Nature’s Call?

       From my archives of more than 20 years is a news story that delivers the message that truth is stranger than fiction. Truth can be strange because people do strange things. But, we are only human, and that applies to every class, race, sect, religion and profession. We all make mistakes. Is there a second message here?

     People with great authority do sometimes abuse it and this has been seen many times in many places, including police departments, both large and small. That’s the other side of the coin. The tragedy is that some of these abuses have resulted in years of punishment for people who could not be proven guilty beyond a reasonable doubt without such police misfeasance. The sadness continues when the abuse by the officer is sometimes justified by saying: ‘He’s just a thug and is probably guilty of something or will be in the future. What’s the harm?’ That is a discussion for another time. Most importantly, these are exceptions to the norm; in fact, the vast majority of police officers do their job in a fair, professional and ethical manner. 

    But with regards to this case, is the strange behavior/ actual or attempted abuse, a combination or neither? You be the judge. 

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Nature’s call or not, trooper guilty

Judge ignores testimony on a hurry-up call – claimed and denied – as an excuse for speeding, and levies fines on the state officer for speeding and fleeing.

 

By Dave Mowery

Eagle/Times (published in the mid 90s)

Nature’s call had no bearing in a case against an off-duty Pittsburgh-based state trooper found guilty of failing to pull over properly after being clocked for speeding.

Trooper Nelson Bryant, 38, a 13-year police veteran, was in Berks County Court Wednesday hoping to wipe out a summary charge that he fled police or purposely failed to pull off the road.

After a 2 ½ hour hearing, Judge Jeffrey K. Sprecher denied the request and fined Bryant $67 for speeding and $200 for fleeing police.

Trooper Michael J. Mescavage, who is now retired but who was assigned to the Hamburg barracks at the time of the incident, testified that he clocked Bryant at 76 mph in a 55 mph zone March 14 on westbound Interstate 78 in Tilden Township.

Mescavage, a trooper for 23 ½ years, said he pursued Bryant for about two miles with the cruiser lights flashing before Bryant pulled over. The retired trooper said Bryant told him he had diarrhea and was not trying to outrun the pursuit car.

Bryant disputed that, claiming he pulled over as soon as Mescavage turned on the overhead light of the cruiser. Bryant also said he never offered a reason for speeding.
He did not contest the speeding citation, but he denied he was driving 120 mph during the chase, as Mescavage claimed. 

After Bryant pulled over, he displayed a state police identification card in his wallet when asked for his license and registration, Mescavage said.

“I told him I didn’t want to see an identification card,” Mescavage said.

He said Bryant explained he had diarrhea and got out of the car and walked into the weeds along the road to relieve himself.

Mescavage said he contacted a supervisor, who indicated he could issue the citations later. He said he returned the next day to search the weeds where he believed he stopped Bryant, but found nothing.

Bryant said his identification card was near his driver’s license in his wallet, and he did not offer it to Mescavage. And, he said, he went into the weeds to urinate…
 

Tough On Crime But Hard On Justice

     This blog includes the attached opinion column, which reminds me of why I wrote my book, Justice or Just This?: A Constitutional Trespass. The Reading Eagle has carried the weekly column of Leonard Pitts Jr. for several years. Exactly two years ago last Sunday, Mr. Pitts wrote an editorial piece that coincidentally underlines the theme of my book. It is my belief that after serving as judge for 22 years, that the other two branches of government have trespassed on our Constitution and have controlled judicial sentencing to the point of substituting their judgment for that of the sentencing judge. This conclusion is reached based on two authoritative factors both created by laws passed by the other two branches (executive and legislative) solely to control judicial sentences:

          1) Mandatory-minimum sentences are imposed by either the legislature or the prosecutor, not the judge. The three branches of government balance and check one another: legislative, executive, including the prosecuting district attorney, and the judiciary. How is it constitutional for another branch to mandate that the judiciary impose a minimum sentence in a case if there is a guilty plea or verdict? 

          2) The Pennsylvania Commission on Sentencing recommends sentences that unfortunately we judges consistently follow 90 percent of the time in all sentences imposed in Pennsylvania. A sentencing commission concept is at best a good idea going terribly wrong. They have existed in every state and in the federal government. 

     I continually inquire as to who does the sentencing in the Commonwealth. Pennsylvania is not alone, as Pitts points out. He cites other examples of injustice from different parts of the country. Please keep in mind that the term ‘prison overcrowding’ is a recent phenomenon that began immediately after the Pennsylvania Commission of Sentencing became law in 1982. Within two years, Pennsylvania began building more new prisons (16 in the next 14 years) than the eleven built during the entire 160 years before 1982!

 

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Nation Got Tough on Crime and Hard on Justice
By Leonard Pitts Jr. (published 5-25-12)

 

 The people got sick of it, all those criminals being coddled by all those bleeding heart liberal judges with all their soft-headed concern for rights and rehabilitation. And a wave swept this country in the Reagan years, a wave ridden by pundits and politicians seeking power, a wave that said, no mercy, no more. From now on, judges would be severely limited in the sentences they could hand down for certain crimes, required to impose certain punishments whether or not they thought those punishments fit the circumstances at hand. From now on, there was a new mantra in American justice. From now on, we would be tough on crime. 

We got tough on Jerry Dewayne Williams, a small-time criminal who stole a slice of pizza from a group of children. He got 25 years. We got tough on Duane Silva, a guy with an IQ of 71 who stole a VCR and a coin collection. He got 30 to life.

We got tough on Dixie Shanahan, who shot and killed the husband who had beaten her for three days straight, punching her in the face, pounding her in the stomach, dragging her by the hair, because she refused to have an abortion. She got 50 years. We got tough on Jeff Berryhill, who got drunk one night, kicked in an apartment door and punched a guy who was inside with Berryhill’s girlfriend. He got 25 years. 

Now, we have gotten tough on Melissa Alexander. She is a Jacksonville, Fla., woman who said her husband flew into a violent rage and tried to strangle her when he found text messages to her first husband. She fled to her car, but in her haste, forgot her keys. She took a pistol from the garage and returned to the house for them. When her husband came after her again, she fired into the ceiling. The warning shot made him back off. No one was hurt.

Like Shanahan before her, Alexander was offered a plea bargain. Like Shanahan, she declined, reasoning that no one would convict her under the circumstances. Like Shanahan, she was wrong. 

Alexander got 20 years for aggravated assault. And like Shanahan, like Berryhill, Williams, Silva and Lord only knows how many others, she received that outlandish sentence not because the judge had a heart like Simon Legree’s, but because the judge was constrained by mandatory-minimum sentencing guidelines that tied his hands, allowing no leeway for consideration, compassion, context or common sense. 

Judge Charles Smith, who sent Shanahan away, put it best. The sentence he was required to impose may be legal, but it is wrong. 

The Eighth Amendment prohibits cruel and unusual punishment. In a nation where we execute people based on nothing but eyewitness testimony, it is hard to imagine what meaning that prohibition holds. But assuming it means anything, surely it means you can’t draw a 20-year sentence for shooting a ceiling. 

In restricting judges from judging, we have instituted a one-size-fits-all version of justice that bears little resemblance to the real thing. It proceeds from the same misguided thinking that produced the absurd zero-tolerance school drug policies that routinely get children suspended for bringing aspirin to class. There is this silly idea that by requiring robotic adherence to inflexible rules we will produce desirable results.

It should be obvious how wrong and costly that reasoning was and how urgently we need to roll back the wave that swept over us. It is understandable that the nation wanted to get tough on crime. But we have been rather hard on justice, too.

Election to Bench-How It Works In Pennsylvania

     Twenty-five years ago, I got to the bench with the support and hard work of many people. A campaign for the public office is an expensive experience, especially when it covers all of Berks County. I recently found this letter from "Big Bob," the campaign's committee chairman, to other members. It was written in the summer of 1991 to announce a picnic to celebrate our victory. Bob writes well and I wanted to share his wit and wisdom with readers. Reading this again brought many memories and a smile to my face. Enjoy.

....

Review of

"Sprecher for Judge" Campaign

A one-act dramedy from the Chairman

They say it's not over til the fat lady sings. Sometimes, it seems. it only takes one act to get her on stage.

As the curtain rose we found Jeff Sprecher at center stage, playing the lead as a qualified candidate determined to win his party's nomination for Judge of the Court of Common Pleas of Berks County.

Ever as his side was his wife Jane, whose supporting role called for her to inspire and encourage (nag) her husband into traversing the entire stage many times, even if it meant wearing three hats, appearing two places at once and being one tired dude.

From the first plate of spaghetti to the last "grip and grin," this production called from invocation, flexibility and hard work.

More often than not, the challenge was not in memorizing their lines (the lead wrote them himself based on a true story), the challenge was in saying the same thing a hundred times and making it sound fresh each time. After all, how many ways are there to say "I earned my bachelor's, master's and law degrees while working full time and supporting my family?"

But repeat his lines he did. From granges to bingo's to meetings with politicos, no one was spared. If you'd listen (and even if you wouldn't), he'd talk. And if you were lucky, you might even find a pencil coming your way.

Behind the scenes worked a crew of volunteers dedicated to bringing down the house. Through not a cast of thousands, their work was reminiscent of one. The chorus sang the praises of Sprecher for Judge to everyone they met. Scenery was impeccable (those confounded signs were everywhere), with impressive billboards featuring that famous Polident (or is that Poligrip?) smile. Whether by post, personal contact or door-to-door, handbills made their way into homes of city, town and country voters everywhere.

All in all, a finely orchestrated production

As the lights dimmed on the first act, the cast and crew began setting the stage for the act to follow as it turned out, though, a full scale production would not be necessary, since the applause and standing ovation by the audience indicated that they'd seen enough: the play was a hit, Sprecher was a winner and everyone went home satisfied...

Thank you and congratulations to all!

Author's Note

     The primary election is held to determine the victor of the party. To reduce the political impact in a judicial election, a candidate for Judge is permitted to circulate nominating petitions to be put on both the Republican and Democratic tickets. This is called cross-filing and only judges and school board candidate can do this. It gives both parties the opportunity to choose which candidate will lead its ballot regardless of the candidate's political registration.

     I am proud to say that I was one of two candidates on both the Republican and Democratic ticket to finish in one of the top two positions on both ballots. The election of two judges was finished in the primary and the general election ballot became only a technicality.

     As we celebrate the primary election of May 20, 2014, please keep in mind how it works for judges. Judges are only on the ballot for election in odd number years. Thus there were no judicial elections in the 2014 primary. Hopefully you exercised your greatest freedom-that of choice- in this primary election

 

The Good, the Bad, and the Ugly...

              The war on drugs was waged and fought with good intentions. But after 43 years of battling, we are compelled to evaluate its results and determine if it should continue. President Nixon declared a war on drugs in 1971 that is still waged on an increased level today, however that does not mean that this is best for society. The good is also found in the intent to arrest those at the top of the food chain in the illegal drug market to stop distribution.

Evaluators of this war must also study the epidemic of prison construction that has plagued our nation during those four decades. They will also have to consider the thousands of lives ruined by the incarceration of the mother and/or father, and how much the inmate, their family and society continue to suffer just like civilians in any other city where war was waged. That is the bad part, and therefore there are many negative results. The big fish was never reeled in. The flow, distribution and use of illegal drugs did not diminish. Even after every resource was utilized, the war on drugs stands as a big failure.

In summary, what constitutes the good? Our good intentions do but that’s about it. The bad is the irreparable harm to millions of citizens caught in the war zone. They were locked up for long periods of time, mothers and fathers were taken from their families and taken to prisons located hundreds of miles away, placing more stress on the family unit. The nation’s cities are in shambles from the war on drugs, but the suburbs and countryside remain relatively intact. African Americans and Hispanic or Latinos are sent to jail more than whites, even though use and availability of illegal drugs is similar for all three races. So, how about the ugly?

The ugly consists of the violence city residents regularly witness and fear: Drive-by shootings, murders, gang-related retaliation, the deaths of innocent bystanders, including children and the stress of living in a community with the knowledge that almost everyone owns and carries a gun. It’s a place where increased arrests, along with prosecutions and punishments, are suffered by the residents within city limits. Stop-and-frisk law enforcement tactics and aggravated punishments for distributing drugs in the city are at the forefront of this argument. The fact that nearly every illegal drug transaction in a city is within 1,000 feet of a school zone results in the majority of offenders being caught in the web of more lengthy mandatory minimum sentencing. That does not exist in the suburbs or rural America. Neither do stop and frisk law enforcement tactics.

The ugly can also be represented in the ineffective law enforcement programs. Everyone wants the drug problems to stop, but the kingpins and top drug distributors are not arrested for fear of injury or death if someone testifies against them in court. The situation has come to the point where a potential informant will choose long jail sentences that are often followed by deportation over a lighter sentence earned by ratting on his/her supplier. I have witnessed this many times. However by snitching,  on the smaller the informant may provide enough that the mandatory minimum sentence will be withdrawn by the district attorney. That is an option for a desperate defendant, which regularly happens because there is a reward given to the snitch defendant. In fact, there is a standard jury instruction to be given to the jury when a jailhouse informant points the finger against the defendant. There are so many snitches that websites using the slogan “snitches get stitches” have been created to scare the informant who turns states evidence. Their pictures and names are posted.

Mexico is the worst example of this. More than 50,000 people have been executed for snitching and being part of a rival gang. They are often tortured first. Stories of beheadings and public displays of dead bodies serve as messages to others who may cooperate with authorities. This can’t happen in the United States of America.

Or can it? In March 2014, Sen. Bob Casey Jr. asked U.S. Attorney General Eric Holder to allocate more resources to help Philadelphia’s district attorney combat witness intimidation in Philadelphia. As of March 14, 188 witness intimidation charges were filed in Philadelphia. That is 60 more than last year. According to the Associated Press, Philadelphia’s district attorney reported that since 2010, when records for intimidation began to be counted, that “more than 3,700 cases have been filed in Philadelphia, ranging from execution-style slayings to court room threats.” (Reading Eagle, March 2014)

We can conclude from our evaluation of the war on drugs that it has been as effective as prohibition;

In other words, the war has failed and only organized crime has prevailed. There is a saying that ‘the road to hell is paved with good intentions.’ That saying is applicable to the intention of identifying and prosecuting the top drug offenders and scaring the others away with tough punishment laws. But little public benefit has been accomplished, while a large pile of bad and ugly desecrates our cities, the justice system and prisons; Many logical facts leads one to conclude it just lies these stinking to high heavens.  You be the judge.

What Has Massive Enforcement Of Simple Possession Of Marijuana Laws Accomplished?: Part II

    Earlier this year, I wrote that the war on drugs has had an unequivocally detrimental effect on our cities. I mentioned stop-and-frisk police tactics and how they are applied to people of color in the cities in a discriminatory manner. To my knowledge, no such policing tactic exist is in the suburbs-anywhere.

     In Part I last week, I included The New York Times editorial published in June 2012, which highlighted this imbalance of enforcement of drug laws in the cities but nowhere else. Logically, one might hypothesize this tactic is used to arrest hardened, violent criminals. But that could not be farther from the truth. In New York State, possession of a small amount of marijuana was reduced in seriousness to simply a violation that is similar to a speeding or traffic ticket. In fact, for the last 35 years, it has been downgraded to only a violation of the law. Yet in New York City in 1990 - 13 years after the penalty reduction went into law. This law enforcement crackdown is not found anywhere else in the suburbs of New York State. This is why it is a direct attack on the inner-city population, as is the stop-and-frisk program.

    In addition to my message that we have discriminatorily declared war on our cities, this article also communicates that it is acceptable for police to stop and frisk 700,000 citizens and arrest 50,000 for possession of a small amount of marijuana. But despite this extensive and intensive drug enforcement tactic, America has been made unable to declare victory on its declared war on drugs. We've lost the war because it was always unwinnable. This is after increasing arrests for dangerous drug in the drug "crisis' - from 1,000 in 1990 to 50,000 in 2011.

     The question is If that's the result of our war on drugs scorecard with regards to an "introductory" drug like marijuana, then how successful has the war on drugs been with substances like heroin, methamphetamine or prescription pain medications or alcohol or...?

     This increase from 1,000 to 50,000 arrests for marijuana possession during a 21-year span raises many more questions, not the least of which are: what has been accomplished, what was the original intent of the war on drugs, an finally, what was the point of it all? And didn't anyone in law enforcement or public office in New York City analyze this illogical statistic?? Have they done so now? Will continue happen every year?

 

 

Our War On Drugs Have Failed

      Among the many understood facts that led only to this conclusion is the astronomical rise in costs in the United States to incarcerate 12 times the number of inmates in 40 years from when president Nixon declared a war on drugs in 1971. The Reading Eagle's front-page report on March 9, 2014 titled 'The Heartache of Heroin' quotes the special agent in charges of the state's Bureau of Narcotics Investigation and Drug Control that "heroin use has reached the entire state [of Pennsylvania]", It used to be found only in "pockets" throughout the state. The gist of the article revealed that in three years the number of deaths from heroin use increased in Pennsylvania by 149% from 332 in 2000 to 827 in 2012. On page 54 of my book Justice or Just This?: A Constitutional Trespass, published in late 2011, I posed the question: Is this the best policy to declare war on drugs when alcohol and tobacco use are far more damaging to society? In fact, legal prescription drugs send more people to the emergency room than the illegal drugs we are spending billions to fight!

     How was America benefited from its current 43 year old war on drugs? Equally important is the question of how has our country suffered because of it? Drug use is the same regardless of race, yet three times more blacks are in jail for it than whites. It fact, we can summarize in general, that disproportionately more blacks and Hispanics are in prison, while fewer whites are behind bars for other crimes as well.


     Why is that? Is it because the authorities that make and enforce the criminal drug laws prioritize arrests in cities but not in the suburbs? We do know that when blacks fled the south for the north in the 1960s, many relocated in the ghettos of the cities. Does this statistic have anything to do with why we are fighting the drug was in our cities?

 

Conclusion

 

     Are we discriminatorily enforcing the drug laws more so in our cities than in the country or the suburbs, which is largely made up of white people? The numbers indicate that the answer is "yes." Stop and frisk law enforcement demonstrates this in every city in America.

    In March this year, we learned about Newark, N.J. which has an African American population of 52%. The op-ed piece in the N.J. Star Ledger states that " Newark cops appear to be targeting mostly black men in searched that often lead nowhere." And Newark police are worse than New York City police when it comes to stop and frisk. In 2011, New York's rare was 89 police stop 1,000, while Newark arrested 91 per 1,000 citizens. Seventy-five percent of those stopped and frisked in Newark were black.


    I ask again, has anyone in the government or law enforcement in Newark or New York City, or in the national spectrum for that matter, seen and honestly analyzed these numbers?




What Has Massive Enforcement Of Simple Possession Of Marijuana Laws Accomplished?: Part I

   
     From recent archives of op-ed pieces published in the New York Times is the editorial from June 5, 2012, titled 'No Crime, real punishment.' I invite you to read it and evaluate what good had been accomplished with this particular front of this country's 40-year war on drugs. Action has a reaction and that the reaction may not always be favorable. Expert testimony is not necessary to help form thoughts and opinions on this matter. Everyday Americans have been witness to the four decade war on drugs and its carious components and can testify to its impact. Increased drug law enforcement has cause record incarceration, which removes more citizens from their homes and drains state and federal prison budgets. Please apply your common sense and everyday knowledge in evaluating the drug wars history in New York City and then contemplate how common this law enforcement tactic has been particularly in other cities in America. 

    Most are aware that the concept of simple possession of a small amount of marijuana as a crime has moved on the punishment scale from a serious crime toward decriminalization or at least to a "softer" penalty throughout the United States in the last 40 years. Some states define its jurisdictional level as less than 30 grams of the substance. As reported in 'No crime, real punishment,' the state of New York set its limit at 25 grams or less, and of course, there are states where marijuana possession is now legal. Keep those facts in context and then answer the question: does the arrest of 50,000 people for small amounts of marijuana in New York City in 2011 make any sense? Are discriminatory enforcing the drug laws more in our cities than in our cities than in the suburbs? Are black and Latino youths the resultant target, but not young white people? In 2011, NYC's stop-and frisk program netted 700,000 cases. Eighty-five percent of those arrested were either black or Latino.

 

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No Crime, Real Punishment, N.Y. Times. 6-5-12

Gov. Cuomo's proposal to curb low-level marijuana arrests is a start (published 6-5-12), New York Times' Op-ed section

New York State decriminalized the possession of small amounts of marijuana in the late 1970s. But last year [2011], in New York City, 50,000 people- the majority of them, young African-American or Hispanic men - were still arrested for possession because of overzealous policing and a weakness in the law.

Gov. Andrew Cuomo has proposed to decriminalize the possession of small amounts of marijuana in public view - a sensible step that should decrease the number of those arrests and lessen the damage to those young lives. Now Mayor Micheal Bloomberg, who has endorsed the governor's proposal, must rein the city's runaway stop-and-frisk program that is also disproportionately stopping young black and Hispanic New Yorkers.

In 1977, hoping to relieve court congestion and allow prosecutors to focus on more serious crime, the State Legislature made possession of 25 grams or less of marijuana a violation - something akin to a traffic ticket- punishable by a $100 fine for the first offense. Possession in public view was a misdemeanor punishable by up to three months in a jail an a $500 fine.

Marijuana arrests initially declined, but they exploded from less than 1,000 in 1990 to 50,000 last year. Of the nearly 12,000 16 to 19 year olds arrested in 2011, nearly half had never been arrested before; 94 had no prior convictions.

Public defenders have repeatedly charged that the police are entrapping young people, stopping them for no cause and then requiring them to empty their pockets to bring their marijuana into public view. And former police officers now speak openly of being pressured to drive their arrest rates.

Last fall, Commissioner Raymond Kelly of the New York Police Department tacitly admitted there was a problem, instructing officers to arrest people only if they revealed the marijuana on their own. According to city data, the number of arrests declined nearly 25 percent over the next eight months. While that is encouraging, without a change in the law, the department could fall back into its old ways.

The Legislature should take up Mr. Cuomo's proposal and pass it swiftly. People with minor convictions can be denied public housing and federal student aid and written off by prospective employers. The numbers for the stop-and-frisk program are even more disturbing- 700,000 last year, about 85 percent of those involving Blacks and Hispanics, who make up about half the city's population.

Decriminalizing public possession of small amounts of marijuana will address only part of that problem. For that sake of fairness and public safety, the stop-and-frisk program, which breeds fear and distrust of the police in minority neighborhoods must be reformed.

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    Next week in Part II, the war on simple possession and where it selectively enforced throughout the country will be discussed. Stop-and-frisk tactics appear to be non-existent in the suburbs? Isn't this discrimination?

A Mandatory Minimum Sentence from Louisiana – not what the judge wanted to do, but was forced to impose

Is This Justice?

             Each week, Pennsylvania lawyers and judges receive the judicial decisions from the appellate courts. Before I continue, allow me to provide some background information. Judges at the trial level are not called the appellate court. The trial court in Pennsylvania is the court of common pleas. It is the only court where a record is maintained because we judges, in non-jury trials, or jurors in jury trials, are the finders of facts in each case. In other words, either a jury or a judge tries the case and renders a verdict. All disputes are litigated in the trial courts. This means that all evidence and arguments are presented in each and every trial. What do I mean by stating that we are the only court of record in Pennsylvania? The trial court records testimony, motions, exhibits and rulings on evidence all of which is reviewed by the appellate courts when an appeal is filed.

            Because appellate judges decide the appeals, we must continually learn what the recent law is by promptly reviewing these rulings. The appellate courts interpret the law and tell judges when the law changes.

            In addition to the decisions of the Pennsylvania Appellate Courts, judges also receive a listing of some appellate court cases decided outside the state. It is from this list that I will summarize a case that was decided in Louisiana last year that demonstrates yet again how rigid and unfair mandatory minimum sentences are. The defendant had prior convictions for drug sales and a robbery. Under the Louisiana state habitual offender law, the judge was mandated to sentence him to a term of life without parole. His crime that earned him this punishment: “selling 0.69 grams of marijuana to an undercover police officer, who solicited the sale while the defendant was in his own home minding his own business,” wrote a dissenting judge. The same judge described the case as one involving an “honorably discharged American veteran of Desert Storm, suffering from drug addiction, and unable to get medical help from the U.S. Veteran’s Administration.” State of Louisiana  v. Harris 13-133 (LACt. App, 3^rd Circ., Dec. 11, 2013)

            Desert Storm occurred in 1991. This man is probably in his early 40s, so life for him may be 30 to 40 more years. Is this fair? Who should be sentencing this man, the legislature or a judge?

            Thirty to forty years converts to a loss of well over $1 million to house, feed, and treat this inmate. His medical expenses will increase astronomically as he reaches old age, which in penitentiary prison time is 50 years old and over. Shouldn’t the judge have discretion to impose what is merited under the circumstances rather than just being mandated to impose what he may very well believe is not just?