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November 24, 2014; Vol. 13 No. 11

Groundbreaking Study Documents How Courts Are Impeding Fair Disclosure in Criminal Cases

On November 17, at the National Press Club in Washington, DC, NACDL officially released its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. The event featured comments by NACDL President Theodore Simon, NACDL Executive Director Norman L. Reimer (who also moderated the event), and special guests David W. Ogden, former Deputy Attorney General who is now a partner at the WilmerHale firm, and the Hon. Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals. The report's co-authors – VERITAS Initiative Director and Professor Kathleen "Cookie" Ridolfi, NACDL White Collar Crime Policy Counsel Tiffany M. Joslyn, and VERITAS Initiative Pro Bono Research Attorney Todd H. Fries – also discussed their findings and recommendations. The event was broadcast live by C-SPAN and video is now available on demand.

In courtrooms across the nation, accused persons are convicted without ever having seen information that was favorable to their defense. The frequency with which this occurs and the role it plays in wrongful convictions prompted NACDL and the VERITAS Initiative to undertake an unprecedented study of Brady claims litigated in federal courts over a five-year period. The study asked: What role does judicial review play in the disclosure of favorable information to accused? The results revealed a troubling answer – the judiciary is impeding fair disclosure in criminal cases and, in doing so, encouraging prosecutors to disclose as little favorable information as possible. The report exposes in stark detail the depth and breadth of the problem and offers three reform proposals that would serve as mechanisms for increasing fair disclosure in criminal cases.

Following the report’s release, U.S. Senator Lisa Murkowski (R-AK) announced plans to re-introduce the bipartisan Fairness in Disclosure of Evidence Act and affirmed the need for reform: “We can no longer allow the government to have a finger on the scales of justice, tipping it in its favor.”

Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. Learn more about NACDL's work in the area of discovery reform, including links to model legislation and more, at www.nacdl.org/discoveryreform.


Volunteer Attorneys Needed to Support 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. Clemency Project 2014 seeks your assistance in a national pro bono effort to secure freedom for many federal inmates who are serving unnecessarily harsh sentences for non-violent offences. CP 2014 is a working group comprised of lawyers and advocates including the American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, Federal and Public Defenders, and NACDL. The goal is to recruit and train lawyers to participate in this project by providing assistance to inmates who meet the stated criteria (which are available at the CP 2014 website www.clemencyproject2014.org).

At this very moment, Project staff is sifting through more than 25,000 requests for assistance from federal inmates, nearly 5,000 of which are currently under attorney review to ascertain whether they meet criteria announced by the DOJ. Although many of these inmates will not, it is likely that hundreds, perhaps thousands, will. While some 1,500 attorneys have already volunteered for the Project, the job cannot be completed without your help.

Please join this historic opportunity to reverse the unduly harsh prison sentences that were imposed upon so many. To volunteer please sign-up at the above website or send an email to volunteer@clemencyproject2014.org.    


New NAS Report on Eyewitness Identification

The National Academy of Sciences (NAS) has released a comprehensive report focusing on the limited reliability of eyewitness identifications, which can result in misidentification and wrongful conviction – Identifying the Culprit: Assessing Eyewitness Identification. The report authors conclude that it is crucial to implement eyewitness identification procedures that will achieve increased accuracy and reliability.

The NAS researchers studied the past 30 years of research on memory and vision, as well as the research specifically addressing eyewitness identification. The report discusses the “frailties of eyewitness identification testimony” and the need to improve practices for both obtaining eyewitness identifications and their use in court. The NAS identifies specific deficiencies in identification procedures used by many law enforcement agencies that add to the inaccuracy of eyewitness identification, and endorses several science and research-based recommendations aimed at improving the accuracy of identifications. Further, the report emphasizes that most of the legal frameworks governing the use of eyewitness identification evidence in court were developed long before the current research on this topic, and suggests specific improvements to strengthen the value of this evidence at trial, including pre-trial inquiries and allowing eyewitness identification expert testimony.


NACDL Board Elects New Directors in Special Election

NACDL's Board of Directors conducted a special election to fill vacant Director positions at its November 8, 2014 meeting. The board elected Charles E. Atwell, Tracy A. Miner, Mark E. Schamel, and Jeffrey D. Zimmerman.


Jumana Musa Appointed Senior Privacy and National Security Counsel for Nation's Criminal Defense Bar

In early November, NACDL announced the appointment of Jumana Musa as Senior Privacy and National Security Counsel. Ms. Musa will assume responsibility for NACDL's important work both to protect Fourth Amendment rights and to limit government overreach under the rubric of national security. Ms. Musa has devoted the past eleven years to work on issues related to human rights, national security, policing, and racial profiling.

Most recently, Ms. Musa has been engaged as a Policy Analyst for the Southern Border Communities Coalition seeking to address transparency, oversight and accountability for Customs and Border Protection. In addition, she served as Policy Director and later Deputy Director at the Rights Working Group (RWG), addressing issues related to racial profiling, immigration and enforcement, surveillance, privacy, and technology. Prior to that, she served as an Advocacy Director for Domestic Human Rights and International Justice for Amnesty International, where she observed and commented on the military commissions as well as on federal terrorism trials.

Ms. Musa earned her B.A. in International Relations at Brown University and her J.D. at Georgetown University Law Center.


Collateral Consequences Resource Center Launches Website

The Collateral Consequences Resource Center, whose Executive Director is NACDL member and former U.S. Pardon Attorney Margaret Colgate Love, has launched its website – www.CCResourceCenter.org. The website will provide the latest developments in relief from the collateral consequences of conviction and seeks to fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. Rick Jones, Co-Chair of NACDL’s Task Force on the Restoration of Rights and Status After Conviction, said: "The NACDL Task Force on Restoration of Rights and Status reported last spring on how difficult it has become to avoid the legal restrictions and social stigma of a criminal record. This new user-friendly website is the first to collect practice resources, opinion pieces and news items relating to this burgeoning problem. It promises to be a gold mine for criminal defense lawyers and their clients."

Further, Ms. Love, a member of NACDL’s Task Force on the Restoration of Rights and Status After Conviction, has updated research detailing the relevant laws and practices in each U.S. jurisdiction that avoid or mitigate collateral consequences in NACDL’s online Restoration of Rights Resource at www.nacdl.org/rightsrestoration.


NACDLConnect v. 2.0: Get Connected with Your Colleagues!

Network, exchange information, and discuss strategy with some of America's best-connected, most knowledgeable criminal defense lawyers! We are happy to announce major updates to the functionality of NACDLConnect, based on feedback from NACDL members!

  • Post and reply via email, whether in plain text, digest, or real-time mode
  • Add file attachments to your post from your email client
  • Better handling of cookies to keep you logged into the system
  • New email format: Responsive design adjusts to optimize display for your device!

Get details and get engaged on NACDLConnect at http://connect.nacdl.org/faq1


NACDL Board to Conduct Special Election in February

NACDL’s Board of Directors will conduct a special election at its 2015 Midwinter Meeting to fill one vacant position on the Board of Directors, and to fill the vacant Treasurer position. NACDL members interested in being considered for this election can learn more at www.nacdl.org/elections.


2015 NACDL Election

NACDL’s 2015 regular election is underway. In 2015, NACDL will elect 13 members of the Board of Directors, in addition to the President-Elect, First Vice President, Second Vice President, and Secretary positions. NACDL members interested in seeking office in the 2015 regular election can learn more at www.nacdl.org/elections.


Get in the game! Win a trip to the 2015 Pro Bowl

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Link for "Enroll now" is: https://advantagemember.visionary.com/6877/ 


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