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April 29, 2015; Vol. 14 No. 04

FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90% of Cases in Ongoing Review: 26 of 28 FBI Analysts Provided Testimony or Reports with Errors

On April 20, the United States Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Innocence Project and NACDL reported that the FBI has concluded that the examiners' testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements. Twenty-six of twenty-eight FBI agent/analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements. The review focuses on cases worked prior to 2000, when mitochondrial DNA testing on hair became routine at the FBI. The DOJ, FBI, Innocence Project and NACDL have been working jointly on this review and share the same goal of ensuring the integrity of the American justice system in all respects. All of the parties are committed to addressing this situation properly and will continue to work together in a collaborative and professional manner.  

The FBI and DOJ agreed to conduct a review of criminal cases involving microscopic hair analysis after the exoneration of three men convicted at least in part because of testimony by three different FBI hair examiners whose testimony was scientifically flawed.  

In light of these findings, the Department of Justice and FBI have committed to working with the Innocence Project and NACDL to take the following steps: 

·       Conduct an independent investigation of the FBI Laboratory protocols, practices and procedures to determine how this occurred and why it was allowed to continue for so long;


·       Continue aggressive measures and review the process to determine whether additional steps could be taken to secure the transcripts and/or lab reports and review the hundreds of remaining cases that may contain invalid scientific statements; and


·       Strongly encourage the states again to conduct their own independent reviews where its examiners were trained by the FBI. 

With regard to this last point, NACDL Executive Director Norman L. Reimer has written to all NACDL affiliates asking that they consider leading efforts in their respective jurisdictions to call for similar audits and has offered NACDL staff assistance to support these initiatives. This is a critical issue because it is likely that many state examiners trained by the FBI may have committed similar errors. 

Detailed information about the review is available here. 


NACDL Calls for an End to Current Mass Postal Surveillance Practices: Report

On April 19, 2015, NACDL adopted an important new report, Mail Cover Surveillance: Problems and Recommendations, which evaluates the current state of mass United States Postal Service surveillance and information sharing and makes important recommendations for reform. 

It has been reported that the U.S. Postal Service's mass mail covers surveillance program, which secretly monitors the mail of Americans, approved nearly 50,000 requests from law enforcement agencies as well as its own internal inspection unit, all without judicial review. That report also revealed that federal prosecutors used a mail cover to monitor the communications between a criminal defendant and his lawyers, one of whom was Past President of NACDL Cynthia Orr. And a 2014 audit by the Postal Service Inspector General revealed the breadth of the mail cover program as well as its systemic failures in authorization and monitoring.  

In light of these reports, NACDL's Fourth Amendment Advocacy Committee carefully and comprehensively studied issues concerning the current United States Postal Service Mail Covers regime following the revelations in the New York Times investigative report in connection with the 2014 U.S. Postal Service audit of the program. As NACDL's report concludes, in today's world, and particularly given the new analysis following the Supreme Court's GPS tracking decision in Jones, 'addressing the potential for mail covers to violate the Fourth Amendment and privacy norms is more important than ever.'



Mass DEA Surveillance Program Exposes Moral Bankruptcy of the ‘War on Drugs’

On April 8, USA Today reported that for more than 20 years, from 1992 to 2013, the U.S. Drug Enforcement Administration (DEA) was harvesting and secretly storing records of billions of Americans' international phone calls "in a program that provided a blueprint for the far broader National Security Agency surveillance that followed." The story continued, "To keep the program secret, the DEA sought not to use the information as evidence in criminal prosecutions or in its justification for warrants or other searches. Instead, its Special Operations Division passed the data to field agents as tips to help them find new targets or focus existing investigations, a process approved by Justice Department lawyers. Many of those tips were classified because the DEA phone searches drew on other intelligence data." 

In a statement to the media, NACDL President Theodore Simon said: "The revelation that under four successive administrations of both political parties the Constitutional rights of Americans were deliberately and systematically undermined in the name of the 'War on Drugs' is breathtaking. From Americans' Fourth Amendment protection against unlawful search and seizure to their right to due process and a fair trial, the program described in this USA Today report is an affront. People accused of a crime have the right to challenge the legality of the evidence introduced against them by the government in an effort to take away their liberty, something that is impossible to do when the government deliberately conceals how, why and from where it has secured such evidence." 

Clemency Project 2014 Applauds Obama Administration's Clemency Grants; Hopes Raised Across the Nation for more Routine Exercise of Executive Clemency Power

On March 31, President Obama granted clemency to 22 individuals, including in cases in which clemency was supported by volunteer lawyers through Clemency Project 2014. The grants indicate that the Obama Administration is beginning to deliver on its promise of a significantly increased exercise of its executive clemency power. With thousands serving draconian sentences for non-violent offenses in the nation's federal prison system, the moral imperative for the use of this constitutionally granted prerogative is apparent; particularly in those cases where changes in law or policy in the years since many of these people were sentenced mean that, if imposed today, their sentences would be substantially shorter.

"I cannot express in stronger terms how gratifying it is to see today's grants of clemency by the White House, including in cases where some of Clemency Project 2014's more than 1,500 volunteer lawyers had supported clemency," said Clemency Project 2014 Project Manager Cynthia W. Roseberry.

Clemency Project 2014 is a working group composed of lawyers and advocates including the Federal Defenders, the American Civil Liberties UnionFamilies Against Mandatory Minimums, the American Bar Association, and the National Association of Criminal Defense Lawyers, as well as individuals active within those organizations. It launched in January 2014, after Deputy U.S. Attorney General James Cole called on the legal profession to provide pro bono assistance to federal prisoners who would likely have received a shorter sentence if they had been sentenced today.

In just under a year, Clemency Project 2014 has organized and trained an army of volunteer lawyers who are diligently working on behalf of thousands of prisoners who have requested free legal assistance in drafting and submitting clemency petitions. Since its conception, Clemency Project 2014 has created a training and case management infrastructure to prepare and support the diverse set of lawyers now engaged in the project.

Please join this historic opportunity to reverse the unduly harsh prison sentences that were imposed upon so many. To volunteer, please visit www.clemencyproject2014.org.


NACDL Board Approves Policy on Criminal Conspiracy Law Reform
At its spring 2015 meeting in Las Vegas, NACDL’s Board of Directors unanimously approved a resolution on criminal conspiracy law reform. The resolution is guided by a position paper drafted by NACDL’s Conspiracy Reform Subcommittee and adopts the recommendations therein. Before approving the resolution, the Board received a presentation by Subcommittee Co-Chairs Steven Morrison and John Cline on the flawed nature of existing criminal conspiracy law and the critical need for reform. The presentation focused on how existing conspiracy law results in possible constitutional violations, evidentiary unreliability, and false convictions. The Co-Chairs also presented the recommendations contained in the position paper, which would address, among other things, the overt act requirement, jury instructions, Pinkerton liability, and more. Read the Board resolution here. Read the Report here 
NACDL Elects New Director at Spring Board Meeting
Martin A. Sabelli, whose practice is based in San Francisco, was elected to the Board of Directors at the April 19 Spring Board Meeting in Las Vegas. 
NACDL Election Announcements

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. The NACDL Nominating Committee met on April 17, 2015, to select eligible candidates to serve in the positions listed below during the 2015-2016 term. The committee’s nominees for the 2015 NACDL election, along with other information on the status of the election and candidacy, are available at www.nacdl.org/elections


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 2015 award. Nominations are due June 19. 


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