Ipso Facto

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Last fall, the Washington Post reported that U.S. Supreme Court Chief Justice John G. Roberts Jr. told a room full of college students that the biggest constitutional challenge facing the court was "the fundamental principle underlying what constitutional protection is and apply[ing] it to new issues and new technology."

The Supreme Court took on another aspect of that challenge this week, hearing arguments in two cases, Riley v. California, No. 13-132, and United States v. Wurie, No. 13-212.

The Court is considering whether police need a warrant to search the contents of a cellphone seized when making an arrest. Each case deals with similar, but not identical, technologies. The Wurie case is out of Massachusetts and deals with an old-style flip phone, while the Riley case out of California deals with a smartphone.

The Obama administration and the California Attorney General’s Office urged the court to endorse a bright-line rule that would allow police to search the full content of any cellphone, tablet, or laptop computer being carried by anyone arrested by authorities for any reason.

Sixteen states’ attorneys general asked the Supreme Court to equate the privacy of handheld data with that of “information on paper or in other documentary forms.” The National Sheriffs’ Association and related law enforcement agencies argued that warrantless search of cell phones is justified in the face of “time-sensitive accessibility” features like password locks.

Critics say cellphones, particularly smart phones, and other electronic devices increasingly hold or provide access to the most private details of a person’s life -- including personal photos, videos, messages, names of friends and associates, banking and financial information, and medical records, among others.

Justice Antonin Scalia did not seem deeply troubled by the prospect of a cellphone search during an arrest. However, he suggested that it should be limited to evidence of the crime for which the individual was arrested.

Justice Anthony Kennedy brought up a perceived conflict in allowing warrantless cellphone searches in connection with arrests for serious crimes while denying police that right in the case of lesser offenses.

The most vocal defender of smartphone privacy was Justice Elena Kagan, who said she was troubled by the notion that police could confiscate and copy someone’s phone just because he or she was arrested for driving without a seatbelt.

“People carry their lives on cellphones,” she declared.

Scalia seemed to agree. “It seems absurd you should be able to search that person’s iPhone because of an arrest for a minor crime,” he said.

(Top image: maxkabakov/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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executionerstoll150The legal maneuvering in Oklahoma over the scheduled executions of two condemned men convicted of separate murders has taken a strange, but not entirely unusual turn. This week, the Oklahoma Supreme Court stepped in to delay the executions of Clayton Lockett and Charles Warner while they pursued their challenge to the state’s “secret” lethal injection methods. That is not unusual.

What is unusual is that the Oklahoma Supreme Court does not normally handle criminal matters. The Court of Criminal Appeals had refused to consider the request for a delay, leading to an uneasy confrontation between the two courts.

As politics and the death penalty intersect the issue of delay got even murkier.

The Oklahoma Attorney General called into question the Supreme Court’s authority and asked the Court to drop its stay. The Court rejected the request, and soon after Governor Mary Fallin issued an executive order asserting that the stay was “outside the constitutional authority” of the Supreme Court. She exercised her own constitutional authority to delay the executions by one week, meaning that the two men could both be put to death before their challenge to lethal injection is resolved.

This confrontation is only the latest in a long history of political wrangling over the death penalty. My book, The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States released this week by McFarland & Company, examines how the death penalty has evolved from a term of art utilized in the criminal justice system to cultural buzz words used to reveal a philosophy on issues of law and order.

The death penalty has become, in many ways, a symbolic political term that lends itself to the illusion of toughness, if you support the death penalty; and to the illusion of weakness if you do not support the death penalty.

The idea that a political candidate can establish her law and order bona fides by being pro-death penalty has enhanced the significance of the death penalty in American politics. As capital punishment has evolved into a political symbol, “Joe Six-Pack” at the corner bar can also confirm his tough, red-blooded, law-abiding persona through his support of the death penalty.

The death penalty has morphed into a hot-button political issue right up there with abortion, guns and taxes. That is why Oklahoma’s Governor, attorney general, Supreme Court Justices and appellate judges are involved in this race to the death chamber—a public spectacle that serves no other purpose than political aggrandizement.


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 book The Executioner's Toll, 2010 is now available from McFarland & Company publishers.

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In 2013, 246 people were murdered in Philadelphia but the police only received 82 tips about those homicides. Officials say those numbers are indicative of the “no snitching” culture in Philadelphia.

Philadelphia officials are actively trying to recruit informants to help solve murders through innovative social media efforts and good old fashioned rewards. Ironically, at the same time a high profile Philadelphia informant is being eviscerated in the media. Tyrone B. Ali an informant who was helping the Attorney General’s office in a corruption probe has been hung out to dry.

Informants are a hot topic in Philadelphia. Anyone thinking of cooperating with police is certainly going to be influenced by the battle between the attorney general, a former lead prosecutor in the attorney general’s office and the district attorney of Philadelphia.

Last month, Attorney General Kathleen Kane decided to drop a political corruption probe in Philadelphia.

One of the primary prosecutors in the investigation was Frank G. Fina. He is now front and center in this embarrassing public dispute along with his new boss Philadelphia District Attorney Seth Williams.

The dispute is centered on the viability of corruption prosecutions which hinge on the credibility, or lack thereof, of Ali.

A confidential informant is a person usually accused of a crime that either comes forward, or is asked by police, to offer assistance in exchange for leniency. Jailhouse informants, inmates often already convicted, are commonly recruited to testify about statements made by other inmates accused of murder, organized crime, sexual assault and just about any other crime.

The confidential informant has a useful place in the investigation and prosecution of criminal conduct. The closely vetted and reliable confidential informant can provide a wealth of information about an ongoing criminal enterprise. A drug informant can make controlled hand-to-hand purchases of illegal drugs without which there would be few successful drug prosecutions.

At times, confidential informants go sour. In Sarasota, Florida prosecutors dropped or reduced felony drug charges against more than a dozen people after learning that the police informant who set up the drug deals had sex with some of the defendants.

The informant crossed ethical and legal boundaries in what is already a murky world where criminals work with undercover officers under unseemly and often dangers circumstance to document criminal activity.

Although almost invisible to the public, the use of criminal confidential informants permeates the criminal justice system across the country. According to Alexandra Natapoff in Secret Justice: Criminal Informants and America’s Underground Legal System, “These deals typically take place off-the-record, subject to few rules and little oversight. While criminal informants…can be important investigative tools, using them has some serious costs.”

(Top image: The skyline of downtown Philadelphia. Tom Mihalek/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 book The Executioner's Toll, 2010 is due out this summer.

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justicedepartmentlogo 150The U.S. Department of Justice recently announced a major new initiative aimed at enhancing public safety by strengthening relationships between law enforcement and communities. The DOJ has established the National Center for Building Community Trust and Justice.

For years, criminal justice practitioners have advocated for better relationships between the police and the public. Eight years ago, Police Chief Magazine suggested, “By building trust with the community, police officers can persuade citizens to come out of their houses and businesses to talk about problems.”

A better police community relationship serves four important objectives. First, it enables police officers and community prosecutors to develop a plan for solving problems and finding solutions. Second, it provides invaluable information that law enforcement can use to develop witnesses. Third, it builds the trust in the criminal justice system that is necessary to cultivate potential jury pools. Fourth, citizens who feel that their problems are taken seriously become part of the problem-solving process, providing the court with victim impact statements on how crime affects them.

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Jack Ready died on February 24, 2014 in Ft. Washington, Maryland. He was 86 years old. There was so much more to Ready’s life. Ready was a special agent in the U.S. Secret Service, assigned to the presidential motorcade as it made its way through Dealey Plaza in Dallas on November 22, 1963.

Ready was assigned to the car following the presidential limousine positioned on the car’s right-front running board. His position placed him opposite agent Clint Hill.

When the shots rang out, Hill rushed forward and—in a scene that would become iconic -- jumped onto the limousine in an effort to shield the president and the first lady. Ready held his position.

Hill would later say, “I know that it was devastating to Jack that he was unable to do anything.”

It wasn’t until 1902 that the Secret Service, created in 1865 to eradicate counterfeit currency, assumed official full-time responsibility for protecting the president. Before that, security for the president could be unbelievably lax.

The most astounding example was the scant protection afforded President Abraham Lincoln on the night he was assassinated. Only one man, an unreliable Washington cop named John Frederick Parker, was assigned to guard the president at Ford’s Theatre on April 14, 1865.

The secret service has become more and more sophisticated and at times more heroic. On March 30, 1981, Secret Service agent Tim McCarthy stepped in front of a bullet, fired by John Hinckley Jr., intended for President Ronald Reagan.

"You never dream that you are going to be in this situation. You train intensely, there's a reason for doing it, and frankly I never thought it would happen to me," McCarthy said in an interview with CNN last year. “I'm just thankful that on that particular day I was able to do what I was trained to do."

Lately the news about the Secret Service has been anything but heroic—starting with a South American prostitution scandal last year that made world-wide headlines.

Thirteen agents were accused of partying with female foreign citizens at a hotel in the seaside resort of Cartagena, Colombia, where they were staying before President Barack Obama's arrival for a Latin American summit. Some of the women were prostitutes and the incident came to light after an agent had a fight in the hotel with a prostitute over payment.

Last month, two agents in Florida were involved in a traffic accident that reportedly involved alcohol. Then there was an incident involving an agent recently found drunk in a hotel in the Netherlands.

Not the stuff of Jack Ready, Clint Hill or Tim McCarthy.

(Top image: United States Secret Service director Julia Pierson and Senate Homeland Security Committee Chairman Tom Carper, D-Del., leave a committee hearing on recent Secret Service agents behavior, on Capitol Hill in Washington, Tuesday, April 1, 2014. Cliff Owen/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 book The Executioner's Toll, 2010 is due out this summer.

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20140328wap AGkane 150The attorney general of Pennsylvania, a former lead prosecutor in the AG’s office and the district attorney of Philadelphia are embroiled in a bitter dispute. The acrimony boiled over after Attorney General Kathleen Kane decided to drop a political corruption probe in Philadelphia.

However, the seeds of discontent were sowed soon after Kane’s swearing-in when she launched an investigation into the Jerry Sandusky investigation. One of the primary prosecutors in the Sandusky investigation was Frank G. Fina, the same prosecutor who oversaw the Philadelphia corruption probe. Fina is now front and center in this ugly public dispute along with his new boss Philadelphia District Attorney Seth Williams.

On March 17, the Philadelphia Inquirer reported that Kane's office shut down a corruption investigation that reportedly involved at least four Philadelphia Democrats accepting payments ranging from $500 to $2,000.

The following day, Kane held a press conference saying that she dropped the investigation because it became "nonprosecutable" once charges were dismissed against the informant in the case. Kane also said that the investigation was mismanaged, and that her office found evidence that it was racially biased.

Several days later Kane issue a statement that read in part, "The majority of the work, including 91 percent of the recordings by a confidential informant, took place 18 months prior to my inauguration, through three former attorneys general.”

"Furthermore, I do not have any animosity towards the lead prosecutor of this case. I do not know the former prosecutor any more than I know the individuals targeted in this investigation,” said Kane.

Fina countered in a Philadelphia Inquirer op-ed. “My colleagues and I conducted our investigation honestly, ably, and with integrity. I am willing to sit down at the same table with Kane … where we can each respond to any questions that are posed about the investigation.”

Williams was also sharply critical of Kane. The AG “drops a case supported by hundreds of hours of devastating tapes because the main witness got a deal on a bunch of government fraud charges," he wrote. "As a DA, I think this might be the most disturbing aspect of the whole sordid spectacle. You don't have to be a prosecutor to know this is how it's done."

This public spectacle should raise grave concerns for elected prosecutors. The buck stops with the attorney general or district attorney. Prosecutors have wide discretion and have to make difficult and often unpopular decisions every day.

Those decisions are generally made with the input of line prosecutors, investigators and staff. There may be dissent within the office on how or whether to proceed. Should that dissent be aired in public?

Should an elected prosecutor, accountable to the citizens who vote her into office, also be accountable to subordinate attorneys within her office? That would be a difficult way to run a prosecutor’s office.

(Top image: Pennsylvania Attorney General Kathleen Kane. Matt Rourke/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 book The Executioner's Toll, 2010 is due out this summer.

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Intense opposition from the National Rifle Association may have doomed President Barack Obama's nomination of  Dr. Vivek Hallegere Murthy for surgeon general.

In a letter to Senate leadership in February, the NRA warned against the confirmation, saying, "Dr. Murthy's record of political activism in support of radical gun control measures raises significant concerns."

Murthy is a physician and public health expert at Harvard Medical School and Brigham and Women’s Hospital. He is the co-founder and president of Doctors for America a group of about 16,000 physicians and medical students that advocates for access to affordable, high quality health care and has been a strong supporter of the Affordable Care Act

Murthy became a target of the NRA after he wrote a letter to congressional leaders in his role as president of Doctors for America. “As health care professionals who are confronted with the human cost of gun violence every day, we are unwavering in our belief that strong measures to reduce gun violence must be taken immediately. We strongly urge Congress and the Obama administration to put legislation in place now and develop a comprehensive plan to reduce gun-related injuries and deaths,” Murthy wrote.

He pointed out in the letter that 100,000 people are killed or injured by guns in America every year. It is a statement of fact that gun violence is a public health concern. According to a report by the Center for American Progress, gun deaths will surpass car accident deaths among young people next year.

Murthy’s view is not controversial within the public health community. The American Medical Association officially opposes any laws that would block doctors from having open conversations about firearm safety in the home and the Academy of Pediatrics has recommended specific gun violence prevention measures to Congress.

Murthy’s position is not unprecedented. Past surgeons general, including C. Everett Koop, appointed by President Ronald Reagan, spoke out on the public health threats presented by guns. In 1992 Koop co-authored a paper, “Time to Bite the Bullet Back.”

Koop indicated that his views on gun violence were informed by his 1985 Workshop on Violence and Public Health.

“No society, including ours, need be permeated by firearm homicide. …The right to own or operate a motor vehicle carries with it certain responsibilities…we propose that the right to own or operate a firearm carries with it the same prior conditions,” wrote Koop.

(Top image: Dr. Vivek Hallegere Murthy prepares to testify before the U.S. Senate Health, Education, Labor, and Pensions (HELP) Committee on Feb. 4, 2014 in support of his nomination for the post of U.S. Surgeon General. Charles Dharapak/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 book The Executioner's Toll, 2010 is due out this summer.

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supremecourt 2013wap150In 2002, the U.S. Supreme Court ruled that executing a mentally disabled (formerly referred to as mentally retarded) person violated the Eighth Amendment's ban against cruel and unusual punishment. In a case known as Atkins v. Virginia, the Supreme Court held that “death is not a suitable punishment for a mentally retarded criminal.” 

The Atkins opinion also contains a loophole that renders it virtually meaningless in many cases—in the Court’s words “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”

Given this leeway to design their own methods for screening inmates, several states executed inmates that almost certainly were mentally disabled. Texas executed Marvin Wilson, a man with a “Full Scale I.Q. of 61″ who “required repeated instruction for doing even simple things, such as cutting the grass” and who “seemed to have a difficult time dressing himself properly.” 

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