Daily Criminal Justice Briefing

Below is a sample of the Daily Criminal Justice Briefing, which is available exclusively to members of NACDL. The briefing comprises each day's most important stories affecting the criminal defense profession from major new sources and journals, and is delivered each day to your inbox.

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Daily Criminal Justice Briefing
NACDL Social Media

 Saturday, July 20, 2013  

NACDL News Release

NACDL Executive Director Norman L. Reimer Testifies at Congressional Overcriminalization Task Force Hearing; Calls for Clear, Strong and Universal Intent Requirements in Federal Criminal Law ("[Yesterday]'s hearing of the newly-created Congressional Task Force on Overcriminalization focused on the specific subject of "Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law." NACDL Executive Director Norman L. Reimer was one of two witnesses appearing before the task force....Urging Congress to adopt a default mens rea statute, requiring willful conduct - specifically, that a person must act with the knowledge that the person's conduct was unlawful -- as the basis for criminal liability, and to altogether abandon strict liability criminal laws, Norman Reimer said: 'Without a clear intent requirement, the individual will not realize when they are crossing the line. That is not fair. And it's not effective. If people do not know something is wrong, they will not be deterred from doing it. That's the whole point of a criminal law in the first place.'") (Webcast of the hearing is available here, begins at about the 19:00 minute mark (around 9:03 a.m.); a link to NACDL Executive Director Norman Reimer's testimony on behalf of NACDL is available here.)

Main Justice

Criminal Laws Should Connect Guilt to a Defendant's Intent, House Panel Hears ("'We have created a situation in this country where prosecutors are holding all of the cards, all of the discretion,' Reimer said.")

Richmond Times-Dispatch

Officials to review flawed FBI hair analysis in criminal cases ("More than 2,000 criminal cases across the United States involving FBI 'hair examiners' will be reviewed under an agreement reached by federal law enforcement officials, defense lawyers and innocence advocates. It is not known how many or if any of the cases occurred in Virginia, said Steven D. Benjamin, a Richmond lawyer and president of the National Association of Criminal Defense Lawyers.")

More stories on review: Miami Herald ("'This will be critical to giving wrongly convicted people a fair chance at a fair review,' said Steven D. Benjamin, a Virginia attorney who's the president of the National Association of Criminal Defense Lawyers."); ABA Journal ("The FBI and the Justice Department uncovered the cases in a review of more than 20,000 lab files that was undertaken in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers..."); Daily Mail (UK); Guardian Express; The Takeaway (Public Radio)

The Crime Report

Would Arresting More Whites End Racial Disparities in the Justice System? ("'Profound' racial and ethnic disparities continue to mar America's criminal justice system, according to a report by the National Association of Criminal Defense Lawyers (NACDL) [and others]. The report, Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System, summarized a three-day discussion in New York last fall that included prosecutors, judges, defense attorneys, scholars, community leaders, and the formerly incarcerated. In one of the more provocative comments quoted by the report, Rick Jones of the Neighborhood Defender Service of Harlem suggested: 'The surest path to [criminal justice] reform would be to arrest more white people.'")

Law.com/Corporate Counsel/Law Technology News

Proposed Law Aims to Improve Email Privacy ("An amendment proposed to the Electronic Communications Privacy Act may make it more difficult to obtain subscribers' webmail....Meanwhile, Mason Clutter, national security and privacy counsel at the National Association of Criminal Defense Lawyers (link: http://www.nacdl.org), tells LTN that many of regulatory agencies have criminal components to them, meaning they could share information easily. 'Regulatory agencies could obtain private information without a warrant and then hand it over to their criminal law counterparts to be used in prosecutions,' says Clutter.")

Law.com/National Law Journal

4th Circuit Voids Protection of Reporter in Leak Case ("The court rejected a New York Times reporter's claim that he can't be compelled to testify in the prosecution of an ex-CIA official.")

Law.com/The Recorder

'Defense Lawyer's Dream' Becomes Malpractice Nightmare ("Messy litigation involving sex tourism charges against a businessman has spawned a bizarre malpractice suit against elite defense lawyers.")

Law.com/Am Law Daily

How-and Why-the Lawyer Bubble Keeps Growing ("Some say a recent plunge in law school applications means the legal education crisis is ending. Don't believe it, writes Steven J. Harper.")

Convicted Ex-Vorys Sater Lawyer Faces New Graft Counts ("An ex-partner sentenced in June to nine years in prison for his role in a bribery scheme has been indicted on additional corruption charges.")

Law.com/New Jersey Law Journal

N.J. Justices Say Cellphone Can't Be Tracked Without Warrant ("Cellphone users have a reasonable expectation of privacy as to their location and police in New Jersey have to obtain a warrant to track a criminal suspect's phone, the New Jersey Supreme Court rules.")

Former Prosecutor Found Dead in Apparent Suicide ("John Fahy, known for prosecuting government corruption as well as defending those accused of it, is found dead near his Rutherford home, an apparent suicide.")

Law.com/Legal Intelligencer

Porn Producers Lose Another Round in Federal Court ("The government's legitimate interest in stopping child pornography trumps the burden imposed on pornography producers by a law requiring them to keep records of the ages of their models and actors, a federal judge held for the second time.")

Blog of Legal Times

U.S. Tech Companies Request Data on NSA Surveillance ("Apple Inc., Facebook Inc., Google Inc., Microsoft Corp., Yahoo! Inc., and more than a dozen other tech companies have joined forces with civil liberties groups and investment firms in a push to uncloak U.S. government surveillance efforts, following leaks last month about National Security Agency data gathering. In a letter [PDF] sent Thursday to President Barack Obama and other U.S. officials, the 64-member coalition wrote that the government should permit Internet, telephone, and web-based service providers to publicly report statistics about national security-related requests.")

Judge 'Troubled' by DOJ Position in Drone Strike Case ("A Washington federal judge today said she was 'troubled' by the U.S. Department of Justice's position that the courts are powerless to hear a challenge of the government's ability to target and kill U.S. citizens abroad.")

D.C. Circuit Tosses Ex-Capitol Hill Staffer's Conviction ("The U.S. Court of Appeals for the D.C. Circuit vacated the wire fraud conviction of a former Capitol Hill staffer on Friday, in a ruling that addresses when a defendant can erase convictions after reaching a plea deal with prosecutors. Russell Caso Jr.'s case starts at an unusual place. He is innocent of the crime for which he was charged and convicted, and the government does not dispute the point. The U.S. Supreme Court decision in 2010 in Skilling v. U.S. narrowed the scope of honest services wire fraud charges to require bribery or kickbacks-elements not present in the charged conduct against Caso.")

New York Times

Transcript: Obama Speaks of Verdict Through the Prism of African-American Experience ("The African-American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws, everything from the death penalty to enforcement of our drug laws. And that ends up having an impact in terms of how people interpret the case.")

Editorial: President Obama's Anguish ("President Obama did something Friday that he hardly ever does - and no other president could ever have done. He addressed the racial fault lines in the country by laying bare his personal anguish and experience in an effort to help white Americans understand why African-Americans reacted with frustration and anger to the acquittal of George Zimmerman in the shooting of Trayvon Martin.")

S.E.C. Charges Are Latest Test for Steven Cohen ("The case contends that Mr. Cohen ignored "red flags" that should have led him to investigate suspicious trading activity at SAC and take steps to prevent illegal conduct.")

Court Tells Reporter to Testify in Case of Leaked C.I.A. Data ("A federal appeals court ruled that James Risen, an author and a reporter for The New York Times, must testify against a former government official charged with giving him classified information.")

Kerry Achieves Deal to Revive Mideast Talks ("Secretary of State John Kerry said Israel and the Palestinian Authority had agreed to join him in Washington in hopes of resuming formal talks for the first time since 2010.")

Accuser's Sentence in Dubai Rape Case Stirs Anger in West ("A Norwegian woman who was sentenced to 16 months in jail in Dubai for having sex outside marriage after reporting that she had been raped said Friday that she had decided to speak out in hopes of drawing attention to the risks to outsiders who might misunderstand the Islamic-influenced legal codes in this cosmopolitan city.")

Setbacks Rise in Prosecuting the President of Kenya ("Convicting a sitting president of crimes against humanity was never going to be a simple process, but the bumpy case against President Uhuru Kenyatta of Kenya has proved the challenges of such a prosecution.")

In Pakistan, Police See Political Revenge Behind Poisoning Deaths ("The politician, Arsal Khan Khichi, had been trounced in national elections in May, losing by more than 36,000 votes to a cousin, Jahanzaib Khan Khichi, who represents the Tehreek-e-Insaf party of the charismatic politician Imran Khan. According to the police, the bitter loser hatched a plot against his cousin's daily charitable display.")

Leading Putin Critic Is Freed Pending Appeal After Protests ("Not even 24 hours after a judge ordered him handcuffed and imprisoned to begin a five-year sentence for embezzlement, the Russian political opposition leader, Aleksei A. Navalny, walked free - temporarily, at least, pending an appeal.")

Berlusconi Associates Sentenced ("Three associates of former Prime Minister Silvio Berlusconi - Emilio Fede, Lele Mora and Nicole Minetti - were sentenced to jail terms of five to seven years on Friday by an Italian court that found them guilty of aiding and abetting prostitution by procuring young women for paid sex with Mr. Berlusconi.")

Panama: Former Spy Returns to U.S. ("A former Central Intelligence Agency officer who was detained in Panama on Thursday in connection with a criminal conviction in Italy was released and flew to the United States on Friday, American officials said.")

Litvinenko Inquiry Blocked to Avoid Upsetting Russia, British Official Suggests ("The British authorities said publicly for the first time on Friday that concern for 'international relations' had been a factor in blocking a public inquiry into the poisoning death of Alexander V. Litvinenko, a former K.G.B. officer, an apparent reference to their desire to avoid upsetting the Kremlin.")

Judge Challenges White House Claims on Authority in Drone Killings ("A federal judge on Friday sharply and repeatedly challenged the Obama administration's claim that courts have no power over targeted drone killings of American citizens overseas.")

Inmate's Letters Hint at North Korea Opening ("The family of Kenneth Bae, the American sentenced to 15 years of hard labor in North Korea, received letters from him in the mail for the first time this past week, telling them that his health is worse and asking them to press the United States government to help secure his release, Mr. Bae's sister said Friday.")

Surveillance Court Renews Order for Phone Call Data ("The Foreign Intelligence Surveillance Court has approved a new order for collection of bulk data on phone calls in the United States, allowing the National Security Agency to continue a practice that has been criticized by some members of Congress and the public.")

Men Found Captive in Houston Home ("Officers responding to a 911 call Friday found four elderly and middle-aged men who had been held against their will at a home in north Houston so their captors could collect and cash their welfare checks, the authorities said.")

Massachusetts: DNA Match Made in Strangler Case ("Law enforcement officials in Boston on Friday announced that the remains of a man who confessed he was the Boston Strangler match the DNA profile of seminal fluid found at the last of the crime scenes attributed to the serial killer.")

Wisconsin: Teenager's Killer, 76, Was Sane, Jury Rules ("A Milwaukee man knew what he was doing when he accused his teenage neighbor of burglary and shot the boy to death, jurors decided Friday.")

Senate and C.I.A. Spar Over Secret Report on Interrogation Program ("The chairwoman of the Senate Intelligence Committee says she is planning a push to declassify hundreds of pages of a secret committee report that accuses the Central Intelligence Agency of misleading Congress and the White House about the agency's detention and interrogation program, which is now defunct.")

Beliefs: As a Religion, Marijuana-Infused Faith Pushes Commonly Held Limits ("In 2010, Mr. Christie, along with several co-defendants, was indicted on charges including conspiracy to manufacture and distribute marijuana. He does not dispute the facts of the case. He just believes that his operation - 'a real 'street ministry' serving the needs of our neighbors from all walks of life,' he told me in an e-mail from prison, "'usy six days a week,' employing 'three secretaries and a doorman' - was protected by the First Amendment.")

Former Bulger Partner Relates Chilling Details of Girlfriend's Killing ("Stephen Flemmi, known as "the Rifleman," estimated Friday that he knew of about 60 mob killings in South Boston back in the 1960s, '70s and '80s. In some cases, he lived up to his billing and was the gunman. In others, he was called in as the cleanup crew to dispose of the corpse.")

Old Partners Meet on Opposite Sides in Bulger Trial ("Perhaps the most damning testimony in the trial of James (Whitey) Bulger, the second-most notorious man in Boston, came from a hearing-impaired witness.")

Charles M. Blow: Barack and Trayvon ("On Friday President Obama picked at America's racial wound, and it bled a bit.")

Without Bloomberg in Charge, Police Commissioner's Future Is Unclear ("His right-hand man is leaving New York for a job as a university spokesman. His top commanders are retiring. The mayor who appointed him police commissioner is nearing the end of his third and final term, and his replacement may want a fresh face.)

U.S. Charges Algerian in Deadly Gas Plant Attack ("The man who the authorities say masterminded the attack at an Algerian gas plant in January that killed three Americans and dozens of other hostages and kidnappers has been charged by federal prosecutors in Manhattan and is being sought, officials said on Friday.")

G-20 Backs Plan to Curb Tax Avoidance by Large Corporations ("The world's richest economies for the first time endorsed a blueprint on Friday to curb widely used tax avoidance strategies that allow some multinational corporations to pay only a pittance in income taxes.")

DealBook: Under New Chief, a Feistier S.E.C. Emerges ("First the Securities and Exchange Commission rejected a settlement with a high-flying hedge fund manager, Philip A. Falcone. Then it charged another billionaire trader, Steven A. Cohen. By late Friday afternoon, it had accused one of the nation's largest cities, Miami, of securities fraud.")

U.S., Urging Worker Safety, Outlines Steps for Bangladesh to Regain Its Trade Privileges ("The Obama administration publicly recommended on Friday a series of steps that the Bangladesh government should take to have its trade privileges with the United States restored.")

Washington Post

Ex-San Francisco crime lab tech at center of scandal sentenced on cocaine charge (" A former San Francisco crime lab technician at the center of a scandal that resulted in hundreds of drug cases being dropped has been sentenced to home confinement on a cocaine charge. Deborah Madden was accused of skimming cocaine she was supposed to be testing while working at the lab in 2009.")

Photos of Tsarnaev's arrest released ("After Rolling Stone prints glamorous-looking photo of the Boston suspect, new photos offer another image.")

McDonnell backers start legal-defense fund ("Supporters of Virginia Gov. Robert F. McDonnell have established a legal-defense fund for the Republican, the subject of state and federal investigations related to his connection to a businessman who showered the first family with luxury items, monetary gifts and loans.")

Manning's patriotism broached in testimony ("The patriotism of Bradley Manning, the Army private on trial for leaking classified documents, came under scrutiny Friday when one of his supervisors testified that Manning told her that he had 'no allegiance' to his country and that the American flag 'meant nothing to him.'")

SEC rejects deal with fund manager ("The Securities and Exchange Commission has rejected a preliminary settlement that its enforcement staff reached with hedge fund billionaire Philip Falcone, in part because some commissioners concluded that the deal was not tough enough.")

SEC accuses Miami of misleading investors ("The Securities and Exchange Commission accused Miami and its former budget director of securities fraud related to several municipal bond offerings.")

Op-ed: D.C. Council should snuff out pot bill ("The District has better ways to deal with marijuana use than decriminalizing it.")

Op-ed: China's unbounded surveillance ("The domestic reach of Beijing far exceeds that of Washington.")

Editorial: For Cuba, a torch of freedom ("WHEN A blue rental car skidded off the road in rural Cuba on July 22, two men riding in the back seat were killed: dissident Oswaldo Payá, 60, and Harold Cepero, 32, the head of the youth wing of Mr. Payá's Christian Liberation Movement....Their deaths, and much about the car crash, remain suspicious; the Spanish politician who was at the wheel has said they were forced off the road by a vehicle bearing government license plates.")

Editorial: Vincent Gray's yearlong silence ("A YEAR has passed since U.S. Attorney Ronald C. Machen Jr. made the startling disclosure that D.C.'s race for mayor in 2010 had been "corrupted by a massive infusion of cash that was illegally concealed" from voters. The revelation prompted obvious questions about what Mayor Vincent C. Gray (D) - whose campaign benefited from a prominent businessman's unreported contributions - knew, and what he did or didn't do. A year later, questions remain - and new ones have emerged.")


After the Verdict (On the Media, "Last Saturday, George Zimmerman was found not guilty in the shooting of 17-year-old Trayvon Martin. Since then, everyone from protesters to politicians to pundits have weighed in. Brooke talks to Tampa Bay Times media critic Eric Deggans about the reaction and how the verdict has reignited discussions of race in the U.S.")

Florida Governor Stands Firm On 'Stand Your Ground' Law
("Scott called for a statewide day of prayer for unity on Sunday, but he said he's not budging on stand your ground.")


Sunday talk show tip sheet

Israel: Palestinian prisoners freed ("The release is part of the breakthrough by John Kerry in efforts to restart Mideast talks.")

The Hill

TSA chief warns of 'Underwear 2' bomb ("John Pistole described a second, highly dangerous al Qaeda underwear bomb in unusual detail at a Colorado security conference.")


Georgia death row inmate's execution remains on hold ("The scheduled execution date of Georgia death row inmate Warren Hill passed Friday night without the sentence being carried out. The execution remained on hold under a stay granted earlier in the week because the state attorney general's office did not file an appeal Friday, The Atlanta Journal-Constitution reported.")


NSA Phone Snooping Cannot Be Challenged in Court, Feds Say ("The Obama administration for the first time responded to a Spygate lawsuit, telling a federal judge the wholesale vacuuming up of all phone-call metadata in the United States is in the 'public interest,' does not breach the constitutional rights of Americans and cannot be challenged in a court of law.")

USA Today

Concerns rise about growing use of domestic drones ("The National Conference of State Legislatures recently reported that eight states have enacted legislation to control the use of drones and 35 others have or now are considering it. Like St. Onge's bill, most would prohibit or greatly restrict police use of a drone without a court-approved search warrant.") (You can visit NACDL's Domestic Drone Information Center at www.nacdl.org/domesticdrones)

Associated Press (via BloombergBusinessweek)

Judge: Govt position in drone suit 'disconcerting' ("A federal judge said Friday that she finds 'disconcerting' the Obama administration's position that courts have no role in a lawsuit over the 2011 drone-strike killings of three U.S. citizens in Yemen, including an al-Qaida cleric.")

Huffington Post

Marte Deborah Dalelv, Alleged Norwegian Rape Victim, Sentenced To 16 Months Jail In Dubai For Sex Outside Of Marriage ("A Norwegian woman sentenced to 16 months in jail in Dubai for having sex outside marriage after she reported an alleged rape said Friday she decided to speak out in hopes of drawing attention to the risks of outsiders misunderstanding the Islamic-influenced legal codes in this cosmopolitan city.")

FAA Warns Against Shooting Guns At Drones ("People who fire guns at drones are endangering the public and property and could be prosecuted or fined, the Federal Aviation Administration warned Friday. The FAA released a statement in response to questions about an ordinance under consideration in the tiny farming community of Deer Trail, Colo., that would encourage hunters to shoot down drones. The administration reminded the public that it regulates the nation's airspace, including the airspace over cities and towns.")

The Atlantic

The NSA Admits It Analyzes More People's Data Than Previously Revealed ("As an aside during testimony on Capitol Hill today, a National Security Agency representative rather casually indicated that the government looks at data from a universe of far, far more people than previously indicated.")

Ars Technica

The cops are tracking my car-and yours ("My quest to access automatic license plate reader (LPR) records.")

The Telegraph (UK)

Travellers' mobile phone data seized by police at border ("Thousands of innocent holidaymakers and travellers are having their phones seized and personal data downloaded and stored by the police, The Telegraph can disclose.")

The Verge

Could the NSA use Microsoft's Xbox One to spy on you? ("Skype swore wiretaps weren't possible before recent reports. Is Kinect next?")

Philadelphia Inquirer

Rising use of DNA to nab low-level criminals ("Wilson's arrest underscores the growing use of genetic material to catch low-level criminals, mostly for property crimes, in the Philadelphia area and nationwide.")

The Times and Democrat (SC)

Defense attorneys want role in court planning ("The South Carolina Association of Criminal Defense Lawyers says they're being left out of talks on how responsibilities for the control of criminal dockets are being carved up. Executive Director Kitty Sutton said in a prepared release that ongoing discussions as to who sets the criminal docket schedule leaves out representation by defense attorneys.")

Cleveland Plain Dealer

Federal overcriminalization hurts Ohioans: Chad Readler ("According to a recent congressional report, federal law creates an estimated 4,500 crimes. Nobody could possibly keep up with these laws, but we are all held to them. Indeed, in some cases, the government can convict without proving that the defendant intended to break the law. Last month, the Manhattan Institute held a forum in Columbus to address the proliferation of federal criminal laws and its impact on Ohio. Three major concerns emerged: the potential for federal crimes to turn citizens into unwitting criminals; the decreasing relevance of Ohio's criminal code in the face of expansive federal criminal law; and the danger inherent in Ohio following this worrisome federal trend.")



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