|
|
 |
 |
 |
State Doesn't Need Adam Walsh Act
May 15, 2007
Letters to the Editor
New York Law Journal
Michael Delohery's recent article calling for a state version of the patently-unconstitutional discovery restriction in the Adam Walsh Act is entirely wrong ('New York's Need for an Adam Walsh Act,' May 1, page 5). The discovery provisions of the federal Adam Walsh Act violate due process as well as a defendant's Sixth Amendment confrontation and compulsory process rights to confront the evidence against him and present exculpatory evidence essential to the presentation of an effective defense.
In a challenge to the discovery prohibition of the Adam Walsh Act, the National Association of Criminal Defense Lawyers submitted a brief in a criminal case in the Eastern District of Virginia, United States v. Knellinger, Criminal No. 3:06cr126, in which we made these very arguments. On Jan. 25, 2007, Judge Robert E. Payne ordered a mirror image of the hard drive of the defendant's computer be turned over to his expert as reasonable and necessary to his defense without even reaching the constitutional issues.
It can take experts many hours of hard work to uncover the true facts in a forensic case, which are often exculpatory, and competent forensic experts are few and much in demand. It is beyond cavil that adding hours or days of travel with bulky and expensive equipment can be prohibitively expensive in many cases, for no good reason. In a case in Westchester County, a lawyer obtained, over objection, a mirror image of a hard drive under a suitable protective order. A Washington State computer forensics expert retained by the defendant discovered that the offending images were actually temporary Internet files which had been deleted. Access to those files required special forensic software, raising the question whether the defendant actually 'possessed' them, i.e., had dominion and control over them, under New York law at the time the search warrant was executed.
When this information was presented in court, a misdemeanor, no-jail settlement was agreed upon. And as the Duke lacrosse assault case shows, the failure of the district attorney to turn over exculpatory evidence can be as much willful blindness to it as willful concealment. Fairness in criminal proceedings means equal access to witnesses and evidence. New York does not need the Adam Walsh Act.
Martin S. Pinales
The author is president, National Association of Criminal Defense Lawyers.
|
|
National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 •
assist@nacdl.org
|
|