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Vol. 11 No. 10 - October 31, 2012

NACDL Launches Groundbreaking Restoration of Rights Database

NACDL is pleased to offer as both a resource for its members and as a service to the general public, a collection of individual downloadable documents that profile the law and practice in each U.S. jurisdiction relating to relief from the numerous civil rights and other consequences of criminal conviction. NACDL last week launched this new section of its online Resource Center to house NACDL member and former U.S. Pardon Attorney (1990-97) Margaret Colgate Love's comprehensive work on this topic in a user-friendly format. It is available at www.nacdl.org/rightsrestoration.

For more, please click here.

NACDL Co-Sponsored Conference -- Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System

The Foundation for Criminal Justice (FCJ) and NACDL recently sponsored an historic conference on racial disparity -- Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal JusticeSystem in New York City on October 17-19, 2012. The project was a collaboration among the following groups: NACDL, FCJ, The Brennan Center for Justice at New York University School of Law, the Center for NuLeadership on Urban Solutions, the Association of Prosecuting Attorneys, and the New York County Lawyers' Association (NYCLA). NACDL President Steven D. Benjamin gave welcoming remarks and Executive Director Norman L. Reimer delivered an opening address to set the tone for the conference. Immediate Past President Lisa Wayne and Rick Jones, co-Chair of NACDL's Task Force on the Restoration of Rights and Status After Conviction, participated as panelists. In addition, NACDL Board Member Geneva Vanderhorst served as a member of the advisory committee. Champion Editor Quintin Chatman, State Legislative Director Angelyn C. Frazer, and Director of Public Affairs & Communications Ivan J. Dominguez also attended. Angelyn Frazer and Norman Reimer served as members of the core planning group. The goal of the conference was to assemble a distinguished group of participants in the criminal justice system- judges, prosecutors, defense attorneys, scholars, community leaders, law enforcement officials, and formerly incarcerated advocates—who will collaborate to develop a menu of practical reforms to reduce race as a negative factor in the criminal justice system.

Participants brought their varying perspectives and experience that helped systematically identify the critical points of intervention for reducing racial and ethnic disparity and its collateral consequences at different stages of criminal proceedings from arraignments through sentencing. 

Academic articles on race in the criminal justice system will be published as a supplement to the convening in The New York University Journal of Legislation and Public Policy. In addition, the conference report's findings and recommendations will be published in NACDL's The Champion Magazine and widely disseminated by the sponsoring organizations.

Entrusting the Fourth Amendment to the Dogs: Canine Evidence and the Constitution

On Tuesday, October 23, NACDL hosted a panel discussion on two pending Supreme Court cases challenging law enforcement's use of drug detection dogs—Florida v. Harris and Florida v. Jardines. Oral argument took place on Wednesday, October 31, 2012 (look for updates in the next E-News). A panel of privacy and Fourth Amendment experts came together to discuss the real-world implications of these cases on the day-to-day lives of Americans. The experts addressed everything from traditional law enforcement use of canines, to use of other enhanced searching technologies, to the Court's misinformed reasoning in its prior dog sniff cases. Panelists included Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Marc Rotenberg, Executive Director, Electronic Privacy Information Center (EPIC); Danielle Spinelli, Partner and Supreme Court Litigator, WilmerHale; and Jeffrey S. Weiner, Criminal Defense Lawyer and Past President of NACDL (1991-92). NACDL President Steven Benjamin gave introductory remarks, and the panel was moderated by David G. Savage, the Supreme Court Reporter for the Los Angeles Times and Chicago Tribune. The program was live broadcast by C-SPAN and is available here. 

Susan Bozorgi of Miami, Florida, Elected to NACDL’s Board of Directors

NACDL's Board of Directors conducted a special election to fill the vacant seat on the board at its fall meeting in New Orleans on October 27, 2012. Attorney Susan Bozorgi of Miami, Florida, won that election and was sworn in as member of NACDL's Board of Directors.

Announcement of 2013 NACDL Election and Applicable Procedures

The 2013 election process for NACDL’s Board of Directors and Officer positions is about to get underway. In 2013, NACDL members will elect 13 members of the Board of Directors, as well as President-Elect, First Vice President, Second Vice President, and Secretary. Effective in 2012, the Treasurer will serve a two-year term and will be ineligible to run for other Officer or Director positions during that term. The current Treasurer was elected in 2012 for a term lasting until the 2014 Annual Meeting.

All rules governing the conduct of NACDL elections will be posted in mid-November at www.nacdl.org/Elections, and a copy of those rules may be obtained by contacting Daniel Weir at dweir@nacdl.org. The deadline to submit an application to be nominated by the Nominating Committee to Board or Officer positions is January 28, 2013.

NACDL and the Foundation for Criminal Justice Co-Sponsoring November 8-9, 2012, Program – Gideon at 50: Reassessing the Right to Counsel

Washington and Lee Law Review and the Frances Lewis Law Center announce an upcoming symposium focusing on recent developments in the area of indigent criminal defense in light of the 50th anniversary of the landmark decision of Gideon v. Wainwright. CLE credit will be available. Visit www.law.wlu.edu/gideon for more information.

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 Ivan J. Dominguez, NACDL's Director of Public Affairs & Communications, at (202) 465-7662 or idominguez@nacdl.org for further instructions.

February Hearings of NACDL’s Task Force on the Restoration of Rights and Status After Conviction

The Task Force on the Restoration of Rights and Status After Conviction will host hearings February 21-22, 2012 in Washington, DC. This will be the fourth set of hearings of the Task Force with the primary focus on governmental agencies and firms that represent employers. The Task Force will also invite those who have had their sentences commuted. If you are interested in attending the hearings, participating on a panel, or have suggestions on who should participate, please contact State Legislative Affairs Director Angelyn Frazer at afrazer@nacdl.org or (202) 465-7642.

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/.

Apply Now for White Collar Criminal Defense College at Stetson in Gulfport, Fla. – 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 complete information on how to apply, the agenda and faculty, accommodations, and more, please click here. And for further information, contact Ellen Podgor at epodgor@law.stetson.edu. Please note that enrollment is limited.

Register Now for NACDL’s Midwinter Meeting and Seminar on February 20-23, 2013 in Washington, DC – “Reasonable Doubt and Actual Innocence: Winning Your Case With Cutting-Edge Science”

This unique CLE program will occur during an unprecedented meeting of NACDL simultaneously with the annual meeting of the American Academy of Forensic Sciences (AAFS). The theme of our CLE, “Reasonable Doubt and Actual Innocence: Winning Your Case with Cutting-Edge Science,” will supplement our historical training on the confrontation of expert testimony by teaching registrants how to effectively use scientific evidence to prove their case.

On Thursday, our best trial lawyers will explain how to present a scientific defense from beginning to end - from discovery to verdict - and will introduce the factors specific to science for jury voir dire, discovery, and jury instructions that have been approved by recent ABA resolutions. The ethics involved in dealing with expert witnesses will also be addressed.

On Friday, NACDL will draw from the 4000 forensic scientists meeting across the street at AAFS to teach multiple aspects of cutting-edge science, including techniques and data routinely ignored by the government. As a singular highlight of the program, the 10 sections of AAFS will compete in 10 minute blocks to make the case for the power of their own discipline to help the defense.

Finally, as part of a special offer by AAFS to NACDL, the first 200 registrants will be given special access to the AAFS Exhibition Hall – a science fair of the newest devices, instruments, tools, and literature now available. In addition, all AAFS attendees will be encouraged to indicate their willingness to assist the defense by providing professional and contact information as an exclusive resource for our registrants.

For complete information on how to register, the agenda, faculty, and more, please click here.

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 Apple iPad. 

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.  

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 F3d 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.

“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 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 a recent two-part episode, Ivan J. Dominguez sat 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 before the U.S. Supreme Court this term. In addition, he spoke 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

NACDL EdgeNACDLcle+ is the official mobile app for NACDL's industry-leading Continuing Legal Education (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! Learn More 

In the App Storeamazon_app_store_logogoogle_play_logo 

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 Editor Ivan Dominguez collects and compiles news items of particular interest to the criminal defense bar from around the world and provides 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, some 1,250 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 listserve 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 listserve 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 listserve 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 listserve policies and guidelines.

NACDL Listserve 
The NACDL 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 listserve policies and guidelines. So far, nearly 800 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 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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