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August 27, 2014; Vol. 13 No. 08

Theodore 'Ted' Simon Sworn in as 2014-15 President of Nation’s Criminal Defense Bar

Theodore "Ted" Simon was sworn in on Saturday, August 2, as President of NACDL at the Association’s 57th Annual Meeting in Philadelphia. An NACDL member since 1979, Simon previously served the Association as its President-Elect, Secretary, Treasurer, First- and Second Vice President, as well as on the Association’s Board of Directors. He is also a Trustee of the Foundation for Criminal Justice and was Chair of the well-attended, highly-successful and inspirational 2014 Foundation for Criminal Justice Awards Dinner, which was held August 1 at the National Constitution Center.

Simon is an attorney in private practice in Philadelphia, where he has based a local, national and international practice for the last 40 years. He has obtained reversals in the U.S. Supreme Court and in the Pennsylvania Supreme Court. In addition to representing individuals and corporations in state and federal trial and appellate proceedings, Simon is a leading authority on the representation of Americans abroad and securing their outright release from custody, as well as on the application of prisoner transfer treaties here and abroad, achieving remarkable success in obtaining the transfer of numerous foreign nationals. He has also successfully defended international extradition requests.

Simon has long been a devoted member of NACDL and he served as a Co-Chair of NACDL's 50th Anniversary Gala Event and on the Steering Committee of the Capital Campaign for the Foundation for Criminal Justice. His service in both of those roles was recognized by two of his many NACDL presidential commendations. Among Simon’s numerous other leadership roles at NACDL are his tenure as Co-Chair of NACDL’s International Affairs Committee, his service on the NACDL Budget Committee, his authorship of the "Tips and Tactics" column for The Champion, and his instrumental roles on a broad range of NACDL task forces over the years. Mr. Simon also is a member of the Board of Directors of Philadelphia’s Jenkins Law Library, America’s first law library.


2014-15 Officers and Newly Elected Members of the Board of Directors Sworn in at Annual Meeting

NACDL announced its new officers and directors at its Annual Board and Membership Meeting in Philadelphia on August 2, 2014. In addition, two Board representatives were selected to serve on the Executive Committee and Nina J. Ginsberg (Alexandria, VA) was appointed Parliamentarian by NACDL President Theodore Simon. 

Executive Committee

President: Theodore Simon (Philadelphia, PA)
President-Elect: E.G. Morris (Austin, TX)
First Vice President: Barry J. Pollack (Washington, DC)
Second Vice President: Rick Jones (New York, NY)
Treasurer: William H. Buckman (Moorestown, NJ)
Secretary: Drew Findling (Atlanta, GA)
Immediate Past President: Jerry Cox (Mt. Vernon, KY)
Board Representative: Nellie L. King (West Palm Beach, FL)
Board Representative: Christie Williams (Austin, TX)

Board of Directors  

Daniel N. Arshack (New York, NY)
Nicole DeBorde (Houston, TX) (to be installed)
Marissa L. Elkins (Northampton, MA)
Michael P. Heiskell (Fort Worth, TX) 
Tyrone C. Moncriffe (Houston, TX) 
Melinda M. Sarafa (New York, NY) 
Robert S. Toale (Gretna, LA) 
Deja Vishny (Milwaukee, WI)


Cynthia Orr Receives 2014 Heeney Award

On August 1, NACDL President Jerry J. Cox presented attorney Cynthia Eva Hujar Orr with the Robert C. Heeney Award. The award was presented at the National Constitution Center in Philadelphia during the Foundation for Criminal Justice's gala Celebrating Liberty’s Last Champions™: Guardians of the Constitution. The Heeney Award is given annually to the member who best exemplifies the goals and values of the Association and the legal profession. Orr, whose practice is based in San Antonio, Texas, was NACDL President from 2009-10 and has served NACDL in every officer position and has held numerous other positions of leadership within the Association. Click for video of the award presentation.


Rick Jones Receives Champion of Justice Award

On August 1, NACDL President Jerry J. Cox presented attorney Rick Jones with the Champion of Justice Award. The award was presented at the National Constitution Center in Philadelphia during the Foundation for Criminal Justice's gala Celebrating Liberty’s Last Champions™: Guardians of the Constitution. The Champion of Justice Award recognizes individuals who -- through legislative, journalistic or humanitarian pursuits -- have staunchly preserved or defended the constitutional rights of American citizens and have endeavored to ensure justice and due process for persons accused of crime.  Jones is NACDL’s Second Vice President and is currently a practicing criminal defense lawyer in New York City, where he is the Executive Director and a founding member of the Neighborhood Defender Service of Harlem. Click for video of the award presentation.


Maureen Cain Presented with Champion of State Criminal Justice Reform Award

On July 31, attorney Maureen Cain, Policy Director of the Colorado Criminal Defense Bar, was presented with the Champion of State Criminal Justice Reform Award at NACDL’s 13th Annual State Criminal Justice Network conference in Philadelphia. The award honors those whose exceptional efforts have led toward progressive reform of a state criminal justice system. Ms. Cain was recognized for her diligent efforts in promoting criminal and juvenile justice reform in Colorado and through her advocacy for the rights of the accused.


In Landmark Decision, Kentucky Supreme Court Upholds Ethics Opinion Barring Plea Agreements Containing Waivers of Ineffective Assistance of Counsel Claims

In a landmark decision handed down on August 21, in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by the federal government, by and through its federal prosecutors in that jurisdiction, to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.

According to the court, this means that whether in state or federal court in Kentucky, "either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct." The Court held that "the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel." The decision also relies on the McDade-Murtha Amendment (28 USC § 530B), which requires that federal prosecutors abide by state ethics laws. NACDL advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.

The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in the Kentucky Supreme Court decision. The NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney's duty when the government attempts to extract such a waiver.

NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter. 

A copy of the decision, NACDL’s amicus brief and NACDL’s Formal Opinion 12-02 are available here.


Volunteer for the Clemency Project

Earlier this year, the Department of Justice (DOJ) announced an initiative to entertain petitions for clemency from inmates whose sentences would, due to intervening changes in law or policy, be shorter had they been sentenced today. NACDL heeded the call by the DOJ for the bar to step up to help in this unprecedented undertaking, and came together with the ACLU, Families Against Mandatory Minimums, the ABA, and the Federal and Community Defenders to create Clemency Project 2014.

While more than 1,000 volunteer attorneys have already stepped up to volunteer, the Project wants to see even more experienced federal defense practitioners join the effort to represent the thousands of federal inmates who have sought our assistance. At this very moment, Project staff is organizing and analyzing data from the BOP (20,000 inmate requests) and from direct mail (more than 1,500 inmate requests) so that trained volunteers can be assigned a case file soon. Clemency Project 2014 will also need volunteers to serve on a screening committee to evaluate prospective petitions.

The Project has a website where you can learn more about the initiative, including the DOJ's criteria for this initiative and links to where you can sign up to volunteer and get the necessary training via on-demand video -- https://clemencyproject2014.org/.


NACDL President Calls for Federal Defender System Independence, and Voices Concern about Restrictions on the Participation of Federal Defenders in Historic Clemency Project

On August 22, NACDL President Theodore Simon delivered an important address to a conference of federal defenders and panel attorneys in Cleveland, Ohio, in which he expressed concern about the state of federal indigent defense.

In his remarks, Simon reiterated NACDL's commitment to a well-trained and resourced hybrid federal defender system with reasonably manageable caseloads. And he underscored the critical importance of moving toward a fully independent federal indigent defense system, pointing both to the crisis arising out of sequestration and to the recent decision of the Administrative Office of the U.S. Courts (AO), under whose authority the Defender Services Office currently operates, to restrict federal defender and panel attorney participation in Clemency Project 2014.

Simon said: “On July 31, 2014, the Administrative Office of the Courts issued a legal opinion concluding that there is no authority for federal defenders or panel attorneys to represent individual non-capital clemency applicants. While we take no position on the accuracy of that legal opinion, I believe that any system that would foreclose a lawyer from representing pending or former clients who have a chance to secure their freedom is a system that must change. It is simply unacceptable that a professional should be asked to remain on the sidelines when a client's liberty may be within reach."


Louisiana State Court Judge Orders Funding of Defense in Complex Case Involving Indigent Defendants In Order for Case to Proceed

Relying heavily upon the federal and state constitutional right to counsel, earlier in August, a Louisiana State Court ordered the State of Louisiana to fund the defense of several indigent persons accused of criminal wrongdoing, including the cost of experts and investigators. The State of Louisiana's position is that it does not have funds to pay for the defense in this case.

Baton Rouge Attorney James E. Boren was appointed by the Honorable Judge Trudy M. White of the 19th Judicial District Court to represent Nathaniel Turner in a complex, multi-defendant case involving racketeering and other charges against nineteen defendants, a number of whom are indigent, including Turner. When appointed to represent Turner, Boren reserved the right to seek compensation for his services. Shortly after he was appointed, Boren filed and, joined by others, litigated a Motion to Determine Source of Funds to Provide Competent Defense "to determine a source of funds that will provide for competent and compensated defense counsel and litigation assistance for Turner in the charges brought against him, and in support thereof[.]" Similar motions were brought or joined in by other indigent defendants in the case.

A hearing was then held on July 3, 2014. At that hearing, with resource support from the Indigent Defense Committee of NACDL, NACDL Past President and a leading expert on legal ethics John Wesley Hall delivered expert testimony on the ethical issues that would arise from an attorney not receiving funding is such a case.

By Order dated August 12, 2014, Judge Trudy M. White, citing U.S. and Louisiana Constitutional right to counsel authority, found that "it is the State's obligation to fund the defense of the Indigent Defendants" in this case. The Court stayed the case for 60 days to allow the State to fund the $3,000,000 necessary for the defense of the indigent accuseds. And if sufficient funds are not appropriated, the stay will remain in effect and the Court will promptly hold a hearing "at which time the State, through the Legislature, will be ordered to show cause why the Indigent Defendants should not be released without bond until such time as sufficient funds are made available to fund the defense of this case." Read more here.


Support the Foundation for Criminal Justice on Constitution Day

Support the Foundation for Criminal Justice this Constitution Day. The Foundation for Criminal Justice is a 501(c)3 not-for-profit that preserves and promotes the core values of America’s Constitution; values like the right to counsel, to due process and adequate discovery, and freedom from unreasonable search and seizure. Support the FCJ at www.nacdl.org/foundation/give.


Special Election Notice

NACDL’s Board of Directors will fill four vacant seats in a special election to be conducted at the Board’s Fall Meeting in Washington, D.C. on November 8, 2014. For information on submitting candidacy materials, please see www.nacdl.org/elections.


Former National Co-Chair of NACDL's Amicus Curiae Committee Pamela Harris Confirmed by Senate to U.S. Court of Appeals for the Fourth Circuit

On July 28, the Senate confirmed Professor Pamela Harris, a former national co-chair of NACDL's Amicus Curiae Committee, to the U.S. Court of Appeals for the Fourth Circuit. She had been nominated by President Barack Obama in May. A member of the NACDL from 2004, she also presented at multiple NACDL seminars. Harris, a visiting professor at Georgetown Law Center, previously served as Principal Deputy to the Assistant Attorney General for Office of Legal Policy at the Department of Justice from 2010 to 2012. In addition, she has held the post of Executive Director of the Supreme Court Institute at the Georgetown Law Center and Co-Director of Harvard's Supreme Court and Appellate Advocacy Clinic. Professor Harris was also a partner at the law firm of O'Melveny & Myers.


Forum on Alleviating the Collateral Consequences of Arrest & Conviction

On Thursday, September 18, 2014, NACDL and Offender Aid and Restoration (OAR) will host a forum entitled, "Alleviating the Collateral Consequences of Arrest & Conviction."

The event will include two sessions. The first will feature judges, prosecutors, defense attorneys, human service specialists, sheriffs and their staff, business leaders, and elected officials. The second will feature criminal justice practitioners, advocates, and members of affected communities. Both sessions will focus on the collateral consequences suffered and relief mechanisms available for individuals with a criminal conviction. The sessions will highlight recommendations from NACDL’s report Collateral Damage: America's Failure to Forgive or Forget in the War on Crime.

The event will be held on September 18, 2014 from 3:00 p.m.-8:00 p.m. at George Mason University's Arlington Campus (3301 Fairfax Dr., Arlington, VA, 22201). For more information, please contact Gail Arnall at garnall@oaronline.org.


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

NACDL is once again pleased to sponsor an opportunity for up to 12 members to participate in a group admission ceremony to the Bar of the U.S. Supreme Court in Washington, D.C. Participation in this ceremony, in which admittees are administered the oath of admission by the Chief Justice of the United States in the well of the Supreme Court, 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 20, 2015. Members will be responsible for their own travel arrangements, must be in good standing with a state bar for a minimum of three years, and must submit their completed application materials to NACDL by November 14, 2014.

Interested members should contact Elsa-Maria Ohman, NACDL’s National Affairs Assistant, at (202) 465-7638 or eohman@nacdl.org, for further instructions.


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