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Vol. 11 No. 9 - September 24, 2012

Special Election to Fill Vacant Seat on the Board of Directors

Due to a resignation announced at the Board Meeting in San Francisco, NACDL’s Board of Directors will conduct a special election to fill a vacant seat on the board. The election will be held at the board’s next regularly scheduled meeting in New Orleans on October 27, 2012. The Board manages the business affairs and policy of NACDL, and any voting member may submit his or her name as a candidate. Statements of qualifications must be received by 5pm EST on October 12, 2012. For more information, visit http://www.nacdl.org/Elections/.

Long-Suppressed Evidence Will Be Key to Jeffrey MacDonald’s Day in Court

A hearing began on September 17, 2012, for former Army Captain and medical doctor Jeffrey R. MacDonald, who has spent the past 33 years in prison resulting from an unfair trial and a wrongful conviction. The date is fortuitous, yet auspicious - September 17 is Constitution Day, commemorating the date that the Constitution was signed in Philadelphia 225 years ago.

There is no question that the crime was horrific. There is also no longer any question that MacDonald’s conviction was due to failures by the prosecution to live up to its constitutional duties to disclose evidence favorable to his defense and allow the defendant to present witnesses in his defense. The court in this hearing is examining the written testimony of a former U.S. Marshal, now deceased, who was present when the lead prosecutor at MacDonald’s trial coerced a defense witness into changing her testimony and then lied about it to the court, and also considering the implication of unidentified hair and DNA evidence.

For more, please click here.

Court: Guantanamo Detainees Retain Right to Legal Counsel

On September 6, 2012, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia issued an order upholding Guantanamo detainees’ access to counsel. The order directly addresses and rejects each argument made by the Government in its attempt to weaken the detainees’ constitutional right to seek review of the legality of their detention.

For more, please click here.

Recent Amicus Curiae Briefs Posted on NACDL Website 

Brooks v. United States, U.S. Sup. Ct., No. 12-218, decision below 681 F.3d 678 (5th Cir. 2012), brief filed 9/19/12. Defense Witnesses-Self-Incrimination-Immunity. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Walton v. United States, No. 12-5847. Question presented: Under what circumstances may a trial court grant, or compel the prosecution to grant, use immunity to a witness who has essential exculpatory evidence unavailable from other sources but who invokes his Fifth Amendment privilege against self-incrimination? Author: John D. Cline, San Francisco, CA.

Walton v. United States, No. 12-5847, decision below 681 F.3d 678 (5th Cir. 2012), brief filed 9/19/12. Jury Instructions-Willful Blindness. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Brooks v. United States, No. 12-218. Question presented: Given the requirements of Global-Tech Appliances, Inc. v. SAB, S.A., 131 S.Ct. 2060 (2011), how should the jury be instructed on “willful blindness” in a criminal case? Author: John D. Cline, San Francisco, CA.

Evans v. Michigan, U.S. Sup. Ct., No. 11-1327, case below 810 N.W.2d 535 (Mich. 2012), brief filed 08/22/12. Erroneous Acquittal-Double Jeopardy. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: An acquittal by the court is always a bar to further proceedings for the same offense. The rule applies even if the acquittal resulted “from erroneous evidentiary rulings or erroneous interpretations of governing legal principles.” United States v. Scott, 437 U.S. 82, 89 (1978). An error of law leading to an acquittal “affects the accuracy of that determination, but it does not alter its essential character.” Id.Authors: George C. Thomas, III, Rutgers School of Law, Newark, NJ, and David M. Porter, NACDL, Sacramento, CA.

Smith v. United States, U.S. Sup. Ct., No. 11-8976, case below 651 F.3d 30, brief filed 8/27/12. Conspiracy-Defenses-Burden of Proof-Mens Rea. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: A defendant’s withdrawal from a conspiracy during the statute of limitations period negates and element of a conspiracy charge such that, once a defendant meets his burden of production that he did withdraw, the burden of proof rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period. The requirement that the prosecution prove the defendant’s guilt beyond a reasonable doubt is a defendant’s foremost safeguard against a wrongful conviction. The defendant’s withdrawal defense negated the “participation” element of the conspiracy, and relieving prosecutors of their burden to prove a defendant’s mental state substantially undermines the fairness of the trial by diluting one of the most important protections against wrongful convictions. Authors: Timothy P. O’Toole and Jeffrey Hahn, Miller & Chevalier, Chartered, Washington, DC.

Henderson v. United States, U.S. Sup. Ct., No. 11-9307, decision below at 646 F.3d 223 (5th Cir. 2011), brief filed 9/6/12. Appeals-Plain Error-Failure to Object at Trial. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: Federal Rule of Criminal Procedure 52(b), which provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” permits plainness to be measured at the time of appeal when the law was settled at the time of trial. Johnson v. United States, 520 U.S. 461 (1997). Nothing in the text of the rule, nor does any policy justify, varying from the Johnson “time of appeal” rule when the law was unsettled at the time of the trial (a question that was left open in Johnson). The “time of appeal” rule serves Rule 52(b)’s policy of allowing obvious injustices to be corrected on appeal; serves the goal of treating similarly situated defendants equally; and avoids wasteful appellate litigation over whether particular issues were “settled” or “unsettled” at the time of trial. Authors: John D. Cline, San Francisco, CA, and Barbara E. Bergman, Albuquerque, NM.

Miller v. Louisiana, U.S. Sup. Ct., No. 12-162, decision below 83 So.3d 178 (La. App. 2011), brief filed 9/4/12. Verdicts-Juror Unanimity. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Louisiana Association of Criminal Defense Lawyers, and the Oregon Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: The petition should be granted in order to decide whether the Sixth Amendment and Fourteenth Amendments require unanimity in state criminal cases. The traditional unanimity requirement serves as a basic component of the Sixth Amendment's jury guarantee, which is not currently being afforded to accused persons in Louisiana and Oregon. Amici urge that the petition be granted in order to address whether the Court's decisions in Apodaca v. Oregon, 406 U.S. 404 (1972) and Johnson v. Louisiana, 406 U.S. 356 (1972)  properly interpreted the Sixth Amendment jury trial guarantee to permit non-unanimous juries, which were unknown at the time of the nation's founding. Authors: Timothy P. O'Toole and Mia P. Haessly, Miller and Chevalier, Chartered, Washington, DC.

Federal Policy Update

National Security  

On September 12th, Members of the House of Representatives voted 301-118 to reauthorize amendments to the Foreign Intelligence Surveillance Act (FAA) passed in 2008 for another five years, through December 2017.  NACDL opposes this reauthorization and signed on to a coalition letter raising our concerns that the FAA could violate the Fourth Amendment rights of American citizens. Senator Wyden (D-OR) has placed a hold on the bill in the Senate.

On September 20th, the Senate Judiciary Committee will voted in favor of an amendment introduced by Senator Leahy (D-VT) to amend the Electronic Communications Privacy Act (ECPA) to require law enforcement to obtain a warrant based on probable cause before it can collect the content of individuals' electronic communications. NACDL supports this amendment and joined a coalition letter urging members of the Committee to vote in favor of the amendment. The Committee will mark up the base bill on November 15.

The Indigent Defense Committee is seeking nominations for the Champion of Indigent Defense Award

This award recognizes a group or an individual for outstanding efforts in making positive changes to a local, county, statewide or national indigent defense system. Although the outstanding representation of every indigent defendant is one of our goals, this award is intended to recognize efforts toward positive systematic changes through legislation, litigation or other methods and not the outstanding representation of individual clients.

Anyone shall be qualified to make a nomination for the Champion of Indigent Defense Award. Each nomination shall include the name, title, and contact information of the person or group and a short (1-2 page) summary of: the problems that existed in the relevant indigent defense system, the efforts made by the nominee to improve the system (i.e., coalitions formed, legislation proposed, task forces created, litigation efforts, etc.), the number of years nominee has been involved in efforts to improve indigent defense, and the changes that have been made in the system as a result of the nominee's efforts. It is not necessary that the nominee be a criminal defense lawyer.

Please forward all nominations to Elsa-Maria Britt Ohman at eohman@nacdl.org.

NACDL supports New Mexicans for Equal Justice

NACDL is supporting a campaign in New Mexico for the amendment of the state’s constitution which would create an independent Public Defender Department. Constitutional Amendment 5 will appear on the November ballot in New Mexico and, if passed, would amend Article 6 of the state constitution and establish the Public Defender Department (PDD) as an independent state agency by removing it from its current location under the control of the executive branch. The amendment would also create an independent board that would appoint and provide administrative guidance to the Chief Public Defender and exercise oversight of the department. To learn more about the campaign visit their website:  http://balancethescalesnm.org/ 

NACDL’s Indigent Defense Counsel appointed to Maryland Task Force on Indigent Defense

As a result of ongoing litigation, the Maryland General Assembly has created a Task Force to study the laws and policies relating to the representation of indigent criminal defendants. John Gross, NACDL’s Indigent defense Counsel has been appointed to the Task Force which will hold its first organizational meeting on October 16, 2012, in Annapolis, Maryland.

FREE Live & Online Webcast Training Series - Age Matters: Strategies for Representing Juveniles in Adult Court - Sept. 25 & 26

In a series of decisions involving youth facing criminal charges, the United States Supreme Court has recognized the legitimacy and relevance of scientific research relating to adolescent brain and behavioral development. NACDL is presenting a series of FREE webcast trainings on all aspects of these important new developments in juvenile law, in partnership with the National Juvenile Defender Center, Juvenile Law Center and the Campaign for the Fair Sentencing of Youth, supported by funding from the Foundation for Criminal Justice and the Ford Foundation. These webcasts will provide essential instruction on incorporating this science into the defense of adolescent clients facing charges in adult criminal court. They are a must-see for anyone who represents a juvenile in adult court. Where: live streaming at your computer; When: Sept. 25 at 4:00 - 5:30 ET; Sept. 26 at 11:00 am - 12:30 pm and 1:00 - 2:30 pm ET. These trainings will be available online after the live program and are free to non-members as well, so please tell your colleagues! For more information and registration visit: www.nacdl.org/agematterswebinar.

Also watch our series on Representing Juveniles at Sentencing in Adult Court online at www.nacdl.org/juvenilesentencing. The recent landmark U.S. Supreme Court decisions in Graham, Miller and Jackson have greatly affected the sentencing of juveniles and all aspects of representing a juvenile client in adult court. In Graham v. Florida, the U.S. Supreme Court held that it is unconstitutional to impose life without parole sentences for juveniles convicted of non-homicide offenses, largely because developmental and scientific research show that juveniles possess a greater capacity for rehabilitation, change, and growth than adults, and are less culpable for their criminal conduct. In Miller v. Alabama, the Court then held that mandatory life without parole for those under the age of 18 at the time of their crime (including homicide offenses) violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” These two webcasts offer training and strategies for lawyers representing a juvenile at sentencing in adult court and lawyers handling the resentencing of an individual previously sentenced to juvenile life without parole. 

NACDL's White Collar Summer Series: "A Conversation With Abbe David Lowell" is now available online!

NACDL invites you to watch this unique one-hour program with prominent defense attorney Abbe David Lowell as he discusses lessons learned from his defense of former U.S. presidential candidate and Senator John Edwards, former New York State Senator Joseph Bruno, former Puerto Rico Senator Hector Martinez, and other prominent politicians and public figures. By exploring the overcriminalization implications of such prosecutions, Lowell seeks the answer to the question:  Is the criminal law out of control?  Click here to view this free webcast. 

NACDL Announces White Collar Criminal Defense College at Stetson, January 9 - 13, 2013

The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing - all in the context of a white collar matter.

For more information on application process, please visit www.nacdl.org/cle or contact Ellen Podgor at epodgor@law.stetson.edu.

JUST ONE: One word. One call. Just one referral. YOU BENEFIT!

You can make a difference in the career of a criminal defense lawyer. Take a moment to refer another lawyer to America’s best-connected and most knowledgeable criminal defense bar association. After all, most NACDL members were introduced by a colleague...now it’s your turn to pass it on! Make your one referral today, and you will benefit, too!

Special Introductory Offer: New members you refer get 3 extra months of full member benefits FREE! That’s 15 MONTHS OF NACDL MEMBERSHIP for the price of 12!  

(Open to new members only)

How you benefit: For every new member you recruit, you will receive a $25 discount off your next year's dues - up to a total of $125 - and earn a chance to win an Amazon Kindle Fire. 

Visit: www.nacdl.org/getamember you'll find talking points on the value of membership, sample tweets and Facebook updates, and a specially coded membership application that will give your friend 3 months of NACDL member benefits FREE. 

You can make a difference. One word. One call. That's all it takes.  

Review a Book for The Champion Magazine

Do you want to review a book for The Champion? Here is the list of available books. Send your request to qchatman@nacdl.org. First come, first served. The reviews are due on February 1, 2013.

  1. Errol Morris, A WILDERNESS OF ERROR: THE TRIALS OF JEFFREY MACDONALD (examining the nature of evidence and proof in an infamous murder case that still transfixes a nation 40 years after its supposed resolution)
  2. Paul Guzzo, THE DARK SIDE OF SUNSHINE (murder, mayhem, marijuana, mafia; a criminal history of Tampa, Florida, focusing on its most infamous people and events)
  3. Thomas Foley, MOST WANTED: PURSUING WHITEY BULGER, THE MURDEROUS MOB CHIEF THE FBI SECRETLY PROTECTED (the untold story of the investigators who did the gritty work to bring down Whitey Bulger and the FBI)
  4. Silvia Pettem, COLD CASE RESEARCH (resources for unidentified, missing, and cold homicide cases)
  5. Glenn Greenwald, WITH LIBERTY AND JUSTICE FOR SOME (lays bare the mechanisms that protect the elite from accountability while the powerless are imprisoned with greater ease)

Group Admission to the Bar of the U.S. Supreme Court

NACDL is sponsoring a unique opportunity for up to 12 members to participate in a group admission ceremony to the Bar of the U.S. Supreme Court in Washington, DC. The opportunity will be available to the first 12 qualified members on a first-come, first-served basis and will take place on the morning of January 7, 2013. Members will be responsible for their own travel arrangements, must be in good standing of a state bar for a minimum of three years, and must submit their completed application materials to NACDL by November 9, 2012.
Interested members should contact Jack King, NACDL's Director of Public Affairs & Communications, at (202) 465-7628 or jking@nacdl.org for further instructions.

“The Criminal Docket” Weekly Podcast

On March 16, 2012, NACDL launched its new weekly podcast series, “The Criminal Docket,” hosted by Ivan J. Dominguez, NACDL’s deputy director of public affairs & communications. Each week, “The Criminal Docket” provides a rundown of the highlights in criminal justice news from the prior week, and previews what’s coming up on the criminal docket in state and federal agencies, legislatures and the courts. In addition, every episode explores important items on the criminal justice agenda, in-depth, with top leaders in the legal practice, public policy, journalism, academia, and others whose lives intersect with the criminal justice system.

In the most recent two-part episode, NACDL’s Deputy Director of Public Affairs & Communications Ivan J. Dominguez sits down with Wilmer Hale partner Danielle Spinelli, an NACDL member and principal author of NACDL’s joint amicus briefs in both Florida v. Jardines and Florida v. Harris, the dog sniff cases that will be argued before the U.S. Supreme Court on October 31, 2012. In addition, he speaks with Dr. Lawrence J. Myers, a leading dog sniff expert who teaches at Auburn University in Alabama and NACDL’s National Security Counsel Mason Clutter.

Please look for a new episode of “The Criminal Docket” each week, as well as all past episodes, available free of charge at either www.nacdl.org/thecriminaldocket or in Apple’s iTunes Store.

NACDLcle+ Mobile App Released

Description: NACDL EdgeNACDLcle+ is the official mobile app for NACDL's industry-leading Continuing Legal Description: In the App StoreEducation (CLE) programming. With NACDLcle+, you have on-the-go mobile access to our upcoming CLE calendar, on-site conference agendas, faculty bios, venue maps, exhibitor information, and the ability to download conference materials. NACDLcle+ also puts browsing our extensive library of self-study resources in the NACDL Store at your fingertips. Enjoy 24/7 access to all things CLE-all in the palm of your hand!

Download from iTunes | Learn More 

NACDL's Daily Criminal Justice Briefing

NACDL now offers a terrific and free member benefit from NACDL's Public Affairs and Communications Office: NACDL's Daily Criminal Justice Briefing. Each morning, Briefing Editors Jack King and Ivan Dominguez collect and compile news items of particular interest to the criminal defense bar from around the world and provide links and summaries in a daily email update. In addition, subscribers receive breaking news stories and links to Supreme Court decisions as they happen. The goal is to provide the resources necessary to ensure that the criminal defense bar is informed and current on a wide range of criminal justice news, legal developments, analysis, and commentary.

So far, nearly 1,200 NACDL members have subscribed to the Daily Criminal Justice Briefing. If you would like to join them, simply click here

Contribute to the NACDL Brief & Motion Bank today!

One of the great benefits you get as a member of NACDL is the Brief & Motion Bank, containing almost 400 documents across over 50 topics. We hope you will also help to strengthen it for the benefit of other members. Do you have a unique or exceptional brief or motion? Maybe one that involved an in-depth discussion of the case law, had an especially creative argument, or addressed an unusual situation? Just as using the NACDL Brief & Motion Bank saves you time, so you don’t have to start from scratch when you are already pressed for time, documents you donate to the bank will help your fellow NACDL members in the same way.

We encourage submissions on any topic. Please take a look at what's there, and think about what documents you've written that would enhance the value of the Brief & Motion Bank for other NACDL members. If you would like more information or to contribute to the Brief & Motion Bank, please contact NACDL's Resource Counsel Vanessa Antoun at vantoun@nacdl.org.

Recent NACDL Letters and Member Testimony

July 30, 2012, Coalition Letter on the Leahy Amendment to the Cybersecurity Act 
June 18, 2012,  NACDL Letter to Senator Dick Durbin  on “Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences” 
June 15, 2012, Coalition Sign-On Letter Re Leaks of Highly Classified Information 
June 11, 2012,  Coalition Sign-On Letter Re Sunset of FISA Amendments Act of 2008 
June 5, 2012, Coalition Letter on “Ensuring that Federal Prosecutors Meet Discovery Obligations” 

Stay Up-To-Date on NACDL News & Issues

DUI Listserve 
The focus of this listserve is DWI / DUI issues. Click here to learn how to subscribe and to review the listserv policies and guidelines.

Eyewitness Identification 
The focus of this listserve is eyewitness identification. In addition to open participation by NACDL members, NLADA members are invited guests to this listserve. Click here to learn how to subscribe and to review the listserv policies and guidelines.

Forensic Evidence Listserve 
The focus of this listserve is issues surrounding forensics. In addition to open participation by NACDL members, NLADA members are invited guests to this listserve. Click here to learn how to subscribe and to review the listserv policies and guidelines.

The Young & New Lawyers Listserve 
For criminal defense lawyers who are new to the profession or just starting out in private practice (generally, lawyers under 40 years of age, or in their first five years of practice). We also encourage you to participate if you are getting your start in private practice after spending time clerking, working as a DA or PD, or are leaving a firm to start your own practice. More experienced lawyers who have a gift and dedication to mentoring are encouraged to participate and offer advice and share their experience with younger colleagues. It's a place for attorneys getting their start - in whatever way - to get to know each other and to learn from more experienced colleagues. It is a forum where you can ask questions about all those things you need to know that they don't teach in law school. Click here to learn how to subscribe and to review the listserv policies and guidelines.

NACDL General Listserve 
The NACDL General Listserve helps facilitate discussion of criminal defense- related matters. Subscription is free and limited to active NACDL members. Click here to learn how to subscribe and to review the listserv policies and guidelines. So far, more than 700 members have joined.

NACDL's Newest Affinity Partners

MyCase: This new affinity partner offers simplified legal practice management in the cloud. Organize cases, your calendar, document mgmt., time and billing plus so much more. Designed by a criminal defense lawyer FOR criminal defense lawyers. Link to www.mycaseinc.com.

LawPay.com: Our latest affinity partner provides credit card processing services. Their niche is providing processing services to the unique needs of lawyers and law firms. Link to  www.lawpay.com.

Questions, comments or news items?

E-mail or call Director of Public Affairs & Communications Jack King at (202) 465-7628 or E-mail or call Deputy Director of Public Affairs & Communications Ivan Dominguez at (202) 465-7662.

Please feel free to pass along the E-NEWS to friends. Ask them to click here to become a member.

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