would make it mandatory to promptly report suspected sex crimes against minors.
State Rep. Dan Deasy, (D., Westwood), has proposed a bill that would require an individual who witnesses or an individual who is told by a direct witness about a sexual crime against a child to report it to law enforcement. Failure to report could result in a third-degree felony charge, which carries a sentence of up to seven years in prison.
State Sen. Larry Farnese, (D., Phila.), recently proposed a bill that would bar pension payments to state and city employees convicted of sex crimes against children.
Reactionary legislation has, at times, done more harm than good. The General Assembly would do well to heed Governor Corbett’s admonishment. Proceed with caution. Do not rush legislation and give due deference to the experts who regularly deal with child sex abuse. Let something positive come from this enormous human tragedy.

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The Cautionary Instruction: Prison reform promotes lcoal control

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 28, 2011

On September 28, 2008, then-Governor Edward G. Rendell signed into law a series of prison reform measures, known in part as Act 81. The reforms were intended to reduce costs, ease county jail overcrowding, improve treatment services and among other things provide for the compassionate release of terminally ill inmates. Not all of the reforms have met with success.
A provision of Act 81, Place of Confinement -- 42 Pa.C.S.A. 9762, is scheduled to take effect on November 24, 2011. The new law provides that sentences with maximums between two and five years must be served in a state prison. However, under specific circumstances a judge can order the sentence to be served in a county jail. That is not entirely new. What is new is that the sentencing judge will retain jurisdiction for purposes of parole, not the Pennsylvania Board of Probation and Parole.
Act 81 provides that offenders sentenced to a term of two years or more, but less than five years may be confined in a county jail if: (1) the county prison warden certifies that the county jail is at less than 110% of capacity; (2) the district attorney has consented to the confinement; and (3) the sentencing court has approved the placement in the county jail.
According to data compiled by the Pennsylvania Commission on Sentencing, in 2009 7,860 sentences included a maximum term of two years or greater but less than five years; of these, 6,080 were committed to a state correctional facility, and 1,205 were committed to county jails. The remaining 575 sentences were state intermediate punishment.
What are the implications for offenders? Initially, an offender who has local ties to the community will be more accessible for purposes of visitation while in a county jail. That is not always the case in the state correctional system. With 28 correctional facilities across the commonwealth some state inmates find themselves far away from family and friends.
An offender serving a sentence in the county jail may also have available the privilege of work release. An offender with a family to support could continue to work while serving her sentence. This often eases a significant burden placed on the non-incarcerated parent.
Administratively the most significant change brought about by the new law is that judges will now make parole decisions, not the Parole Board; and local county probation offices will supervise those offenders after parole instead of the Parole Board.
Criminal defense practitioners should be eager to explore the benefits of Act 81. The trick may be getting a feel for the administrative aspects of the new law. A provision of the reform package provided that the Sentencing Commission would establish parole guidelines for the Parole Board and for judges who invariably will be making more parole decisions. Those guidelines have not yet been established, although the Parole Board has been utilizing internal parole guidelines since 1980.

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It's Time for Pennsylvania to Get Moving Against Wrongful Convictions

Matthew T. Mangino
The Pennsylvania Law Weekly
August 23, 2011

In November 2006, Sen. Stewart J. Greenleaf, R-Montgomery, chairman of the Senate Judiciary Committee, sponsored a resolution passed by the Pennsylvania Senate that created an Advisory Committee on Wrongful Conviction. Senate Resolution 381 directed that the joint state government committee, which is responsible for performing research for both houses and both parties of the General Assembly, establish the advisory committee.

The Senate resolution provided that the advisory committee on wrongful conviction shall, "Study the underlying causes of wrongful convictions so that the advisory committee may develop a consensus on recommendations intended to reduce the possibility that in the future innocent persons will be wrongfully convicted."

The resolution further directed the committee to, "review cases in which an innocent person was wrongfully convicted and subsequently exonerated, review any other relevant materials, identify the most common causes of wrongful convictions." Finally the committee must "consider potential implementation plans, cost implications, including possible savings, and the impact on the criminal justice system for each potential solution."

Nearly five years have passed without the committee issuing a report. Greenleaf's office has said it will be released next month. Meanwhile, several other states have been leading the charge in implementing means of evaluating possible wrongful convictions.

North Carolina is leading the way in government sponsored post-conviction review of innocence claims. In 2006, North Carolina established the Innocence Inquiry Commission, a state agency that investigates and evaluates post-conviction claims of factual innocence. The commission is made up of eight members selected by the chief justice of the North Carolina Supreme Court and the chief judge of the North Carolina Court of Appeals. The members include a Superior Court judge, a prosecuting attorney, a defense attorney, a victim advocate, a member of the public and two discretionary members.

The North Carolina commission has received 850 claims, conducted three hearings and issued one exoneration order.

Until recently, innocence claims were pursued by privately funded organizations.

According to USA Today , in Texas, state leaders are awaiting a commission study on the effects of innocence-related laws on eyewitness identification, the videotaping of interrogations and post-conviction DNA testing. In Florida, a commission created to examine the causes of wrongful convictions delivered a report to the state Supreme Court calling for police to follow state-issued guidelines on photo and live suspect lineups. USA Today , citing the Innocence Project, reported that five states in addition to Pennsylvania — California, Connecticut, Illinois, New York and Wisconsin — have established commissions to study the causes of wrongful convictions and make recommendations to lawmakers, police and the courts.

The state's advisory committee on wrongful conviction consists of judges, prosecutors, defense lawyers, law enforcement officers and victims' advocates. The project is chaired by John T. Rago, a Duquesne University law professor and director of the Cyril H. Wecht Institute of Forensic Science and Law, who, according to the Pittsburgh Post-Gazette , proposed the study to Greenleaf.

The advisory committee has yet to issue its findings. Originally it was reported that a final advisory committee report would be issued in late 2008. In June of 2009, the Pittsburgh Tribune-Review reported that, "The Senate-commissioned Committee on Wrongful Convictions is due to release a report by summer's end that could recommend changes in state law."

Summer came and went in 2009 without a report. At least one of the advisory committee's four subcommittees provided some public feedback. The science subcommittee made four recommendations. First, the science subcommittee called for a regulation mandating the preservation of biological evidence, as well as the creation of a forensic advisory board and implementation guidelines for lab accreditation and training.

In July 2010, the Innocence Project posted on its website: "With the upcoming release of a final report from Pennsylvania's Advisory Committee on Wrongful Convictions, the Pennsylvania Innocence Project is hopeful that Pennsylvania will join the growing number of states that require law enforcement officials to videotape all confessions from start to finish."

Obviously, the "upcoming release" of the report has not happened. However, videotaping confessions is indeed an issue that the advisory committee is considering. While a number of law enforcement agencies across the country have adopted some form of videotaping, Pennsylvania has not mandated videotaping of confessions by law enforcement agencies.

The purpose of videotaping is to ensure that confessions are free and voluntary and that the accused is not laboring under some defect that would render her confession involuntary. The subcommittee charged with evaluating this issue has sought public comment and the committee members are apparently hung up on when the videotaping should begin. Some members suggest that the videotape should not start rolling until the accused has been provided her Miranda rights, while others believe that the videotape should roll as soon as the interview begins.

Judging by the work in other states, the advisory committee should also address the use of informants and eyewitness misidentification. Professor Alexandra Natapoff recently wrote for Reason Magazine that a 2004 study by researchers at Northwestern University Law School found that "more than 45 percent of wrongful convictions in death penalty cases were due to false informant testimony; making snitches 'the leading cause of wrongful convictions in U.S. capital cases.'"

According to the Innocence Project, eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of all wrongful convictions.

Greenleaf's office said that the report is now scheduled for release on Sept. 16 to correspond with the fall legislative session. Only time will tell, as more than four years have passed since the advisory committee on wrongful convictions was established. At the time there were 198 DNA exonerations nationwide and nine in Pennsylvania. Today, according to the Innocence Project there are 273 DNA exonerations nationwide and 11 in Pennsylvania.

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