The Pittsburgh Post-Gazette/Ipso Facto
March 30, 2012
Plea bargaining is an integral part of the criminal justice system. Last week,
Justice Antonin Scalia said, with apparent surprise, that plea bargaining “is no
longer a somewhat embarrassing adjunct to our criminal justice system.”
Justice Scalia should not be surprised, 97 percent of federal cases and 94
percent of state cases end in plea bargains. The reality is that criminal
justice today is "a system of pleas," wrote Justice Anthony M. Kennedy. In two
U.S. Supreme Court decisions last week, the court ruled that the Constitutional
guarantee of adequate assistance of counsel cannot exclude the "central role
plea bargaining plays." For the most part, plea bargaining determines "who goes
to jail and for how long. It is not some adjunct to the criminal justice system. It is the
criminal justice system.”
The plea bargain, however unpopular or unseemly, plays a central role in the
administration of justice.
Setting aside the fact that trying every criminal case is impossible, there
are other compelling reasons to plea bargain. Prosecutors are intimately
familiar with the strengths and weaknesses of every case. There are situations
where a plea to a lesser offense is better than a not guilty verdict. A
reluctant witness or a poor witness will influence plea negotiations.
Witnesses often have to deal with their own demons, such as criminal records
and substance abuse—such witnesses do not impress juries. In those cases, a plea bargain may not be palatable, but is better
than the alternative.
Last week, in Lafler v.Cooper, the
court ruled that an attorney's advice to reject a favorable plea bargain based
on an incorrect understanding of the law was ineffective assistance of
counsel. In Missouri v. Frye, the court found that counsel's failure to
disclose the terms of a favorable plea offer is a
violation of the Sixth Amendment right to a fair trial.
Justice Kennedy wrote in Frye, “In today’s criminal justice system the
negotiation of a plea bargain, rather than the unfolding of a trial, is almost
always the critical point for a defendant.”
What will a defendant claiming ineffective assistance of counsel during plea
negotiations have to prove? The court has established a three prong analysis. First, a
defendant must prove he would have accepted the plea bargain if not for bad
legal advice; that there was a reasonable probability that prosecutors would not
have withdrawn the offer before trial; and a judge would have accepted the
plea.
Justice Scalia calls it “crystal-ball gazing posing as legal analysis.”
Stephanos Bibas, a law professor at the University of Pennsylvania, told the
New York Times the decisions were a great step forward. But he acknowledged that
it may give rise to gamesmanship. “It is going to be tricky,” he said, “and there are going to be a lot of defendants who say after
they’re convicted that they really would have taken the plea.”
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Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Saturday, March 31, 2012
Sunday, February 12, 2012
No tweets, no blogs, no posts, oh my
Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
February 10, 2012
This week the Pittsburgh Post-Gazette suggested that readers take action to protect their rights to real-time updates from Pennsylvania’s courtrooms.
The Pennsylvania Supreme Court’s Criminal Procedure Rules Committee has proposed prohibiting the use of electronic communication devices in courtrooms. Specifically, the proposed rule would prohibit “transmission by cellular phone, personal communications device, computer, or any other electronic device that has communications capabilities or internet connectivity.”
Pennsylvania has trailed far behind other states in terms of making courtrooms accessible to a wider audience. Although, the Supreme Court let cameras in for some of their arguments, Pennsylvania remains one of only nine states with an outright ban on recording criminal proceedings.
Chief Justice Ronald D. Castille has made it clear that the commonwealth does not intend to make a dramatic shift in terms of opening Pennsylvania’s courtrooms. The Chief Justice recently acknowledged that opening the Supreme Court to cameras would, in turn, raise the question of whether trial courts should also be opened.
While the Supreme Court has the power to change the rules that bar recording, broadcasting and photography, Castille told the Allentown Moring Call the court has little interest in taking that step. "It's probably not going to be in the near future," he said.
The federal government bans cameras in the courtroom. Rule 53 of the Federal Rules of Criminal Procedure bars the taking of photographs in the courtroom or the broadcasting of criminal proceedings. The national policy-making body for the federal courts, the Judicial Conference of the United States, provides that courtroom proceedings may not be broadcast, televised, recorded, or photographed for the purpose of public dissemination.
Judge Mark Bennet of the United States District Court for the Northern District of Iowa recently permitted real-time electronic communication from his courtroom during a trial. He told the ABA Journal, "I thought the public's right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant. . . . I allowed it because of my belief that we are the most mysterious branch of federal government and we need to find ways to be more transparent."
In New York, where cameras are also barred from the courtroom, a state court judge recently allowed a local newspaper to post live Twitter updates from inside the courtroom during a murder trial. Court administrator David Bookstaver noted that judges are often more distracted by reporters “coming and going” as they leave the courtroom to make phone calls, permitting the use of portable electronic devices keep reporters in their seats.
A ban on electronic communications is appropriate for jurors. In Pennsylvania, jury instructions have long admonished jurors to refrain from getting information from any outside sources including the internet.
Preventing the media from reporting on trials in real-time, essentially imposing a judicial “broadcast delay,” is an unnecessary suppression of public access.
Visit Matt Mangino
The Pittsburgh Post-Gazette/Ipso Facto
February 10, 2012
This week the Pittsburgh Post-Gazette suggested that readers take action to protect their rights to real-time updates from Pennsylvania’s courtrooms.
The Pennsylvania Supreme Court’s Criminal Procedure Rules Committee has proposed prohibiting the use of electronic communication devices in courtrooms. Specifically, the proposed rule would prohibit “transmission by cellular phone, personal communications device, computer, or any other electronic device that has communications capabilities or internet connectivity.”
Pennsylvania has trailed far behind other states in terms of making courtrooms accessible to a wider audience. Although, the Supreme Court let cameras in for some of their arguments, Pennsylvania remains one of only nine states with an outright ban on recording criminal proceedings.
Chief Justice Ronald D. Castille has made it clear that the commonwealth does not intend to make a dramatic shift in terms of opening Pennsylvania’s courtrooms. The Chief Justice recently acknowledged that opening the Supreme Court to cameras would, in turn, raise the question of whether trial courts should also be opened.
While the Supreme Court has the power to change the rules that bar recording, broadcasting and photography, Castille told the Allentown Moring Call the court has little interest in taking that step. "It's probably not going to be in the near future," he said.
The federal government bans cameras in the courtroom. Rule 53 of the Federal Rules of Criminal Procedure bars the taking of photographs in the courtroom or the broadcasting of criminal proceedings. The national policy-making body for the federal courts, the Judicial Conference of the United States, provides that courtroom proceedings may not be broadcast, televised, recorded, or photographed for the purpose of public dissemination.
Judge Mark Bennet of the United States District Court for the Northern District of Iowa recently permitted real-time electronic communication from his courtroom during a trial. He told the ABA Journal, "I thought the public's right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant. . . . I allowed it because of my belief that we are the most mysterious branch of federal government and we need to find ways to be more transparent."
In New York, where cameras are also barred from the courtroom, a state court judge recently allowed a local newspaper to post live Twitter updates from inside the courtroom during a murder trial. Court administrator David Bookstaver noted that judges are often more distracted by reporters “coming and going” as they leave the courtroom to make phone calls, permitting the use of portable electronic devices keep reporters in their seats.
A ban on electronic communications is appropriate for jurors. In Pennsylvania, jury instructions have long admonished jurors to refrain from getting information from any outside sources including the internet.
Preventing the media from reporting on trials in real-time, essentially imposing a judicial “broadcast delay,” is an unnecessary suppression of public access.
Visit Matt Mangino
Sunday, January 8, 2012
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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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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Monday, December 12, 2011
California Shifts Prisoners from State Prison to County Jails
In California the early release of inmates has become the means by which the state is complying with a U.S. Supreme Court order to lower its prison population. As the state empties its prisons county jails struggle to accommodate state prisoners flowing into their facilities.
A U.S. Supreme Court decision requires California to lower its prison population by 30,000. To meet the mandate, those convicted of certain crimes who until now served their sentences in state prison now must serve their time in a county jail. No inmates are being moved from state prisons to county jails. But as these people are sentenced, they will be sent to a county jail rather than state prison, according to the Los Angeles Times.
The L.A. County Sheriff is hoping to deal with the influx of state prisoners by developing alternatives to custody — such as electronic monitoring — for low-risk offenders awaiting trial. The Sheriff’s Department oversees the county jail. According to the Times, L.A. County's jails are expected to house as many as 8,000 state prisoners by mid-2012. Los Angeles County prosecutors said in a report that the numbers could fill up the jails as early as this month.
Some counties, including Los Angeles, are under court order to prevent jail overcrowding. So officials said that some inmates will be released to make way for the state prisoners. Some counties — including Los Angeles, Orange and San Bernardino — have also reported receiving significantly more state prisoners from courts than the state projected, reported the Times.
State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases. By doing that, the attorneys were assured that their clients would get jail time instead of prison time.
The L.A. County Sheriff is hoping to deal with the influx of state prisoners by developing alternatives to custody — such as electronic monitoring — for low-risk offenders awaiting trial. The Sheriff’s Department oversees the county jail. According to the Times, L.A. County's jails are expected to house as many as 8,000 state prisoners by mid-2012. Los Angeles County prosecutors said in a report that the numbers could fill up the jails as early as this month.
Some counties, including Los Angeles, are under court order to prevent jail overcrowding. So officials said that some inmates will be released to make way for the state prisoners. Some counties — including Los Angeles, Orange and San Bernardino — have also reported receiving significantly more state prisoners from courts than the state projected, reported the Times.
State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases. By doing that, the attorneys were assured that their clients would get jail time instead of prison time.
Sunday, October 23, 2011
U.S. Supreme Court Takes Another Look at Plea Bargains
Matthew T. Mangino
Pennsylvania Law Weekly
October 18, 2011
In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.
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Pennsylvania Law Weekly
October 18, 2011
In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.
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The Cautionary Instruction: U.S. Supreme Court hears arguments in case with local twist
Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 21, 2011
Last week, the U.S. Supreme Court listened to arguments in the case of Florence v. Board of Freeholders. Albert Florence was picked up in New Jersey on a warrant for an unpaid fine and lodged in two different county jails where, in each, he was strip-searched as part of routine jail policy.
After it was determined that the warrant had been issued in error, Florence was released. He filed suit claiming his Fourth Amendment right against unreasonable searches was violated. A federal district court judge sided with Florence, but the Third Circuit Court of Appeals reversed, saying routine strip-searches during intake are justified based on the prison’s concern that weapons and other contraband might be smuggled into the prison.
There is a local parallel to this case. In 2006, Allegheny County was sued for blanket strip-searches of all detainees that were “intermingled” with other county jail inmates. According to depositions taken during the suit, the searches largely included a visual examination of the genitals, as well as requesting detainees to bend at the waist and manipulate the buttocks, breasts and genitals to allow for a visual inspection of their body cavities and skin folds. Female detainees were required to “squat and cough” to see if any contraband dislodged from the vagina.
The class action law suit was settled for $3 million. However, Judge Terrence F. McVerry made reference, in his Settlement Opinion, to the lower court decision in Florence v. Board of Freeholders. Judge McVerry wrote that the Third Circuit in Florence held that conducting strip-searches did not require a showing of attempted smuggling or discovered contraband as a justification for the policy.
Allegheny County settled six days before Florence was decided. Florence ultimately made its way to the U.S. Supreme Court and was the subject of last week’s argument.
Assistant Solicitor General Nicole Saharsky argued last week before the Supreme Court that corrections officials should be able to set search policies for their jails. "You cannot say that there are some minor offenders that don't pose a contraband risk.” Saharsky added that guards who screen arrestees are, “Individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly."
Florence’s attorney, Thomas C. Goldstein, argued that such a “significant intrusion on individual privacy and individual dignity” requires a reason to believe that the arrested person poses a danger.
During the 12 months ending June 30, 2010, local jails admitted an estimated 12.9 million prisoners. While not every jail has a blanket strip-search policy -- the High Court would do well to debunk the near universally accepted idea that the U.S Constitution is of limited application behind the jail house walls.
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The Pittsburgh Post-Gazette/Ipso Facto
October 21, 2011
Last week, the U.S. Supreme Court listened to arguments in the case of Florence v. Board of Freeholders. Albert Florence was picked up in New Jersey on a warrant for an unpaid fine and lodged in two different county jails where, in each, he was strip-searched as part of routine jail policy.
After it was determined that the warrant had been issued in error, Florence was released. He filed suit claiming his Fourth Amendment right against unreasonable searches was violated. A federal district court judge sided with Florence, but the Third Circuit Court of Appeals reversed, saying routine strip-searches during intake are justified based on the prison’s concern that weapons and other contraband might be smuggled into the prison.
There is a local parallel to this case. In 2006, Allegheny County was sued for blanket strip-searches of all detainees that were “intermingled” with other county jail inmates. According to depositions taken during the suit, the searches largely included a visual examination of the genitals, as well as requesting detainees to bend at the waist and manipulate the buttocks, breasts and genitals to allow for a visual inspection of their body cavities and skin folds. Female detainees were required to “squat and cough” to see if any contraband dislodged from the vagina.
The class action law suit was settled for $3 million. However, Judge Terrence F. McVerry made reference, in his Settlement Opinion, to the lower court decision in Florence v. Board of Freeholders. Judge McVerry wrote that the Third Circuit in Florence held that conducting strip-searches did not require a showing of attempted smuggling or discovered contraband as a justification for the policy.
Allegheny County settled six days before Florence was decided. Florence ultimately made its way to the U.S. Supreme Court and was the subject of last week’s argument.
Assistant Solicitor General Nicole Saharsky argued last week before the Supreme Court that corrections officials should be able to set search policies for their jails. "You cannot say that there are some minor offenders that don't pose a contraband risk.” Saharsky added that guards who screen arrestees are, “Individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly."
Florence’s attorney, Thomas C. Goldstein, argued that such a “significant intrusion on individual privacy and individual dignity” requires a reason to believe that the arrested person poses a danger.
During the 12 months ending June 30, 2010, local jails admitted an estimated 12.9 million prisoners. While not every jail has a blanket strip-search policy -- the High Court would do well to debunk the near universally accepted idea that the U.S Constitution is of limited application behind the jail house walls.
Visit Matt Mangino
Saturday, October 15, 2011
Capital punishment is the least of the justice system's problems
Matthew T. Mangino
The Philadelphia Inquirer
October 14, 2011
Pennsylvania has carried out only three executions since it reinstated the death penalty in 1976. All three were of men who volunteered to be executed.
The state's dormant death penalty contrasts starkly with the 236 executions presided over by Texas Gov. Rick Perry, and also with the death chamber at the Georgia Diagnostic and Classification Center in Butts County, where the execution of convicted killer Troy Davis caused a media frenzy last month.
By midnight on Sept. 21, despite the notoriety, Davis was dead. So was his victim, Michael Allen MacPhail, along with about 675,000 others who have been murdered in this country since the death penalty was reinstated.
Only a tiny fraction of those who kill ultimately pay with their lives. Since 1976, 1,271 men and women have been executed in the United States. More important, a much greater number of those responsible for murder have never even been arrested. A killer is 200 times more likely to get away with murder than to be executed for it.
That number has not improved. In 1961, 91 percent of killings were "cleared" - the term used by police to indicate an arrest has been made. In 2010, only 64 percent were. That means the killers of more than 5,000 people in 2010 alone could be at large, including the killers of more than 150 in Pennsylvania.
Where's the outrage over that? Why haven't the media lamented those 5,000 families who lost a loved one by the hand of someone who has never been identified?
The sorrow that envelops the family of a murder victim, particularly when the murder is unsolved, permeates entire communities. Unsolved homicides also hurt public confidence in the police and diminish police productivity, according to the Police Executive Research Forum. And, to the extent that offenders literally "get away with murder" and the public knows it, deterrence becomes more difficult.
Officer MacPhail's murder was solved, but his killer became the subject of considerable attention and speculation. Nevertheless, death penalty opponents cannot point to a single case in which an innocent person has been executed in the past 35 years - although they have certainly tried. One of their favorite cases was that of Roger Coleman, who was convicted of the rape and murder of his sister-in-law in Virginia. Before he became a suspect, Coleman had the audacity to serve as one of the victim's pallbearers.
Coleman's protestations of innocence became a cause célèbre, landing him on the cover of Time magazine and gaining the badly misplaced trust of many in the anti-death penalty movement. As he was strapped into the electric chair in May 1992, he said, "An innocent man is going to be murdered tonight." Sixteen years after his execution, the governor of Virginia ordered posthumous DNA testing that confirmed Coleman's guilt.
The U.S. Supreme Court ordered an evidentiary hearing in the Troy Davis case in June 2010. Two months later, a U.S. District Court in Georgia ruled: "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. . . . After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence. ..." Davis was finally executed 22 years after the killing of MacPhail.
An estimated 230,000 killings remain unsolved since the reinstatement of capital punishment. Yet more time, attention, and resources continue to be focused on the rare challenge to an execution that somehow captures the morbid curiosity of the public. Whether a condemned killer lives or dies strikes me as far less important than the literally thousands of killers who are walking America's streets.
Visit: http://articles.philly.com/2011-10-14/news/30279589_1_death-penalty-three-executions-murder-victim
The Philadelphia Inquirer
October 14, 2011
Pennsylvania has carried out only three executions since it reinstated the death penalty in 1976. All three were of men who volunteered to be executed.
The state's dormant death penalty contrasts starkly with the 236 executions presided over by Texas Gov. Rick Perry, and also with the death chamber at the Georgia Diagnostic and Classification Center in Butts County, where the execution of convicted killer Troy Davis caused a media frenzy last month.
By midnight on Sept. 21, despite the notoriety, Davis was dead. So was his victim, Michael Allen MacPhail, along with about 675,000 others who have been murdered in this country since the death penalty was reinstated.
Only a tiny fraction of those who kill ultimately pay with their lives. Since 1976, 1,271 men and women have been executed in the United States. More important, a much greater number of those responsible for murder have never even been arrested. A killer is 200 times more likely to get away with murder than to be executed for it.
That number has not improved. In 1961, 91 percent of killings were "cleared" - the term used by police to indicate an arrest has been made. In 2010, only 64 percent were. That means the killers of more than 5,000 people in 2010 alone could be at large, including the killers of more than 150 in Pennsylvania.
Where's the outrage over that? Why haven't the media lamented those 5,000 families who lost a loved one by the hand of someone who has never been identified?
The sorrow that envelops the family of a murder victim, particularly when the murder is unsolved, permeates entire communities. Unsolved homicides also hurt public confidence in the police and diminish police productivity, according to the Police Executive Research Forum. And, to the extent that offenders literally "get away with murder" and the public knows it, deterrence becomes more difficult.
Officer MacPhail's murder was solved, but his killer became the subject of considerable attention and speculation. Nevertheless, death penalty opponents cannot point to a single case in which an innocent person has been executed in the past 35 years - although they have certainly tried. One of their favorite cases was that of Roger Coleman, who was convicted of the rape and murder of his sister-in-law in Virginia. Before he became a suspect, Coleman had the audacity to serve as one of the victim's pallbearers.
Coleman's protestations of innocence became a cause célèbre, landing him on the cover of Time magazine and gaining the badly misplaced trust of many in the anti-death penalty movement. As he was strapped into the electric chair in May 1992, he said, "An innocent man is going to be murdered tonight." Sixteen years after his execution, the governor of Virginia ordered posthumous DNA testing that confirmed Coleman's guilt.
The U.S. Supreme Court ordered an evidentiary hearing in the Troy Davis case in June 2010. Two months later, a U.S. District Court in Georgia ruled: "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. . . . After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence. ..." Davis was finally executed 22 years after the killing of MacPhail.
An estimated 230,000 killings remain unsolved since the reinstatement of capital punishment. Yet more time, attention, and resources continue to be focused on the rare challenge to an execution that somehow captures the morbid curiosity of the public. Whether a condemned killer lives or dies strikes me as far less important than the literally thousands of killers who are walking America's streets.
Visit: http://articles.philly.com/2011-10-14/news/30279589_1_death-penalty-three-executions-murder-victim
Saturday, October 1, 2011
The Cautionary Instruction: Dueling reports on wrongful convictions
Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
September 30, 2011
Last week the long awaited Report of the Advisory Committee on Wrongful Convictions was issued by the Joint State Government Commission. The very first page of the report contains a telling caveat, “The release of this report should not be interpreted as an endorsement by members of the Executive Committee of the… [Report’s] conclusions.”
The caveat was an understatement. The law enforcement and victim representation members of the Commission issued their own Independent Report included in the advisory committtee's overall document starting at Page 309.
The Advisory Committee Report and the Independent Report both agree that the primary purpose of the committee was to review cases in which an innocent person was wrongfully convicted and subsequently exonerated and offer recommendations to reduce the possibility of future wrongful convictions.
That appears to be one of the last points of agreement between the competing reports. Initially the two groups disagreed as to the definition of “wrongfully convicted.” The Committee suggested, in a footnote, the official acts which could result in exoneration: “pardons based on innocence, judicial dismissals of criminal charges after evidence of innocence emerged and acquittals on retrial based upon evidence of no involvement in the crimes.”
The Independent Report took issue with that definition, arguing that the U.S. Supreme Court held that an acquittal “does not prove that the defendant is innocent.” The Independent Report succinctly pointed out that the burden of proof in criminal cases requires proving guilt beyond a reasonable doubt. The Supreme Court has made it clear that a jury must acquit “someone who is probably guilty but whose guilt has not been established beyond a reasonable doubt.”
The fundamental disagreement between the two reports -- did the Committee review only innocent persons wrongfully convicted. The Committee Report suggested that 11 people in Pennsylvania have been exonerated “partly or totally on the basis of DNA.” The Independent Report acknowledged that in one of the 11 cases cited by the Committee, “it is clear that and individual was wrongfully convicted.” However, considerable space in the Independent Report is dedicated to arguing that the remaining 10 individuals are not factually innocent.
Why is the definition of “wrongfully convicted” so important to the authors of the Independent Report? The Independent Report suggested, “The mis-definition of 'innocent' persons to include scores of guilty defendants means that the 'reforms' based on the mis-definition are likely to reward the guilty and make their convictions less likely in the future.” The Committee Report contended, “These exonerations challenge long-accepted assumptions in the soundness of certain practices of the criminal justice system.” The Committee Chairman, Duquesne University law professor John Rago, said "Mistakes happen—the question becomes how do we respond to our mistakes.”
Over the next couple of weeks The Cautionary Instruction will examine the recommendations put forth in the Advisory Committee Report and the Independent Report.
Visit Matt Mangino's Blog
Pittsburgh Post-Gazette/Ipso Facto
September 30, 2011
Last week the long awaited Report of the Advisory Committee on Wrongful Convictions was issued by the Joint State Government Commission. The very first page of the report contains a telling caveat, “The release of this report should not be interpreted as an endorsement by members of the Executive Committee of the… [Report’s] conclusions.”
The caveat was an understatement. The law enforcement and victim representation members of the Commission issued their own Independent Report included in the advisory committtee's overall document starting at Page 309.
The Advisory Committee Report and the Independent Report both agree that the primary purpose of the committee was to review cases in which an innocent person was wrongfully convicted and subsequently exonerated and offer recommendations to reduce the possibility of future wrongful convictions.
That appears to be one of the last points of agreement between the competing reports. Initially the two groups disagreed as to the definition of “wrongfully convicted.” The Committee suggested, in a footnote, the official acts which could result in exoneration: “pardons based on innocence, judicial dismissals of criminal charges after evidence of innocence emerged and acquittals on retrial based upon evidence of no involvement in the crimes.”
The Independent Report took issue with that definition, arguing that the U.S. Supreme Court held that an acquittal “does not prove that the defendant is innocent.” The Independent Report succinctly pointed out that the burden of proof in criminal cases requires proving guilt beyond a reasonable doubt. The Supreme Court has made it clear that a jury must acquit “someone who is probably guilty but whose guilt has not been established beyond a reasonable doubt.”
The fundamental disagreement between the two reports -- did the Committee review only innocent persons wrongfully convicted. The Committee Report suggested that 11 people in Pennsylvania have been exonerated “partly or totally on the basis of DNA.” The Independent Report acknowledged that in one of the 11 cases cited by the Committee, “it is clear that and individual was wrongfully convicted.” However, considerable space in the Independent Report is dedicated to arguing that the remaining 10 individuals are not factually innocent.
Why is the definition of “wrongfully convicted” so important to the authors of the Independent Report? The Independent Report suggested, “The mis-definition of 'innocent' persons to include scores of guilty defendants means that the 'reforms' based on the mis-definition are likely to reward the guilty and make their convictions less likely in the future.” The Committee Report contended, “These exonerations challenge long-accepted assumptions in the soundness of certain practices of the criminal justice system.” The Committee Chairman, Duquesne University law professor John Rago, said "Mistakes happen—the question becomes how do we respond to our mistakes.”
Over the next couple of weeks The Cautionary Instruction will examine the recommendations put forth in the Advisory Committee Report and the Independent Report.
Visit Matt Mangino's Blog
Tuesday, September 20, 2011
Eyewitness Identification Comes to the Forefront
Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial
According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness evidence in criminal cases. The court, for the first time, attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth.
Matthew T. Mangino is the former district attorney of Lawrence County, Pa. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com.
Visit Pennsylvania Law Weekly
September 20, 2011
Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial. Thirty years ago, Supreme Court Justice William J. Brennan Jr. wrote: "There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, 'That's the one!'"
However, following the publication of hundreds of scholarly studies examining eyewitness identification this widely accepted form of evidence is being called into question.According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness evidence in criminal cases. The court, for the first time, attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth.
Matthew T. Mangino is the former district attorney of Lawrence County, Pa. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com.
Visit Pennsylvania Law Weekly
Sunday, September 18, 2011
The Cautionary Instruction: Orwell, Global Positioning Systems and the U.S Supreme Court
The Pittsburgh Post-Gazette/Ipso Facto
September 16, 2011
In 1949, George Orwell published Nineteen Eighty-Four, a novel. Orwell describes a futuristic state, its leader Big Brother and the constant use of surveillance to maintain order. More than half-a-century later, Orwell’s book is drawing a lot of comparisons to global positioning system (GPS) technology used in modern law enforcement investigations.
GPS, in development since as early as 1959, came into its own during the first gulf war. The desert-based war was the first combat use of GPS, and it was hugely successful. Law enforcement quickly realized the potential for GPS and many civil libertarians were quick to realize the technology’s impact on civil liberties.
The U.S. Supreme Court will hear a case this fall that will try to reconcile what was once considered science fiction with the reality of everyday life. At stake are the fundamental protections of the Fourth Amendment, freedom from “unreasonable search and seizure.”
In United States v. Jones, the Supreme Court will hear arguments regarding what some consider to be the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?
In 2005, police investigating alleged drug activity secured a warrant, valid for 10 days, from a federal judge who authorized the attachment of a GPS device to a vehicle registered to the wife of Antoine Jones. The attachment of the device was authorized to occur in Washington, D.C. Instead, investigators attached the device while the car was parked in Maryland. The GPS device was used to record Jones’ movements around-the-clock for four weeks -- without seeking a time extension from the court.
In overturning Jones’ conviction, Federal Judge Douglas H. Ginsburg wrote, “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts.”
In the Jones case, the Government is arguing that GPS devices can be especially helpful in the early stages of an investigation as the police gather evidence. Requiring a warrant could hurt the government's ability to investigate drug trafficking, terrorism and other crimes.
Jones’ attorneys argued, "The advent of satellite-based tracking technology has enabled the government to engage in 24-hour tracking of the movements of any private citizen for extended -- indeed unlimited -- periods of time.”
Visit Matt Mangino
September 16, 2011
In 1949, George Orwell published Nineteen Eighty-Four, a novel. Orwell describes a futuristic state, its leader Big Brother and the constant use of surveillance to maintain order. More than half-a-century later, Orwell’s book is drawing a lot of comparisons to global positioning system (GPS) technology used in modern law enforcement investigations.
GPS, in development since as early as 1959, came into its own during the first gulf war. The desert-based war was the first combat use of GPS, and it was hugely successful. Law enforcement quickly realized the potential for GPS and many civil libertarians were quick to realize the technology’s impact on civil liberties.
The U.S. Supreme Court will hear a case this fall that will try to reconcile what was once considered science fiction with the reality of everyday life. At stake are the fundamental protections of the Fourth Amendment, freedom from “unreasonable search and seizure.”
In United States v. Jones, the Supreme Court will hear arguments regarding what some consider to be the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?
In 2005, police investigating alleged drug activity secured a warrant, valid for 10 days, from a federal judge who authorized the attachment of a GPS device to a vehicle registered to the wife of Antoine Jones. The attachment of the device was authorized to occur in Washington, D.C. Instead, investigators attached the device while the car was parked in Maryland. The GPS device was used to record Jones’ movements around-the-clock for four weeks -- without seeking a time extension from the court.
In overturning Jones’ conviction, Federal Judge Douglas H. Ginsburg wrote, “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts.”
In the Jones case, the Government is arguing that GPS devices can be especially helpful in the early stages of an investigation as the police gather evidence. Requiring a warrant could hurt the government's ability to investigate drug trafficking, terrorism and other crimes.
Jones’ attorneys argued, "The advent of satellite-based tracking technology has enabled the government to engage in 24-hour tracking of the movements of any private citizen for extended -- indeed unlimited -- periods of time.”
Visit Matt Mangino
Friday, July 22, 2011
Offenders to Get Review in Light of New Sentencing Guidelines
The Pennsylvania Law Weekly
July 19, 2011
By: Matthew T. Mangino
Federal judges will be pounding the Federal Sentence Guidelines as the result of two significant decisions in the last couple of weeks. Why? Two reasons. The first is the U.S. Supreme Court decision in Freeman v. United States , and the second is the decision by the U.S. Sentencing Commission regarding retroactivity of the sentence guideline amendment related to the crack/powder cocaine sentencing disparity.
In 2005, William Freeman pled guilty to a federal drug offense and was sentenced to 106 months in prison based on a plea agreement that referred to, and was consistent with, the federal sentence guideline of 46 to 57 months plus a 60-month gun enhancement.
Two years later, the U.S. Sentencing Commission amended the guideline to reduce the crack/powdered cocaine sentencing disparity. The guidelines were changed after criticism that harsher sentences for crack disproportionately punished African-Americans. The amendment changed the range of Freeman's sentence from 46 to 57 months to 37 to 46 months.
A federal judge refused Freeman's motion for a sentence reduction of about nine-months, and the 6th U.S. Circuit Court of Appeals affirmed. The Federal District Court and the 6th Circuit had ruled that offenders such as Freeman, who had entered into plea bargains in which the proposed sentence was binding on a judge, could not take advantage of the new guidelines because their sentences were not based on the guidelines.
However, the U.S. Supreme Court disagreed.
According to Justice Anthony Kennedy writing for the majority, "there is no reason to deny" Freeman a sentence reduction since federal law allows judges to correct sentences that were based on a guideline provision that was later adjusted, amended or ruled invalid.
In order to reduce unwarranted federal sentencing disparities, the Sentencing Reform Act of 1984 authorizes the U.S. Sentencing Commission to create, and to retroactively amend, sentencing guidelines to enhance judicial discretion. According to the U.S. Supreme Court in Freeman , "Title 18 U. S. C. §3582(c)(2) permits an offender who was sentenced to a term of imprisonment "based on" a guidelines sentencing range that has subsequently been lowered by retroactive amendment to move for a sentence reduction.
"In every case the judge must exercise discretion to impose an appropriate sentence," Kennedy wrote. "This discretion, in turn, is framed by the guidelines. And the guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence."
Chief Justice John Roberts wrote a dissenting opinion, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Roberts wrote that a plea bargain, like any agreement, has its bitter and sweet parts. "Because of today's decision, however, Freeman gets more sweet and the government more bitter than either side bargained for," wrote Chief Justice Roberts.
The precise impact of the Freeman decision is unclear because Justice Sonia Sotomayor joined in the majority, but concluded that a convicted offender is eligible for a reduction only if the plea agreement was specifically based on a recommended sentence that was tied to the guidelines.
This past week's other big news regarding the Federal Sentence Guidelines also had to do with the crack/powder sentencing disparity. The U.S. Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010.
The Fair Sentencing Act of 2010 reduced the crack/powder cocaine sentence disparity from 100 to 1 down to 18 to 1. According to The Washington Post , an offender would have to be convicted of selling 28 grams or more of crack to be hit with a five-year mandatory sentence. A 10-year prison term would be handed down for 280 grams or more. The legislation also eliminated a mandatory minimum sentence for simple possession.
The Federal Sentence Guidelines were at one time binding on federal judges. A federal judge had discretion to sentence a defendant, but only within the narrow sentencing range provided by the guidelines, according to the Congressional Research Service. In United States v. Booker (2005), the U.S. Supreme Court declared that the guidelines must be considered advisory rather than mandatory, in order to comply with the Constitution. Instead of being bound by the guidelines, sentencing courts must treat the federal guidelines as just one of a number of sentencing factors. After Booker , some judges imposed lower sentences on crack cocaine offenders than the sentences recommended by the guidelines. In 2007, the Supreme Court in Kimbrough v. United States , ruled that a court may impose a below-the-guidelines sentence based on its conclusion that the 100:1 crack/powder cocaine ratio created an unnecessary disparity.
A U.S. Sentencing Commission press release estimated, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of more than $200 million within the first five years after retroactivity takes effect.
The chairwoman of the commission, Federal District Court Judge Patti B. Saris acknowledged that early release "may negatively impact public safety." She said that "careful thought given to the offender's potential risk to public safety" would be part of the judicial review called for in the new policy, reported The New York Times .
Federal judges will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction provided by the Sentencing Commission. Those instructions will include specific consideration of whether reducing an offender's sentence would pose a risk to public safety.
Matthew T. Mangino is the former district attorney of Lawrence County. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com
July 19, 2011
By: Matthew T. Mangino
Federal judges will be pounding the Federal Sentence Guidelines as the result of two significant decisions in the last couple of weeks. Why? Two reasons. The first is the U.S. Supreme Court decision in Freeman v. United States , and the second is the decision by the U.S. Sentencing Commission regarding retroactivity of the sentence guideline amendment related to the crack/powder cocaine sentencing disparity.
In 2005, William Freeman pled guilty to a federal drug offense and was sentenced to 106 months in prison based on a plea agreement that referred to, and was consistent with, the federal sentence guideline of 46 to 57 months plus a 60-month gun enhancement.
Two years later, the U.S. Sentencing Commission amended the guideline to reduce the crack/powdered cocaine sentencing disparity. The guidelines were changed after criticism that harsher sentences for crack disproportionately punished African-Americans. The amendment changed the range of Freeman's sentence from 46 to 57 months to 37 to 46 months.
A federal judge refused Freeman's motion for a sentence reduction of about nine-months, and the 6th U.S. Circuit Court of Appeals affirmed. The Federal District Court and the 6th Circuit had ruled that offenders such as Freeman, who had entered into plea bargains in which the proposed sentence was binding on a judge, could not take advantage of the new guidelines because their sentences were not based on the guidelines.
However, the U.S. Supreme Court disagreed.
According to Justice Anthony Kennedy writing for the majority, "there is no reason to deny" Freeman a sentence reduction since federal law allows judges to correct sentences that were based on a guideline provision that was later adjusted, amended or ruled invalid.
In order to reduce unwarranted federal sentencing disparities, the Sentencing Reform Act of 1984 authorizes the U.S. Sentencing Commission to create, and to retroactively amend, sentencing guidelines to enhance judicial discretion. According to the U.S. Supreme Court in Freeman , "Title 18 U. S. C. §3582(c)(2) permits an offender who was sentenced to a term of imprisonment "based on" a guidelines sentencing range that has subsequently been lowered by retroactive amendment to move for a sentence reduction.
"In every case the judge must exercise discretion to impose an appropriate sentence," Kennedy wrote. "This discretion, in turn, is framed by the guidelines. And the guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence."
Chief Justice John Roberts wrote a dissenting opinion, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Roberts wrote that a plea bargain, like any agreement, has its bitter and sweet parts. "Because of today's decision, however, Freeman gets more sweet and the government more bitter than either side bargained for," wrote Chief Justice Roberts.
The precise impact of the Freeman decision is unclear because Justice Sonia Sotomayor joined in the majority, but concluded that a convicted offender is eligible for a reduction only if the plea agreement was specifically based on a recommended sentence that was tied to the guidelines.
This past week's other big news regarding the Federal Sentence Guidelines also had to do with the crack/powder sentencing disparity. The U.S. Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010.
The Fair Sentencing Act of 2010 reduced the crack/powder cocaine sentence disparity from 100 to 1 down to 18 to 1. According to The Washington Post , an offender would have to be convicted of selling 28 grams or more of crack to be hit with a five-year mandatory sentence. A 10-year prison term would be handed down for 280 grams or more. The legislation also eliminated a mandatory minimum sentence for simple possession.
The Federal Sentence Guidelines were at one time binding on federal judges. A federal judge had discretion to sentence a defendant, but only within the narrow sentencing range provided by the guidelines, according to the Congressional Research Service. In United States v. Booker (2005), the U.S. Supreme Court declared that the guidelines must be considered advisory rather than mandatory, in order to comply with the Constitution. Instead of being bound by the guidelines, sentencing courts must treat the federal guidelines as just one of a number of sentencing factors. After Booker , some judges imposed lower sentences on crack cocaine offenders than the sentences recommended by the guidelines. In 2007, the Supreme Court in Kimbrough v. United States , ruled that a court may impose a below-the-guidelines sentence based on its conclusion that the 100:1 crack/powder cocaine ratio created an unnecessary disparity.
A U.S. Sentencing Commission press release estimated, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of more than $200 million within the first five years after retroactivity takes effect.
The chairwoman of the commission, Federal District Court Judge Patti B. Saris acknowledged that early release "may negatively impact public safety." She said that "careful thought given to the offender's potential risk to public safety" would be part of the judicial review called for in the new policy, reported The New York Times .
Federal judges will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction provided by the Sentencing Commission. Those instructions will include specific consideration of whether reducing an offender's sentence would pose a risk to public safety.
Matthew T. Mangino is the former district attorney of Lawrence County. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com
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