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March 31, 2014; Vol. 13 No. 03

Member Assistance Requested for Trial Penalty Project

NACDL has undertaken a project to expose the federal trial penalty – the enormous tax that is imposed or threatened to be imposed upon accused persons who avail themselves of the right to a trial. The project will focus on the vast discrepancy between post-trial sentences and the sentences that are offered as part of a plea agreement, and the multiple ways that prosecutorial power is used to extract guilty pleas or disproportionately punish those who dare to take their case to trial. 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 a podcast describing the report on NACDL’s The Criminal 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; it could also include cases where a person who was arguably or actually innocent opted to plead guilty because of the likelihood that the sentence, if convicted after a trial, would have been far more severe. 

The project depends upon the support of NACDL members and other defense lawyers 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.


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 NACDL’s reform and public education efforts in this area, the Task Force is looking for more 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 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/.


Redefining Indigence: Comprehensive National Report Reveals How States Decide Who is “Too Poor” to Hire a Lawyer

Marking the 51st anniversary of the Supreme Court's landmark decision in Gideon v. Wainwright, NACDL recently released a report revealing various ways states restrict access to counsel. In particular, states do so by applying unrealistic eligibility guidelines and imposing myriad fees when people are deemed eligible for assigned counsel. Prepared by NACDL’s Indigent Defense Counsel John Gross, Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel documents how the widely-held belief that if you cannot afford an attorney one will be provided to you free of charge is simply not true. The report is as a stark reminder that much work remains to secure the meaningful protection of the Sixth Amendment right to counsel. 

Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel is the second part of NACDL's study, Gideon at 50: A Three-Part Examination of Indigent Defense in America. Links to this report as well as to part one of this project -- Rationing Justice: The Underfunding of Assigned Counsel Systems -- are available at www.nacdl.org/gideonat50. And to access additional resources and learn more about NACDL's extensive work in the area of indigent defense, please visit www.nacdl.org/indigentdefense.


NACDL Joins Letter to U.S. Senators Concerning Attacks on DOJ Civil Rights Division Nominee Debo Adegbile

While NACDL does not take positions on political nominees, it does strongly deplore attacks on any attorney, including political nominees, arising out of the attorney’s representation of a client in a criminal matter. That, however, is precisely what happened in the case of Debo Adegbile, who was nominated for the position of Assistant Attorney General for Civil Rights at the Department of Justice. On March 13, NACDL joined with the National Lawyers Guild, the National Legal Aid & Defender Association, and numerous other legal organizations to express profound disappointment in the attacks on Mr. Adegbile predicated on his appellate representation of former death row inmate Mumia Abu-Jamal. 

The full text of the letter can be found here.


NACDL Special and Regular Election Announcement

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. 

NACDL’s Board of Directors will also fill a current vacancy at a special election in Las Vegas on May 18, 2014. Please see www.nacdl.org/elections for more information.


Manuel D. Vargas, Senior Counsel at the Immigrant Defense Project, Receives NACDL Lifetime Achievement Award

On March 6, NACDL presented Manuel D. Vargas, senior counsel at the Immigrant Defense Project, with its Lifetime Achievement Award. The award was presented by NACDL President Jerry J. Cox at the opening of NACDL’s 2014 Midwinter Seminar & Meeting, which was devoted entirely to the subject of the collateral consequences of conviction. 

For more than two decades, Manny Vargas has been a leader in the fight to protect the rights of non-citizens ensnared in America’s massive criminal justice system. He has led the criminal defense bar in coming to grips with the profound immigration consequences that may flow from virtually every encounter that an immigrant has with law enforcement. Indeed, Vargas was an initiator of the Deportation Defense Initiative, a massive pro bono effort in support of immigrant rights, and he co-founded the Defending Immigrant Partnership, a national collaboration to provide legal training and back up support for the defense bar. That partnership, of which NACDL is a proud member, is a sponsor of the collateral consequences seminar at which Vargas received the award.

In presenting Vargas with NACDL’s Lifetime Achievement Award, NACDL President Jerry J. Cox said: "It is no exaggeration to say that through his vision, leadership and his commitment to teaching his profession, Manny Vargas has literally improved the lives of thousands who followed their dreams to America. His impact will be felt in countless families for generations to come. Thanks to Manny Vargas, generations of proud Americans will look up to parents and grandparents whose ability to live in this country he made possible. And that, my friends, is truly a lifetime achievement."

More information on the Lifetime Achievement Award and Manny Vargas is available here.


Noted Defense Attorneys John Keker, Jan Nielsen Little Receive White Collar Criminal Defense Award from NACDL, Stetson Law

On March 22, NACDL presented John Keker and Jan Nielsen Little with the 2014 White Collar Criminal Defense Award at Stetson University College of Law in Gulfport, Fla. Keker and Little received their awards during NACDL’s White Collar Criminal Defense College at Stetson. The White Collar Criminal Defense Award is presented annually to individuals who have made a profound impact on the field of white collar criminal defense advocacy. 

Keker and Little are partners at the San Francisco, Calif., law firm of Keker & Van Nest LLP. They have worked together on numerous high-profile white collar criminal cases, including former Enron CFO Andrew Fastow who was charged with over 100 counts of securities fraud and other crimes. The pair have also represented Mississippi plaintiffs’ attorney Dickie Scruggs and investment banker Frank Quattrone. In 1995, they obtained an acquittal at trial for San Francisco attorney Patrick Hallinan, charged with RICO and drug conspiracy offenses.

Presenting the award, NACDL Executive Director Norman Reimer said: "This year’s recipients of NACDL's White Collar Criminal Defense Award, John Keker and Jan Nielsen Little, partners at Keker & Van Nest LLP, are truly a dynamic duo. They are two lawyers of extraordinary talent and tenacious resolve who not only excel in advocacy for their clients, but excel also in setting the highest standards of professionalism and service to their colleagues in the defense bar and society at large."

More information about the White Collar Crime Award and this year’s winners is available here.


NACDL Submits Comments on Sentencing Guidelines

On March 18, NACDL submitted comments to the U.S. Sentencing Commission on the 2014 Proposed Amendments to the Sentencing Guidelines. In its comments, NACDL strongly supported a proposal that, if adopted, would shorten prison sentences for drug offenders and addressed several other proposed amendments. NACDL’s comments were prepared by NACDL’s Sentencing Committee, which is chaired by JaneAnne Murray and Marjorie Peerce.

A complete copy of the comments can be found here.


Suggest Topics for State Advocacy Calls

NACDL’s State Criminal Justice Network (SCJN) conference call series is entitled “National Advocacy Calls on Developing Legislation (NACDL).” The teleconferences feature experts on a variety of issue areas and are designed to educate criminal defense lawyers and advocates across the country on a variety of criminal justice issues. If you have ideas for future calls, please send an email to scjn@nacdl.org.


Save the Date: 13th Annual State Criminal Justice Network Conference

NACDL’s State Criminal Justice Network (SCJN) brings together advocates working on a wide variety of state level criminal justice issues from around the country. The conference will be held Thursday, July 31-Friday, August 1, in Philadelphia, Pennsylvania. Topics will include: institutional racism, discovery reform, juvenile justice, indigent defense, restoration of rights and more. For more information or to serve as a panelist please contact Angelyn C. Frazer at afrazer@nacdl.org.


Foundation for Criminal Justice to Host Gala Dinner

The Foundation for Criminal Justice presents Celebrating Liberty’s Last Champions™: Guardians of the Constitution, a gala event to celebrate the tens of thousands of criminal defense lawyers across the country who dedicate their careers to guarding the fundamental protections of the Constitution. Kerry Kennedy, human rights activist and author, is scheduled to deliver remarks. The event will take place on August 1, 2014, during NACDL’s Annual Meeting and Seminar, at 7:00 p.m. at Philadelphia’s National Constitution Center. Details are available at http://www.nacdl.org/foundation/philadelphia2014.


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.


Reauthorized Congressional Overcriminalization Task Force Holds Two Hearings in Four Weeks

On February 5, 2014, the House Judiciary Committee adopted a resolution reauthorizing the bipartisan Overcriminalization Task Force for an additional six months, through August 5, 2014.

On February 28, the reauthorized Task Force held its first hearing of 2014, and the subject was "Criminal Code Reform." The witnesses who testified at that hearing were:

  • Mr. John D. Cline, Law Office of John D. Cline
  • Professor Roger A. Fairfax Jr., George Washington University Law School
  • Professor Julie Rose O'Sullivan, Georgetown Law Center
  • Mr. Michael Volkov, CEO, The Volkov Law Group LLC

Then, on March 27, the Task Force held its second hearing of 2014, and the subject was "Overfederalization." The witnesses who testified at that hearing were:

  • Mr. Joseph I. Cassilly, National District Attorneys Association
  • Professor James Strazzella, Temple University School of Law

Since the Congressional Overcriminalization Task Force was first authorized in May of 2013, it has held six substantive hearings on Capitol Hill, with NACDL leadership testifying as witnesses at two of those hearings. Links to webcasts of all six of the Task Force’s previous hearings and the written testimony of all of the witnesses are available at www.nacdl.org/overcrimtaskforce. And to learn more about NACDL’s extensive work on the problem of overcriminalization in America, visit www.nacdl.org/overcrim.


NACDLConnect Member Discussion Groups

Have you tried NACDLConnect yet? This is NACDL’s member communication platform, which you can use through the NACDLConnect website at http://connect.nacdl.org, or via email. Network, share information, and discuss strategy with some of the most knowledgeable, best-connected criminal defense lawyers in America. Exclusively for members, you can also use NACDLConnect to subscribe to the Daily Criminal Justice Briefing, comprising stories from journals and major media that affect the practice of criminal defense. 

Call the membership hotline at 202-872-4001 if you’d like assistance.


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