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20140718wap californiadeathchamber480

A Federal Judge struck down California's death penalty. US District Judge Cormac Carney found that lengthy delays in carrying out the death penalty amounted to a violation of the Eight Amendment’s ban on cruel and unusual punishment.

Judge Carney wrote:

Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed.

My book The Executioner's Toll, 2010, released in April made those very arguments:

Let's say that death penalty verdicts continue at 2010's pace of 112 per year for the next ten years. There would be approximately 4,500 men and women on death row. Let's say that all 32 states with the death penalty executed one offender a month for the next ten years; these occurrences are not completely realistic since only eight states have more than 120 offenders on death row. After ten years at that frantic, and frankly impossible, pace, there would be 4,300 executions, still leaving about 200 people on death row. Carrying out an execution today is as freakishly arbitrary as imposing the death penalty was in 1972. If you are one of 697 inmates on California’s death row, a state that has not carried out an execution in five years, and suddenly you are scheduled for execution — that is a lot like being struck by lightning.

The death penalty has been a permissible form of punishment for certain crimes in the United States throughout the nation's history, with the first recorded case occurring in 1608, according to Jurist at the University of Pittsburgh School of Law.

The Supreme Court has held on numerous occasions that state proscription of the death penalty is not a violation of the Eighth Amendment's ban on cruel and unusual punishment. The court has also held, however, that the Eighth Amendment does impose limitations on when and how states may use the death penalty.

The most recent Gallup Poll on the death penalty has support at about 60 percent, down from a high in 1994 of 80 percent. That’s not to say that 60 percent is not a significant number or that 32 of 50 states with the death penalty is not a substantial majority. But, unequivocally the death penalty is trending downward.

(Image: The death chamber of the lethal injection facility at San Quentin State Prison in San Quentin, Calif., shown here in a 2010 file photo. Eric Risberg/Associated Press)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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As part of a flurry of last-minute activity, state lawmakers have sent Governor Tom Corbett a bill that would outlaw so-called "revenge porn" in Pennsylvania.

On revenge porn sites, users upload X-rated photos of ex-lovers. I’m going to refer to the victims as women — occasionally men are victimized — but the victims are predominately women. The X-rated material is posted without the woman's permission. A woman sends a personal, intimate photograph to her boyfriend and when the relationship ends; her image is all over the internet, often with a name, location and links to her social media accounts.

Basically, revenge porn works like this:

1. Person A and Person B get married, date or hook up. They exchange or make intimate photographs and/or videos.

2. Person A and Person B stop getting along, and Person A gets angry.

3. Person A disseminates Person B’s private photographs or videos without consent — either to humiliate person B, or for profit, or both.

State Senator Judy Schwank a Democrat from Berks County, proposed the Senate’s version of the bill, saying that when it becomes law upon receiving Governor Corbett’s signature as expected, "persons who publicly post sexual images of their partners in order to annoy them or harm them will commit a crime that will have significant consequences."

She's not kidding: Violations of Pennsylvania's revenge-porn law will carry up to two years in state prison — or five years if the victim is a minor, which means that teenagers will need to be real clear about this law when they go through the emotional turmoil of their first break-up — and, like many crimes, will also come with the potential for financial damages in civil court.

According to the National Conference of State Legislatures, laws have been enacted in 10 states including Arizona, Idaho, Utah, Virginia and Wisconsin. At least 27 other state legislatures are considering some measure to outlaw similar conduct. In New Jersey, legislation was passed in the wake of the tragic suicide of 18-year-old Rutgers University student Tyler Clementi who was videotaped without his consent during a sexual encounter with another male.

California was ahead of the curve, passing a law in the fall of 2013 to prohibit the distribution of "intimate" images taken "with the intent to cause serious emotional distress." But some argue the law — which protects any images that were taken with the subject's consent if the distributor of the image is also the photographer — doesn’t go far enough.

(Image: matto353/iStock)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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Olympic star and double-amputee Oscar Pistorius shot and killed his girlfriend in 2013. Pistorius is on trial in South Africa for her murder. He acknowledges that he shot Reeva Steenkamp when he mistook her for an intruder.

In May, Pistorius was ordered by a judge to undergo psychiatric tests at the request of the chief prosecutor, Gerrie Nel. The prosecutor said he had no option but to ask for it after an expert witness for the defense testified that Pistorius had an anxiety disorder since childhood that may have influenced his judgment when he fatally shot Steenkamp.

Under South African law Pistorius could be acquitted if it’s found that he was not criminally responsible for Steenkamp’s shooting because of a mental illness.

Under South African law a defendant may lack the capacity to knowingly commit a crime because of mental illness. This was previously referred to as an “insanity” defense — South African law now refers to it as pathological incapacity.

By law the defense of pathological incapacity provides:

“A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable —

(a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission.”

In the United States a majority of states, including Pennsylvania, apply the M’Naughten Rule when evaluating insanity.

Under the law, a person is legally insane only if, at the time of the act, he was laboring "under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.''

The rule sets a very high standard. The insanity defense is sought in few cases and proving it is extremely rare.

"You can be severely mentally ill but not qualify as legally insane,'' said Thomas P. Rogers, a lawyer from eastern Pennsylvania.

The hurdle is such, said Rogers, that a defendant has to "believe he's shooting Martians, not his wife, because voices are telling him they're Martians, and that he's supposed to shoot them.''

After a month long break in the trial, a panel of mental health experts concluded that Pistorius was not suffering from a mental illness when he killed his girlfriend. The experts reported to the court that Pistorius was "capable of appreciating the wrongfulness of his act" when he killed Steenkamp.

(Image: Oscar Pistorius in court in Pretoria on Wednesday. Gianluigi Guercia via Associated Press)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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20140627wap supremescellphone490

The U.S. Supreme just made it more difficult to continue an investigation of criminal conduct incident to the arrest of a suspect.

In Riley v. California and United States v. Wurie, the court said that with rare exceptions, the Fourth Amendment requires that police obtain a search warrant to probe the contents of cellphones in the possession of arrestees. Rejecting government assertions of the need for quick access to the contents of cellphones, the court stressed the damage to personal privacy that would result from police seizure of devices that “place vast quantities of personal information literally in the hands of individuals.

The law prior to these decisions provided that an arresting officer may search an arrestee to discover and remove weapons and to seize evidence to prevent its concealment or destruction. Included in virtually every search is a cellphone.

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ ” Chief Justice John Roberts Jr. wrote for the court. He added that cellphones and smartphones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies, wrote Adam Liptak of the New York Times.

“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”

The court also held that while the police may not search the cellphone data, they may search the cellphone itself to make sure it cannot be used as a weapon. Justice Samuel Alito filed a concurring opinion, noting that he was not convinced that the rule on searches incident to arrest is based on the need to protect the safety of the arresting officers and the need to prevent the destruction of evidence.

The justices said the police are not “without specific means” to address their concern about the remote wiping of a cellphone to remove evidence. “Remote wiping can be fully prevented by disconnecting a phone from the network,” Roberts wrote. The authorities, he said, can turn the phone off or remove its battery.

(Image: Evan Vucci/Associated Press)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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20140627 kengormley150Duquesne University School of Law Dean Ken Gormley will be featured in the mini-series, 'The '90s: The Last Great Decade', scheduled to run from Sunday, July 6, through Tuesday, July 8, on the National Geographic channel, the university announced this week.

The three episodes, according to National Geographic, re-visit the 1990s "through 'inside out' storytelling and analysis via 120 original interviews -- from unsung heroes behind the decade's most riveting stories to the biggest names in politics, tech, movies and music."

The university's announcement said Gormley, whose segment will run on July 6, was interviewed at length for the mini-series about the various scandals and legal dilemmas that plagued Bill Clinton’s presidency, including Whitewater, Paula Jones, the investigation headed by Ken Starr, the Monica Lewinsky affair and the impeachment trial in Congress. He also served as story consultant for the mini-series.

"It was a great experience being part of this program that will be broadcast to a world-wide audience," Gormley said in the announcement. "The producers gained access to major figures who played key roles in this period of American history, including General Colin Powell, Prime Minister Tony Blair and others. The production team was extremely professional and attentive to historical detail -- I’m certain that the finished product will be both high-quality and riveting."

Gormley is the author of The Death of American Virtue: Clinton vs. Starr, for which he conducted extensive interviews with President Bill Clinton, prosecutor Kenneth Starr, Monica Lewinsky, Linda Tripp, Paula Jones, Henry Hyde and various Supreme Court justices, among others. Published by Crown, The Death of American Virtue was selected as one of the Best 10 Books of 2010 by the Washington Post and was named by the New York Times’ Janet Maslin as one of the Top 10 Books of 2010.

(Image: Duquesne Univeristy Law School Dean Ken Gormley/Duquesne University)

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