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June 29, 2015; Vol. 14 No. 06

Order Should Give Defense Lawyers Better Ability to Limit the Immigration Consequences of Certain Guilty Pleas

On April 10, U.S. Attorney General Eric Holder signed an order that is good news for immigrants accused of certain crimes and their criminal defense lawyers. Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015). The Attorney General’s order vacates a 2008 opinion of former Attorney General Mukasey that allowed immigration judges to consider evidence outside the record of conviction to determine whether a noncitizen was removable from the United States on the basis of a conviction for a “crime involving moral turpitude.” As detailed in the Defending Immigrants Partnership’s practice advisory, this should give criminal defense lawyers increased ability to provide reliable advice regarding immigration consequences of guilty pleas to certain charges, as well as greater ability to limit those consequences by controlling what is in the record of conviction. This order and opinion were issued following advocacy by the NACDL in coalition with the American Bar Association, the American Immigration Lawyers Association and immigrant advocacy groups, including the Immigrant Defense Project and the National Immigration Project, represented by the Cardozo School of Law Immigration Justice Clinic.

Immigration Advisory for Defense Counsel Regarding Silva-Trevino 


USA Freedom Act the Opening Salvo in Larger Bid to Reign in Surveillance State

After failing to enact legislation prior to the May 31 sunset of various surveillance provisions of the USA Patriot Act, on June 2, the U.S. Senate passed the USA Freedom Act, and the President signed it into law. This marks the first time in three decades that any meaningful restrictions have been placed on the surveillance power of the National Security Agency, in this case as relates to the government’s bulk collection of Americans’ telephone data. Among other provisions, which were opposed by NACDL, the USA Freedom Act extends through 2019 the Patriot Act's extraordinary "roving wiretaps" and "lone wolf" surveillance programs, while increasing the maximum sentence to 20 years for violating the vague "material support" statute, a law so broad that it can ensnare even those who for humanitarian reasons interact with a U.S. government-designated terror group for the purposes of aiding civilians within that group's territorial control or criminalize pure speech.

"The passage of the USA Freedom Act should be seen as an important first step, providing an opportunity to proceed to even more meaningful surveillance reform," said NACDL President Theodore Simon. "Moving forward, we need to implement reforms that will address the use by law enforcement in a wide array of domestic prosecutions of these vast pools of information the government has collected on a more relaxed standard than the Fourth Amendment requires. Additionally, the accused in domestic prosecutions must be provided with notice of the actual source of the evidence being used against them, as well as access to potentially exculpatory information in those databases. NACDL will continue its diligent efforts to roll back such encroachments on the rights of the accused, and indeed on the rights of all people in this country."


NACDL Seeks Cases of Discovery Abuse

NACDL is seeking your help in gathering information that may prove critical to securing long-overdue reforms in federal criminal discovery.

NACDL and its allies are seeking to assess the impact of discovery-related policy changes announced by the Department of Justice in the wake of the overturned conviction of Senator Ted Stevens and other cases in which evidence favorable to the defense had not been made available. We are asking for your help in identifying specific federal cases since January 1, 2010 where Brady or other discovery violations have occurred (i.e., in which violations took place notwithstanding the new policies that DOJ indicated to Congress that it put in place to redress the problem after the Stevens case).

If you are aware of any federal cases in which a Brady or other significant discovery violation occurred during this time period, we would be grateful for any public information (orders, pleadings, news articles, etc.) you have about the case or information you are otherwise willing to share. It would be helpful if you send a brief summary to ensure we understand the context.

We are particularly interested in cases in which a discovery violation was found by a federal court – in writing or otherwise on the record. However, we would also like to review any federal cases in which the evidence of such a violation appears to be strong.

Please send case information to Kyle O’Dowd, NACDL Associate Executive Director for Policy, at kodowd@nacdl.org. 


Settlement in Missouri Class Action Bail Case

On June 3, 2015, a settlement order was issued in a Missouri case that prohibits the imposition of cash or surety bonds for municipal court offenses in Velda City. The class action lawsuit of Donya Pierce, et al., v. The City of Velda City (Case No. 4:15-cv-570-HEA), filed in the U.S. District Court for the Eastern District of Missouri, arose from the city's practice of requiring cash or surety bonds in set amounts for municipal violations, without regard to the individual's circumstances or ability to pay. The order states that the resulting difference in treatment between those who can afford to pay and those who cannot is a violation of the Fourteenth Amendment's Equal Protection Clause, noting that "[i]f the government generally offers prompt release from custody after arrest upon posting a bond pursuant to a schedule, it cannot deny prompt release from custody to a person because the person is financially incapable of posting such a bond."

Pursuant to the settlement order, Velda City will no longer use secured money bail for municipal court offenses, instead releasing accused people on written promises to appear or unsecured money bonds. The release of a person on recognizance or an unsecured bond must be accomplished "as soon as practicable after booking," except in certain cases involving assaultive or threatening conduct that may require additional non-monetary conditions of release, and cases in which release may be denied for concerns of danger to the community or an individual. A hearing must be held before a judge within 24 hours of arrest in those cases in which individuals are not immediately released. The settlement order further prohibits the city from holding people wanted for municipal charges in other towns for longer than four hours, and from impounding vehicles for ordinance violations when another licensed driver is available to take control of the vehicle. The order also outlines a procedure for addressing failures to appear, usually without the need for re-arrest.


Clemency Project 2014: A Historically Unprecedented and Wholly Independent Volunteer Effort by the Nation's Bar

Clemency Project 2014 is a working group composed of lawyers and advocates including the Federal Defenders, the American Civil Liberties Union, Families 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 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 the past year, Clemency Project 2014 has organized 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 Past President Barbara Bergman Receives New Mexico Criminal Defense Bar’s Highest Honor

On June 5, University of New Mexico School of Law Professor and NACDL Past President Barbara Bergman was honored with the 2015 Charles Driscoll Award, the highest award bestowed by the New Mexico Criminal Defense Lawyers Association (NMCDLA). The award is named for New Mexico legal advocate and human rights activist Charles Driscoll and is given annually to a person who has fought for not only his or her own clients, but also made an important contribution to improve the criminal defense profession in New Mexico.

Ms. Bergman currently serves as co-chair of NACDL's Amicus Committee and sits on the advisory board of The Champion. She also serves on the Board of Trustees of the National Institute for Trial Advocacy (NITA), and is President of the Board of Directors for PB&J Family Services. In 2001, she received NACDL’s prestigious Robert C. Heeney Award, and in 2010, the Stetson College of Law awarded her a Lifetime Achievement Award for the Teaching of Trial Advocacy. Last year, Ms. Bergman received the Justice Mary Walters Award from the University's Women's Law Caucus. Recently, the Barbara Bergman Fund was established to honor her outstanding service to legal education in New Mexico as well as her commitment to the practice-ready development of law students’ skills and her Innocence and Justice Project work in New Mexico.


Register Now for the 14th Annual State Criminal Justice Network Conference

The 14th Annual State Criminal Justice Network Conference Building Consensus: Shifting Public Discourse and Policy on Criminal Justice Issues takes place Friday, July 24, 2015-Saturday, July 25, 2015 in Denver, Colorado. Please register online or download the registration application here. Early Bird registration ends July 19, 2015.


Tickets Available for the Foundation for Criminal Justice® 2015 Awards Dinner

It is not too late to join the Foundation for Criminal Justice® and the nation’s criminal defense bar….Purchase your ticket today to the Foundation for Criminal Justice® 2015 Annual Awards Dinner.

Reception – Dinner – Dancing
Black Tie Optional 

Privacy In the Digital Age: Freedom, the Fourth Amendment, and the Future 

Featuring remarks by Michael Tigar and the presentation of NACDL’s prestigious Robert C. Heeney Memorial Award to Peter Goldberger.

July 24, 2015 at 7:00 p.m. at the Denver Center for the Performing Arts.

Your support will make a difference!
Support the work of FCJ with your ticket purchase – please buy your tickets by July 10, 2015.

All proceeds from this event will help the Foundation for Criminal Justice® (a 501(c)(3) nonprofit) pursue its vital criminal justice reform goals. 

Purchase Tickets Today 


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 19, 2016. 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 13, 2015.

Interested members should contact Lisa Ama Schrade, NACDL’s National Affairs Assistant, at (202) 465-7638 or lschrade@nacdl.org, for further instructions.


NACDL Election Update

No candidacy petitions were received by the deadline. Consequently, the nominees of the Nominating Committee will be declared elected by acclamation. Learn more at the Election Center.


Employment Opportunities at NACDL and Clemency Project 2014

NACDL is currently accepting applications for the positions of Post-Conviction Project Counsel, Manager for Grassroots Advocacy, and White Collar Crime Policy Counsel. More information is available here.

Clemency Project 2014 is currently accepting applications for a Clemency Project Staff Attorney. More information is available here.


Become a Life Member of NACDL

There will never be a better time to become a Life Member of NACDL!  Effective January 7, 2016, the cost of Life Membership will increase to $6,500. You can lock in the current rate with five yearly installments of $1,000 each, or a one-time payment of $5,000.

If you have ever thought of upgrading your membership…2015 is the year to do it. Beginning January 7, 2016, a new Life Membership will cost $6,500. 

CALL: The membership hotline now to upgrade your membership! 202-872-4001

QUESTIONS: Call Michael Connor at 202-465-7654, or EMAIL: mconnor@nacdl.org 

VISIT: http://www.nacdl.org/jointoday to download the Life Membership Form


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