CREATORS: Mangione Ruling Spurs Re-Examination of Exclusionary Rule

Matthew T. Mangino
CREATORS
May 19, 2026

Why would material evidence in the possession of a murder suspect be inadmissible at trial?

Simple — the exclusionary rule. The recent decision by Judge Gregory Carro of the New York Supreme Court in the Luigi Mangione prosecution has spurred interest in what the exclusionary rule does and if it is still needed.

The rule was first established in federal court in 1914. The U.S. Supreme Court ruled that federal law enforcement officers could not use evidence obtained in violation of a suspect's Fourth Amendment rights in federal criminal trials. Prior to 1914, law enforcement officers, although compelled by the U.S. Constitution not to violate an accused's rights, could nonetheless violate those rights with impunity.

The state version of the rule didn't come about for another 47 years. I wrote about the exclusionary rule for Creators in 2025, and it is worth reexamining. In 1957, Cleveland, Ohio, police officers went to the home of Dollree Mapp looking for a suspect in a criminal investigation. She refused to let the police in without a warrant.

The police left, and when they returned, they were armed with a "fake" warrant. Chicanery took the place of real police work. Instead of going to a judge to get a warrant, the police drew up their own. After entering Mapp's home, police conducted a search and confiscated obscene material, resulting in Mapp's arrest.

As a result of the police misconduct, the U.S. Supreme Court provided a remedy — the exclusion of illegally obtained evidence from admission in a criminal prosecution — resulting in a dismissal of the charges.

Many Supreme Court observers suggested that the Mapp decision would be detrimental to law enforcement. The courts would be inundated with challenges and the guilty would go free in droves. That never happened.

What the exclusionary rule accomplished was a higher standard of police training and, in turn, police work. Ironically, the late Justice Antonin Scalia cited "increasing professionalism of police" as a reason for the exclusionary rule's obsolescence.

Scalia's argument didn't make sense then and doesn't make sense today. Without the exclusionary rule, an individual's constitutional rights would be ignored. Law enforcement training would turn on a dime.

For now, the exclusionary rule is still around. Mangione's case is illustrative of why it is still needed. There was a nationwide manhunt for Mangione after the brazen assassination of insurance executive Brian Thompson on a New York City sidewalk. Mangione was recognized by a McDonald's Restaurant employee in Altoona, Pa.

The police were called and Mangione was detained after they arrived. Mangione had a backpack that was moved to a table approximately nine feet away. He was patted down for officer safety, both of which are appropriate under the Fourth Amendment.

However, the police went further and searched his backpack without obtaining a search warrant. They said they needed to make sure there was not a bomb in the bag. Prosecutors argued that the circumstances created an exception to the rule requiring a warrant. The court didn't buy it. Judge Carro ruled that the search of Mangione's bag at McDonald's violated his constitutional rights.

As a result, by way of the exclusionary rule, evidence including a gun magazine, a cellphone, a passport, a wallet and a computer chip, all found in the backpack, is not admissible at trial.

However, a second search of the bag at the police station revealed a gun linked to the crime and Mangione's manifesto attacking the insurance industry. The second search of the same bag without a search warrant is constitutionally permissible. The police may conduct a warrantless inventory search to record the suspect's belongings. As a result, the gun and manifesto are admissible at trial.

The exclusionary rule promotes integrity in the criminal justice system — even strong evidence of guilt, in a high-profile killing, cannot be used if police violate the Constitution to get that evidence.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Texas reaches dubious milestone--the state's 600th execution since 1982

 The 12th Execution of 2026

A man who experts for both prosecutors and defense attorneys had said was intellectually disabled became the 600th person executed in Texas since 1982, put to death on May 14, 2026 for the killing of a 77-year-old retired college professor, according to The Associated Press.

Edward Busby Jr. was pronounced dead at 8:11 p.m. following a lethal injection at the state penitentiary in Huntsville, hours after the U.S. Supreme Court lifted a stay over his disabilities claims. The execution capped a series of last-minute legal efforts by Busby’s attorneys seeking to spare his life.

Busby was condemned for the suffocation death of Laura Lee Crane, a retired professor from Texas Christian University. Prosecutors said she was abducted from a grocery store parking lot in January 2004 and left to suffocate in the trunk of her car with duct tape wrapped heavily around her face, covering her mouth and nose.

The execution was the 600th in Texas since it resumed carrying out the death penalty in 1982. Busby also was the fourth person executed this year in Texas and the 12th nationwide. Earlier Thursday, Oklahoma executed Raymond Johnson for killing his ex-girlfriend and her 7-month-old daughter nearly 20 years ago.

When asked by the warden if he had a final statement, Busby repeatedly apologized and asked for forgiveness.

“I am so sorry for what happened,” he said while strapped to the death chamber gurney. “Miss Crane was a lovely woman. I never meant anything bad to happen to her.” He said he wished he could “take it all back” and added he had “no right to get in that car.”

“I’ll take the blame if that helps.”

He said he had surrendered his life to God and urged a sister, who was praying and watching through a window a short distance away, to find a church and “pick up your cross.”

“I’m here because this is the will of God,” he said before the injection got underway.

As the lethal dose of the sedative pentobarbital began flowing, he took a sharp breath, closed his eyes and gasped. Then he made snoring sounds that got progressively quieter. Within 40 seconds, all movement and sounds ceased. He was pronounced dead 38 minutes afterward.

Busby’s execution had been in doubt after the 5th U.S. Circuit Court of Appeals last week issued a stay of execution to further review his claims of intellectual disability. But the Supreme Court overturned the stay Thursday at the request of the Texas Attorney General’s Office. The attorney general’s office had argued that similar appeals were previously rejected and were “meritless” and based on “conflicting evidence.”

Busby’s lawyers quickly sought another stay but it was denied by a lower court.

The Supreme Court in 2002 had barred the execution of intellectually disabled people. But it has given states some discretion to decide how to determine such disabilities.

Busby’s attorneys had argued against putting him to death because a defense expert as well as one hired by the Tarrant County District Attorney’s Office, which prosecuted the case, both found he was intellectually disabled.

The district attorney’s office had previously recommended Busby’s sentence be reduced to life in prison. But the trial judge in Busby’s case disagreed with the findings of intellectual disability and in 2023 upheld the death sentence.

In a statement Wednesday, the district attorney’s office said it requested Thursday’s execution date because it believed that under current law Busy was not intellectually disabled.

Two other prior execution dates for Busby had been delayed by courts.

Prosecutors have said Busby and his co-defendant, Kathleen Latimer, abducted Crane in her car from a Fort Worth grocery store parking lot and later put in her vehicle’s trunk as they drove around. Prosecutors said she died in the trunk after suffocating from having 23 feet (7 meters) of duct tape wrapped over her entire face.

Busby was subsequently arrested in Oklahoma City driving Crane’s car and led authorities to her body in Oklahoma just north of the state line with Texas.

Latimer is in prison serving a life sentence for murder.

Bryan Mark Rigg, an author and historian who represented the Crane family as a witness to the execution, said they “neither support or oppose the death penalty. However, they are united in their respect for the rule of law.”

Rigg said as a child he was a student of Crane, who for decades helped children overcome learning disabilities and “was discarded in a field like a piece of trash.” He said the execution was not about vengeance but “accountability under the law and about remembering the life of an extraordinary educator.”

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Firing squads make a comeback, stripping away the 'veneer of medical theater'

 Maurice Chammah writing for The Marshall Project: 

There is no tidy way to kill someone. But for the last century, Americans have searched for a way to carry out the death penalty that minimizes suffering while lessening trauma for executioners and witnesses. Those efforts have gone so poorly that we’re returning to a visceral execution method from the past.

Last month, the Justice Department encouraged federal prison officials to consider execution by firing squad amid a nationwide struggle to secure lethal injection drugs. South Carolina has already used firing squads three times recently, placing hoods over the prisoner’s head and firing rifles at a red bull’s-eye placed over the heart. Four other states have authorized the method, and Idaho is renovating its execution chamber to accommodate firing squads.

This article was published in partnership with The New York Times.

There is no question that killing a person in this manner is brutal. Witnesses have described the crack of rifles and the eerie silence as blood spills from the condemned person’s chest. It is a testament to the brutality of our execution system that firing squads may also be more effective and reliable than lethal injection, which is the most widely used execution method. Dr. James Williams, an emergency room physician and a firearms expert who has testified about firing squad executions in courtrooms across the country, told me last year that “there is a lot of evidence that the near-instant loss of blood pressure means no blood gets to the brainstem, and there is a rapid loss of consciousness.”

Williams is largely opposed to capital punishment, and he believes in minimizing suffering for executions that do occur. He told me an even faster method would be to fire a bullet into the brainstem, leading to death in milliseconds. As horrifying as that sounds, it shows how much we’ve shrouded the inevitable violence of the death penalty with syringes and barbiturates. Autopsies have indicated that many prisoners who looked peaceful as they were dying were actually paralyzed and may have felt as if they were drowning.

Firing squad executions strip away the veneer of medical theater.

Some Americans point to the horrific nature of the crimes being punished in death penalty cases and say: The more violent the execution, the better. But support for capital punishment, which is legal in 27 states, has been declining for decades. Polling shows that just over half of Americans support it, down from 80 percent in 1994. There are many reasons for this drop, among them high-profile botched executions. A wave of bloody spectacles, in multiple states and at the federal level, would be a clearer test of how deep support for the death penalty actually runs.

Before the early 20th century, the United States did not have much trouble accepting the gruesome sights, sounds and smells of executions. At the country’s founding, the violence of firing squads was part of the point; deserters were executed this way during the Revolutionary War and Civil War to deter other soldiers from absconding. In 1936, around 20,000 people attended the country’s last public hanging, an event that newspapers later decried as a “carnival of sadism.”

Firing squads and hangings mostly disappeared in the early 20th century, as public officials moved executions behind closed doors. There was a concern that public executions looked too much like the lynchings they were supposed to supplant.

Firing squad and gas executions resurface in U.S.

While reporting for a book on the death penalty a few years ago, I learned that we turned away from more brutal methods like firing squads and hangings because of the country’s growing uneasiness about the death penalty itself.

Over time, lawmakers gave voice to the public’s collective queasiness as they tried to move away from lurid spectacles. “We’ve gone from stoning to crucifixion, to quartering, to burning people at the stake, to hanging,” a Texas state legislator, Ben Z. Grant, told his colleagues in a 1977 hearing. He worried that the latest method, the electric chair, had “become a circus sideshow.” Prison officials had to place masks on prisoners to spare witnesses from having to see their eyes pop out.

Grant proposed that Texas move to lethal injection — which had proven effective in veterinary medicine — as a more modern and humane method, and many states followed suit. But the effort to improve executions eventually had the opposite effect: In recent years, a significant number of people have convulsed on the death chamber gurney. (Firing squad executions are less likely to be botched, although last year South Carolina executioners missed a condemned man’s heart, according to a study of his autopsy.)

These botched lethal injections are an indirect consequence of wariness from the medical industry, as some doctors and nurses, citing ethical concerns, refuse to play a role in setting intravenous lines or administering drugs, leaving those with less training to do their best. Most drug companies have refused to let their products play a role in killing people, which has forced prison officials to turn to less reputable manufacturers and use more experimental drug cocktails.

During this period, some states abolished the death penalty and a few governors paused executions, often citing issues with lethal injection protocols. Many leaders also looked to more transparently harsh methods. Alabama started pumping nitrogen gas through face masks. Arizona refurbished a chamber to fill with cyanide gas, a method so similar to the gas chambers in Auschwitz that a Jewish community group sued the state, saying they were being asked “to subsidize and relive unnecessarily the same form of cruelty used in World War II atrocities.”

The firing squad was available all this time. The most logical explanations for avoiding it have to do with the upsetting visuals, the feeling that it’s old-fashioned and the possible effect on executioners. But people who participate in lethal injections routinely suffer psychologically in the long term. In 2022, Chiara Eisner at NPR interviewed over two dozen people who were involved in executions. Many were so affected by the experience that they suffered insomnia, anxiety and sui­ci­dal thoughts.

President Donald Trump oversaw 13 executions in his first term, all carried out by lethal injection. President Joe Biden commuted the death sentences of most of the people on federal death row, so it’s not clear whether Trump will have anyone to execute this term.

But someday federal prison officials may train rifles on someone like Dylann Roof or Robert Bowers, both of whom committed high-profile mass shootings at places of worship. Americans will then finally have to decide what we can tolerate, after decades in which we have been able to pretend that we can kill people without a cost — to our executioners and to our own sense of ourselves.

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After two trips to the Supreme Court former death row inmate Richard Glossip is out on bond

Oklahoma District Judge Natalie Mai ordered former death row inmate Richard Glossip to be released from prison while awaiting a retrial, after 29 years behind bars. During these 29 years, Glossip famously faced several execution dates and ate his “last meal” three times, reported Juristnews.

Mai set the bail at $500,000, with release contingent upon Glossip complying with certain conditions, such as wearing an electronic monitoring device, observing a curfew, remaining within the state of Oklahoma, and refraining from speaking to any witnesses.

The order cited a letter written by the attorney general in April 2023 to the Oklahoma Pardon and Parole Board, which stated that the record does not support that Glossip is guilty of first-degree murder beyond a reasonable doubt. Under the Oklahoma Constitution, bail must be granted unless there is clear and convincing evidence of guilt, leading the court to conclude that it could not reasonably deny bail.

The case stems from a murder-for-hire plot targeting Glossip’s former boss, Barry Van Treese, in 1997. Purported co-conspirator Justin Sneed confessed at trial to beating Van Treese to death, and claimed Glossip offered him money to do so. Glossip maintained his innocence throughout his defense, denying that he had any involvement with the murder.

While Glossip was imprisoned, his case faced a series of legal challenges surrounding his right to a fair trial, eventually culminating in the February 2025 decision by the US Supreme Court to overturn his conviction and order a new trial. The court’s 5-3 ruling was largely based on the prosecution’s failure to consider evidence that Sneed’s testimony was false.

Following the decision, the prosecution indicated its intent to retry Glossip on the existing first-degree murder charges, but not to pursue the death penalty.

Glossip’s attorney, Don Knight, stated that he is grateful that Judge Mai granted bond:

In doing so, she rejected the State’s claim that there is a strong case for guilt. For the first time in 29 years of being incarcerated for a crime he did not commit, during which he faced 9 execution dates and at 3 last meals, Mr. Glossip now has the chance to taste freedom while his defense team continues to pursue justice on his behalf against a system that the United States Supreme Court has found to be guilty of serious misconduct by state prosecutors.

In the bond order, Mai stated that “the Court hopes that a new trial, free of error, will provide all interested parties, and the citizens of Oklahoma, the closure they deserve.”

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Politics or training, why the increase in questionable prosecutions?

Excerpts from Shaun Ossei-Owusu’s, professor at the University of Pennsylvania Carey Law School, article at Bloomberg Law:

In the past year, several high-profile federal investigations and prosecutions under Attorney General Pam Bondi’s Justice Department have dissolved as soon as they came under basic scrutiny. Those failures reportedly contributed to her removal.

As a law professor who teaches criminal law and legal ethics, I often hear a version of the same question from students and non-lawyer friends: “How could anyone prosecute that case?”

Commentators often note political motivations, but those explanations are incomplete. The confusion underlying that question points to a deeper feature of lawyering which extends beyond any particular administration and is easy to miss when the focus stays on politics.

At its core, legal training teaches lawyers to take a set of facts and construct a legally plausible argument, even when the underlying claim may be weak. Beginning in law school, students are given hypotheticals—sometimes far-fetched—and asked to frame legal claims in ways that make a weak position seem plausible. Over time, this becomes a professional habit.

The ability to stretch an argument serves an important function in the adversarial system. It ensures that competing positions are tested and that even unpopular views can be heard. But as I note in my recent book on lawyers and inequality, that elasticity has a less comfortable implication: It can stretch the boundaries of what prosecutors pursue, even when the case itself is thin.

Of course, individual resistance matters, as in the cases where prosecutors in both Trump terms were reassigned, stepped down, or were fired rather than having to push forward a case they didn’t believe served justice. Still, it doesn’t eliminate the underlying dynamic. As long as a case can be framed in legal terms and meets the minimal burden required by the grand jury, often someone within the system can be found to carry it forward.

And this is to say nothing of the less visible parts of the system. Every day, prosecutors across the country bring charges that raise similar questions about the strength of the case and basic fairness. The system allows government lawyers to turn contested facts into legal claims in ways that can produce real inequality.

This is especially true in the more common criminal prosecutions where defendants are not high-profile targets. They are not like Comey, James, Powell, or Cook—all of whom are well-connected, white-collar professionals with advanced degrees and the resources to defend themselves in court. In everyday cases, judges and jurors often aren’t viewing these low-profile defendants with the same skepticism brought to overtly political cases, making weak cases more likely to succeed. The media and the public aren’t closely scrutinizing these cases, but they reflect the same dynamic.

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DOJ sues DC Bar Association over ethics enforcement alleging 'blatantly partisan arm of leftist cause'

The Justice Department filed a lawsuit against the District of Columbia Bar over its efforts to discipline Trump administration lawyers, escalating the department’s feud with legal ethics authorities, reported The New York Times.

The lawsuit defends Jeffrey Clark, a government lawyer in the first Trump administration who sought to undo the results of the 2020 presidential race, and Ed Martin, a current senior Justice Department official. The suit was filed by Todd Blanche, the acting attorney general, and Stanley E. Woodward Jr., the No. 3 official at the Justice Department.

In accompanying statements, Mr. Blanche accused the D.C. Bar of acting as a “blatantly partisan arm of leftist causes.” Mr. Woodward said that the bar would “no longer be permitted to probe sensitive executive branch deliberations,” adding that lawyers in the federal government must “be free to share their candid legal advice with their bosses and colleagues.”

That position — that lawyers at the Justice Department or other federal agencies are above scrutiny by legal ethics officials — is likely to be challenged by a host of legal profession entities.

The lawsuit centers on the long-running battle over the D.C. Bar’s effort to disbar Mr. Clark, an environmental lawyer who had no formal role in investigating elections, over his push to promote Mr. Trump’s baseless assertions of fraud in Joseph R. Biden Jr.’s electoral victory in 2020.

While the lawsuit is focused on Mr. Clark, Justice Department leaders in the suit also argued in defense of Mr. Martin. Two months ago, the D.C. Bar filed disciplinary charges against Mr. Martin over what it cast as his misconduct in seeking to punish Georgetown University’s law school.

Mr. Martin has spearheaded efforts by President Trump to use the Justice Department to pursue the president’s perceived enemies — what the administration claims are corrective measures intended to end “weaponization” of law enforcement by Democrats.

Increasingly, the Trump administration has clashed with state and local bars, as interest groups and some lawyers argue that unethical conduct by government lawyers acting on behalf of the Trump administration should be investigated and potentially punished.

The Justice Department is pushing forward a proposal to try to stall or delay state and city bars from conducting ethics investigations of its lawyers, and the new lawsuit argues that the D.C. Bar is among the entities that has shown partisan bias.

To back up that claim, the lawsuit points to how the D.C. Bar handled the case of Kevin E. Clinesmith, a former F.B.I. lawyer who pleaded guilty to making a false statement when he altered an email to try to justify court-ordered surveillance of a former 2016 Trump campaign adviser. After his plea, Mr. Clinesmith had his bar license suspended for a year.

The suit called Mr. Clinesmith’s punishment a “slap on the wrist” for suborning unlawful surveillance in violation of the Fourth Amendment, and compared it to the effort to disbar Mr. Clark for “attempting to tell a lie” about the 2020 election.

The lawsuit also invokes the Supreme Court’s 2024 decision granting partial immunity to presidents, suggesting that if a president has immunity, lawyers working for him in the government are also protected from ethical discipline.

“The president’s constitutionally required immunity would provide little protection if executive branch attorneys could be targeted for internal executive branch deliberations,” the lawsuit argued.

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'Murdaugh murders' will have a redo in South Carolina

South Carolina’s top court undid the murder convictions against Alex Murdaugh, the lawyer a jury had found guilty of murdering his wife and one of his sons in a trial that captivated the country, reported The New York Times.

In a unanimous opinion, the State Supreme Court said that “shocking jury interference” by a court clerk who oversaw jurors during the 2023 trial meant that Mr. Murdaugh’s convictions and life sentence must be overturned.

Mr. Murdaugh, 57, will remain in prison because he is also serving decades-long prison sentences after pleading guilty to stealing millions of dollars from his law firm and his former clients. While he has admitted to embezzlement, he has long maintained — including during testimony at his trial — that he did not kill his wife, Maggie, 52, and their younger son, Paul, 22.

The South Carolina attorney general's office, which prosecuted the case, will retry Mr. Murdaugh for the killings.

The surprise reversal of Mr. Murdaugh’s murder convictions followed nearly five years of whirlwind drama that began in one of South Carolina’s least populous counties and grew to capture global attention. In the end, the trial — one of the highest profile in the state — was upended by a small-town clerk who could not resist injecting herself into the spectacle.

Mr. Murdaugh’s lawyers hailed the decision, Alex has said from Day 1 that he did not kill his wife and son,” the lawyers, Dick Harpootlian and Jim Griffin, said in a statement. “We look forward to a new trial conducted consistent with the Constitution.”

The Murdaugh murders, as they came to be known, took place in June 2021 on the Murdaugh family’s hunting estate, in a rural part of South Carolina’s Lowcountry.

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