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February 28, 2014; Vol. 13 No. 02

Member Assistance Requested to Combat Trial Penalty Project

NACDL has undertaken a project to expose the trial penalty – the enormous tax that is imposed upon accused persons who avail themselves of the right to a trial. The project will especially focus on the vast discrepancy between post-trial sentences and the sentences that are offered as part of a plea agreement. This project builds on a report recently issued by Human Rights Watch, which comprehensively exposed the trial penalty in federal drug cases. The Human Rights Watch report can be found here. And you may listen to podcast describing the report on NACDL’s The Crimnal Docket here.

The NACDL project, which is spearheaded by Vice President Barry Pollack, and which is supported by a pro bono team of researchers from Skadden Arps, is seeking firsthand accounts of the trial penalty in all federal cases, other than drug cases. This could include situations where a client received a far more severe sentence after trial than similarly situated co-defendants who pled guilty, or any case in which a prosecutor sought severe enhancements after a client declined to plead guilty, or it could include cases where a person who was arguably innocent opted to plead guilty because of the likelihood that the sentence, if convicted after a trial, would be more severe. 

The project depends upon the support of NACDL members and other defense lawyer in sharing their stories of the trial penalty in practice. If you have one or more examples, please visit http://www.nacdl.org/trialpenalty/ for more information about the project and to complete a questionnaire.

NACDL Files Complaint in Federal Court Seeking Disclosure of DOJ Criminal Discovery Blue Book

On February 21, NACDL filed a complaint in the U.S. District Court for the District of Columbia seeking full disclosure of the DOJ’s Federal Criminal Discovery Blue Book. The Blue Book was published by the DOJ’s Office of Legal Education following the furor over "egregious misconduct" by DOJ prosecutors in the case of the late Senator Ted Stevens, whose conviction was vacated after post-trial investigations revealed that prosecutors had withheld significant exculpatory evidence from the defense. The Blue Book, however, has never been made public, despite numerous attempts by NACDL to ensure its release. In December 2012, NACDL filed a Freedom of Information Act (FOIA) request with the DOJ seeking the disclosure of the Blue Book. NACDL’s FOIA request was denied in February 2013, purportedly on various privilege-based and law enforcement grounds. NACDL appealed that denial in April 2013, and was denied again in June 2013. To date, DOJ declines to disclose the Blue Book.

On the day NACDL filed its complaint, NACDL President Jerry J. Cox said: "The public has every right to know what is in the DOJ’s Federal Criminal Discovery Blue Book. The due process rights of the American people, and how powerful federal prosecutors have been instructed as relates to the safeguarding of those rights, is a matter of utmost Constitutional concern to the public. The 'trust us' approach is simply unacceptable. And it is certainly an insufficient basis upon which to resist bipartisan congressional interest in codifying prosecutors’ duty to disclose."

Kerri L. Ruttenberg, a partner in the Washington, DC office of the Jones Day law firm, is lead counsel to NACDL in this matter and is working with a team of lawyers from her firm.

Read more about NACDL’s efforts to secure the release of the Blue Book here.


NACDL Releases Video Series for Journalists Covering Criminal Justice

Earlier this week, NACDL released a new series of tutorial videos aimed at assisting journalists interested in covering the criminal justice system. Criminal Justice and the Media is a three-part series exploring how journalists can effectively inform the public on what is one of the most important, dynamic and omnipresent forces in American society. Some of the finest journalists in the country joined with NACDL to create this exciting project, including, Linda Deutsch (Associated Press), Gary Fields (Wall Street Journal), Carrie Johnson (National Public Radio), Adam Liptak (New York Times), and David Savage (Los Angeles Times & Chicago Tribune).

NACDL Executive Director Norman Reimer said: "Criminal law is an integral part of all aspects of American life. It is used to impose a vast network of social and regulatory controls over the people. It is, therefore, critical that the public have a solid understanding of the criminal law and the constitutional principles that shape it. And we cannot have an informed public without journalists who truly understand the criminal justice system and how it operates. We hope that this new series will be an invaluable aid to aspiring journalists, as well as experienced journalists transitioning into criminal justice reporting. Our ultimate goal is a public that is better informed and more keenly attuned to the nuances of the nation’s criminal justice system." 

NACDL gratefully acknowledges the Park Foundation and the Foundation for Criminal Justice for their support of this project. More information and all three parts of the video series are available free on NACDL's website at http://www.nacdl.org/coveringcriminaljustice/.


Applications Open for 2014 NACDL Election

In 2014, NACDL members will elect nine members of the Board of Directors, as well as President-Elect, First Vice President, Second Vice President, Treasurer, and Secretary. If you are interested in running for a Board or Officer position, please submit an application to NACDL’s Nominating Committee by April 14, 2014 at 5pm ET. All rules governing the conduct of NACDL elections as well as instructions for submitting applications to the Nominating Committee are available at www.nacdl.org/elections.


Task Force on Restoration of Rights and Status after Conviction Seeks Stories

Over the past two and half years, NACDL's Task Force on Restoration of Rights and Status after Conviction has examined how legal mechanisms for relief from the collateral consequences of conviction are actually working, in state and federal systems. In May 2013, the Task Force completed a series of six hearings, held across the nation, where members heard testimony from key stakeholders concerned with collateral consequences and the relief mechanisms available to individuals with a conviction. The Task Force is now in the final stage of preparing a report that will identify the best practices that help facilitate the full restoration of rights and status of an individual following a conviction. The report will also provide policy recommendations that jurisdictions on the state and federal level can implement to help ensure that those with convictions can be put on a path to secure the full restoration of their rights and status. 

As a part of this report and its rollout, the Task Force would like to include stories from individuals who have lost their rights as a result of a plea or a guilty verdict. The Task Force encourages members whose clients, former clients, or other relevant contacts might be interested in participating in this important project to forward this link to enable such persons to complete a short online survey documenting how he/she has been affected by the collateral consequences of a conviction. To complete the survey and learn more, visit http://www.nacdl.org/restorationsurvey/.


NACDL Racial Disparity Project Continues

Since 2012, NACDL, along with the Brennan Center for Justice, the New York County Lawyers' Association, the Center for NuLeadership on Urban Solutions and the Association of Prosecuting Attorneys, has embarked upon an important and timely project addressing racial and ethnic disparities within the criminal justice system. Elements of the project have included the October 2012 convening on eliminating racial and ethnic disparities in the criminal justice system, a report detailing recommendations generated from the convening, a series of articles on race published in NACDL’s The Champion magazine, three podcast episodes featuring organizers of the conference discussing the goals and objectives of the convening and report, a second convening in December 2013 entitled Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System: Advancing the Reform Dialogue Through Action,and a series of academic articles in the New York University Journal of Legislation and Public Policy. The Journal series, which was published last month, features articles from leading academics on the issue of race and ethnic disparity in the criminal justice system. In addition many of the academics participated on panels related to their articles. For more information about the project, please visit www.nacdl.org/racialjustice.


NACDL Post-Conviction Counsel Lindsay Herf Speaks about Interrogations and False Confessions

NACDL Post-Conviction Counsel Lindsay Herf spoke about interrogations and false confessions to the Jurisprudence section of the American Academy of Forensic Sciences at its annual conference in Seattle on February 22. The talk focused on the psychological break-down that can occur during an intense interrogation and sometimes lead to an innocent person confessing to a crime s/he did not commit. The last 20 years of documented exoneration cases demonstrate false confessions play a role in just over 20 percent of wrongful convictions nationwide. The talk explained how a false confession can be obtained and why all stakeholders in the criminal justice system need to be aware of the dangers in relying on such evidence in criminal cases.


NACDL State Criminal Justice Network seeks nominations for The Champion of State Criminal Justice Reform Award

The NACDL Champion of State Criminal Justice Reform Award recognizes an individual or group whose exceptional efforts have led toward progressive reform of a state criminal justice system. Please click here to download criteria for 2014 award. Nominations are due June 6.


NACDL Applauds Reauthorization of Bipartisan Congressional Task Force on Overcriminalization

On February 5, the House Judiciary Committee adopted a resolution reauthorizing the bipartisan Overcriminalization Task Force for an additional six months, through August 5. According to a press release issued by the House Judiciary Committee, the Task Force will continue to be evenly comprised of Democratic and Republican Members of Congress. The Task Force is led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wisc.) and Ranking Member Bobby Scott (D-Va.).

Since the Overcriminalization Task Force was first authorized last May, it has held four substantive hearings on Capitol Hill, with NACDL leadership testifying as witnesses at two of those hearings. Links to webcasts of all four of the Task Force’s hearings and the written testimony of all of the witnesses are available at www.nacdl.org/overcrimtaskforce. To learn more about NACDL’s extensive work on the problem of overcriminalization in America, visit www.nacdl.org/overcrim.

The Overcriminalization Task Force’s fifth hearing is scheduled for this morning. The topic of the hearing is “Criminal Code Reform.” A webcast of the hearing can be found here.


Sex Offender Registration, Forfeiture, Deportation: The True Consequences of a Conviction

The issues affecting your clients do not end with sentencing—far from it. Indeed, as courts rely on defense counsel to inform their clients of the consequences associated with their conviction, you must have a solid understanding and all the available information to do this effectively. Without these tools, it can be devastating to your client and possibly your practice, whereas, lawyers who know about collateral consequences can often mitigate them or get better pleas.   

Join your NACDL colleagues in New Orleans the week of Mardi Gras for NACDL's 2014 Collateral Consequences Conference & Midwinter Meeting, presented in cooperation with the Defending Immigrants Partnership, to arm yourself with the tools to be a more effective advocate for your clients at the critical, but often neglected, post-conviction stage of their struggle.      

The event will be held at the InterContinental Hotel in New Orleans, LA, March 5-8, 2014.

Watch a short video about this important seminar here.

Learn more or register today here.

Apply Now for White Collar Criminal Defense College at Stetson in Gulfport, Fla. – March 19-22, 2014

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. This program offers up to 22.5 General / 2.0 Ethics CLE credits. 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 further information, contact Ellen Podgor. Please note that enrollment is limited and subject to application and approval. For complete information on how to apply, the agenda, faculty, accommodations, and more, please click here.  


Free Training for Lawyers Handing Post-Conviction Innocence Claims – Portland, Oregon, April 10, 2014

NACDL’s 5th Annual Post-Conviction Conference,When the “Truth” is Found to be Lies: Litigating Faulty Forensics & False Confessions, will be held on April 10 in Portland, Oregon. NACDL presents this exciting new program, in collaboration with the Innocence Network and it is supported by a grant from the Bureau of Justice Assistance, specifically for lawyers who handle post-conviction innocence claims. The exceptional faculty will provide in-depth instruction on litigating Daubert and Frye challenges to unfounded medical evidence and other unreliable forensic evidence. The faculty will also discuss avenues for post-conviction relief (newly discovered evidence, false evidence) based on erroneous microscopic hair comparison evidence. The afternoon sessions will focus on investigating and litigating false confession cases, including obtaining and using experts and strategies to pursue these innocence claims in both state and federal court. This program is FREE for approved applicants and a limited number of need-based travel scholarships are available.

For more information and to download a registration application, click here.


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