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November 25, 2013; Vol. 12 No. 11

NACDL’s Task Force on Federal Indigent Defense Holds Inaugural Meeting in Washington, DC

NACDL’s newly-established Task Force on Federal Indigent Defense held its first meeting at NACDL headquarters in Washington, DC today. At this meeting, among other agenda items, the Task Force was briefed by staff from the Defender Services Office, including Cait Clarke who heads that office. The Task Force will examine the current state of the federal indigent defense delivery system and will document the effects of sequestration. The Task Force will also evaluate the level of independence that the Office of Defender Services is afforded and will consider whether reforms are necessary to ensure adherence to the ABA’s Ten Principles of a Public Defense Delivery System. The Task Force is chaired by NACDL board member and Heeney Award recipient Bonnie Hoffman of Virginia and William Wolf of Chicago is the Vice Chair. The members of the Task Force are: Willis G. Coffey (Mount Vernon, KY), Josh A. Cohen (San Francisco, CA), Norman R. Mueller (Denver, CO), David E. Patton (New York, NY), David M. Porter (Sacramento, CA), Cynthia W. Roseberry (Macon, GA), Kim A. Taylor-Thompson (New York, NY), Susan J. Walsh (New York, NY), and Lisa Monet Wayne (Denver, CO).

The creation of the Task Force is the latest in a series of efforts by NACDL to address the devastating effects that sequestration is having on the ability of federal defenders and CJA panel attorneys to provide effective representation. One such event, which was held on Constitution Day 2013, was a briefing on Capitol Hill. Norman Lefstein, Professor of Law and Dean Emeritus at Indiana University Robert H. McKinney School of Law, one of the nation’s leading experts in the field of indigent was among the panelists at the briefing. A few weeks after the event, Professor Lefstein shared his views on the federal indigent defense crisis with NACDL's Podcast Series "The Criminal Docket," which features a regular rundown of highlights in criminal justice news and continuing examination of topical issues with leaders in law, public policy and journalism.

Listen to Episode 35: Professor Norman Lefstein on the Federal Indigent Defense Crisis. Past episodes of "The Criminal Docket" are available for free at http://www.nacdl.org/thecriminaldocket/ or in the Apple iTunes store.


Racial Disparities Conference

On Friday, December 6, NACDL, the Foundation for Criminal Justice, the Brennan Center for Justice, the Association of Prosecuting Attorneys, the Center for Nu Leadership on Urban Solutions, and the New York County Lawyers’ Association will host an all-day convening entitled Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System: Advancing the Reform Dialogue Through Action. This event is a follow-up to the October 2012 conference on racial and ethnic disparities in New York City.  

The event will include a review of the "best practices" outlined in the October 2012 conference report, Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System. It will also feature several panels with leading scholars whose work will be published by the New York University Journal of Legislation & Public Policy in a special series on the issue of race and ethnic disparity in the criminal justice system.

Register for the conference here. A webcast of the conference will also be available. Please send an email to scjn@nacdl.org for information on how to view the conference online, or if you have any other questions related to the event.

NACDL's Shana Regon Speaks on Overcriminalization at ABA Criminal Justice Institute

On October 31, NACDL Director of White Collar Crime Policy Shana-Tara Regon spoke on a panel entitled "Fixing a Broken System: An Update on the Work of the Bipartisan House Judiciary Task Force on Over-Criminalization" at the ABA's Criminal Justice Section's Sixth Annual Fall Institute on Sentencing, Reentry, Juvenile Justice and Academics in Washington, DC. The panel was moderated by Professor Stephen Saltzburg, and also featured Ron Legrand, Democratic Counsel, Committee on the Judiciary, U.S. House of Representatives; Caroline Lynch, Majority Counsel, Committee on the Judiciary, U.S. House of Representatives; Percy Pitzer, Executive Vice President and CEO, Creative Corrections; and Mary Price, General Counsel, Families Against Mandatory Minimums.

Congressional Task Force on Overcriminalization Holds Fourth Hearing

On November 14, the Congressional Task Force on Overcriminalization held its fourth hearing. Composed of five Democrats and five Republicans, the Task Force was created on May 7, 2013, by a unanimous vote of the House Committee on the Judiciary. The Task Force was charged to "conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions."

The topic of the hearing was "Regulatory Crime: Solutions." Mr. John S. Baker, Jr., Ph.D., Visiting Professor at Georgetown Law School and Mr. Lucian E. Dervan, Assistant Professor of Law at Southern Illinois University School of Law testified at the hearing.

Links to the video and written testimony from all four hearings can be found here.


NACDL Hosts Educational Webinars on NSA and FISA

NACDL recently hosted two webinars concerning the recent revelations of the widespread NSA surveillance program. Both webinars are now available for free online here.

The first webinar – How to Challenge NSA Terrorism Spying in Non-Terrorism Cases: A Primer on The NSA/DEA Special Operations Division Information Sharing Program with Joshua Dratel and Barry J. Pollack – was recorded on October 31. The webcast followed August’s revelation by reporters at Reuters that the Drug Enforcement Agency (DEA) has a Special Operations Division (SOD) that shares information gathered via National Security Agency (NSA) terrorism spying authorities with state and local law enforcement agencies to use in non-terrorism criminal investigations. The SOD then encourages those local agencies to use "parallel construction," or lawful reasons to investigate the tips shared with them, without ever mentioning the tip in investigation files, or even sharing the information with prosecutors, defense lawyers, or judges. Such information sharing has led to convictions for violations of the Internal Revenue Service Code, the Foreign Corrupt Practices Act, and Environmental Protection Agency regulations, to name a few. This webinar instructs criminal defense lawyers on how to raise challenges to this information sharing program in pending and closed cases, including discovery requests, motions to compel, and motions for new trial.

The second webinar –  The NSA Leaks: FISA 702 and PATRIOT 215 Litigation Strategies with Joshua Dratel, Thomas A. Durkin, and Ahmed Ghappour – was recorded on November 8. Following leaks this summer by former NSA contractor Edward Snowden, the public became more aware of surveillance authorities the government has asserted under Section 215 of the PATRIOT Act (the business records, or telephony metadata, provision) and Section 702 of the Foreign Intelligence Surveillance Act (FISA), enabling warrantless surveillance programs such as PRISM, as reported by the Washington Post. In the weeks following these disclosures, Administration officials testified before Congress offering up a handful of cases as examples of the programs’ successes. These cases included the case of four San Diego men recently convicted of providing material support to terrorism, and Adel Daoud, a 19-year-old Chicago man accused of plotting to bomb a downtown Chicago bar. Interestingly, the government failed to provide notice in both cases of its use of these surveillance authorities against the defendants. This webinar features defense lawyers from both cases, who walk viewers through the revelations in their cases, what steps they have taken, and litigation strategies for defense lawyers in similarly situated cases.


Restoration of Rights Database has the Latest Developments in Relief from the Collateral Consequence of Conviction

NACDL’s online Restoration of Rights Resource now has all new materials to keep the public informed of laws and policies intended to minimize the adverse effect of the collateral consequences of criminal conviction. NACDL member and former U.S. Pardon Attorney Margaret Colgate Love’s comprehensive research details relevant laws and practices in each U.S. jurisdiction that avoid or mitigate collateral consequences. The resource has been entirely revised to bring up to date the profiles of each U.S. jurisdiction and the nationwide comparison charts. Although everyone will want to obtain the latest information for their particular jurisdiction in this dynamic area of law, they may also find it useful to review developments in states that have been especially active in the past year in addressing barriers to re-entry and restoration of rights, including Colorado, Georgia, Indiana, Ohio, Minnesota, and New Jersey.  

The user-friendly format features an interactive map leading to short summaries and full profiles of laws and policies in each jurisdiction and the federal system that enable defendants to avoid collateral consequences through non-conviction dispositions like deferred adjudication, and to mitigate them through pardon and expungement and certificates of good conduct.  The state-by-state profiles also discuss loss and restoration of civil rights and firearms privileges in each state, and how state and federal firearms laws interact.  Finally, each profile also discusses relevant nondiscrimination provisions and systemic limits on consideration of criminal records in employment and licensing, including so-called ban-the-box laws and employer protections against negligent hiring lawsuits. 

These materials are essential for lawyers working to minimize a client’s exposure to collateral consequences and to assist clients in regaining their legal rights and status after conviction, and an invaluable supplement to NACDL’s new treatise on this topic jointly authored by Ms. Love, Jenny Roberts, and Cecelia Klingele: Collateral Consequences of Criminal Convictions: Law Policy and Practice (NACDL/West 2013).   


The Champion Special Issue on Brady at 50 Wins Prestigious Award

The May 2013 issue of NACDL’s The Champion Magazine – Perspectives on Brady at 50 – has been presented with min’s 2013 Editorial & Design Award in the category of Print/Online Coverage of Single Topic. The winners were announced on Tuesday, November 18, 2013 at min’s Editorial & Design Awards Breakfast at the Grand Hyatt in New York City. Min (Media Industry News) is a leading media industry publication and has been covering the magazine industry for over 65 years. Winners in other categories at the 2013 Editorial & Design Awards included O, the Oprah Magazine; Time; Food & Wine; Cosmopolitan; Harper’s Bazaar; and Better Homes and Gardens.

The May 2013 issue of The Champion commemorated the 50th anniversary of Brady v. Maryland, the 1963 Supreme Court decision holding that the U.S. Constitution requires prosecutors to provide a person accused of crime with all favorable information that might affect the case. The issue, which was entitled "Violated: Brady Noncompliance - An American Injustice," featured several special articles looking at the history of discovery, the significance of the Brady decision and the ongoing struggle to make the promise of Brady a reality. Contributors included leading practitioners, scholars, and NACDL policy staff.

Read more about this impressive achievement here.


Baldwin Bill to Reform use of FISA Surveillance in Criminal Cases

On November 14, Senator Tammy Baldwin (D-WI) introduced S. 1701 the Freedoms and Privacy Act of 2013. The bill seeks to "[e]nsure that all FISA-derived information used in a criminal investigation is made available to the defense…." The bill would also require the government to publicly disclose the minimization procedures used under the FISA programs (i.e. 215 bulk collection and 702 content collection) and "permit FISA authorities to be used to collect information only if the ‘the primary purpose of acquisition’ of information is for ‘foreign intelligence’ purposes." NACDL supports this bill.


Drone Privacy Bill Reintroduced by Senator Markey

On November 4, Senator Edward J. Markey (D-MA) introduced The Drone Aircraft Privacy and Transparency Act, S. 1639 "to ensure standards for informing the public about the location, timing and ownership of unmanned aerial vehicles (i.e., ‘drones’)." The bill also "establishes safeguards to protect the privacy of individuals from expanded use of commercial and government drones," and "require[s] privacy protection provisions relating to data collection and minimization, disclosure, warrant requirements for law enforcement, and enforcement measures in the licensing and operation of drones." NACDL supports this bill. 

NACDL's Domestic Drone Information Center features all the latest news on domestic drones.


NACDL Supports two Important Pieces of Legislation in Need of Co-Sponsors

Smarter Sentencing Act of 2013: Introduced by Senator Dick Durbin and co-sponsored by Senator Patrick Leahy and Senator Mike Lee, the Smarter Sentencing Act of 2013 would expand the federal safety valve, reduce mandatory minimum drug sentences and provide full retroactivity for the reduced crack sentence passed by Congress in 2010 as part of the Fair Sentencing Act. Click here to send a letter to your Senators urging co-sponsorship of the Smarter Sentencing Act of 2013.

National Center for the Right to Counsel Act: Introduced by Representative Theodore Deutch and co-sponsored by Representative John Conyers, Representative Bobby Scott, and Representative Joe Courtney, the National Center for the Right to Counsel Act would establish a private, non-profit center to provide financial support to supplement funding for public defense systems, provide financial and substantive support for training programs that aim to improve the delivery of legal services to indigent defendants, create geographically-based "regional backup service centers" which would provide public defenders with access to investigators and sentencing mitigation experts as well as information on available financial grants, and form a nine-person "State Advisory Council" in each state to monitor the quality of public defender services and ensure compliance with the Act. Click here to send a letter to your Representative urging co-sponsorship of the National Center for the Right to Counsel Act.


Resolution Supporting the Sixth Amendment Passes the House

H. Res. 196, Supporting the Sixth Amendment to the United States Constitution, the right to counsel, passed the House of Representatives by a voice vote on November 13. The resolution expresses support for (1) the Sixth Amendment to the Constitution, the right to counsel; and (2) strategies to improve the criminal justice system to ensure that indigent defendants in all felony cases are adequately represented by counsel. 

Members Invited to Participate in NACDLConnect Focus Group

NACDL is launching a focus group to identify the benefits and challenges of using the NACDLConnect online discussion communities. Where there are issues with NACDLConnect that can be addressed through better education for members, or through modifications to the system, NACDL will work with members and with Higher Logic to address them. 

NACDL is now seeking volunteers to participate in this focus group. The requested time commitment will be up to two hours for the first meeting, with the possibility of additional meetings thereafter. Focus group members can participate in person at NACDL’s DC office, by phone, or via video conference. Members who like using NACDLConnect and members who do not are encouraged to volunteer. Members who are interested in participating should contact NACDL's Membership Director Michael Connor at 202-465-7654 or mconnor@nacdl.org.

NACDL Edge Upgrade

NACDL is delighted to announce an upgrade to the NACDL Edge app for iOS and Android.  The Champion section of the app, which currently offers just the current issue, will now provide on-the-go access to the complete online archive of The Champion. Users will be able to search or browse past issues at will, as long as they are connected to a wi-fi or wireless network. The newsfeed will also offer a full seven days of news stories, and members will be able to download more by simply tapping a button at the bottom of the screen. 

These enhancements will be available before the end of the year, and the app will upgrade automatically on most devices.

Al Jazeera Reporter Seeking Victims of Civil Asset Forfeiture
A reporter for the Al Jazeera program People & Power is currently producing a documentary on the impact of the "War on Drugs" and would like to speak with individuals who have been victims of Civil Asset Forfeiture. The reporter is looking for anyone who has had their assets seized because of a minor drug charge or a false drug charge. Please contact Lisa Desai at deslisa@gmail.com or (646) 752-7032 for more information.

In Other News

Upcoming CLE Events
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Updates to Domestic Drone Information Center
View Drone Center

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