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April 29, 2016; Vol. 15 No. 04

U.S. Supreme Court Affirms Sixth Amendment Right to Defense Counsel of One's Choice

In a widely-awaited decision concerning the Sixth Amendment right to counsel and the government's pretrial seizure of a defendant's assets, the U.S. Supreme Court ruled on March 30, 2016 in the case of Luis v. United States (14-419).

In an opinion by Justice Breyer, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor, the Court found that "the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment." The plurality explained that the Constitutional line they have drawn—distinguishing between tainted funds and innocent funds needed to pay for counsel—should prove workable. "We concede, as Justice Kennedy points out…that money is fungible; and sometimes it will be difficult to say whether a particular bank account contains tainted or untainted funds. But the law has tracing rules that help courts implement the kind of distinction we require in this case." Justice Thomas wrote a concurring opinion agreeing with the plurality that "a pretrial freeze of untainted assets violates a criminal defendant's Sixth Amendment right to counsel of choice[,]" but disagreeing with the plurality's "balancing approach."

NACDL President E.G. "Gerry" Morris said: "The importance of this decision cannot be overstated. In oral argument before the Supreme Court, in response to a question by Justice Kennedy, the government acknowledged that its position that untainted assets can be Constitutionally restrained prior to trial could be extended to all types of crimes, supporting Justice Kennedy's concern that this '[would] prevent the private bar from – from practicing law unless it did so on a contingent basis.' The majority of the court recognized the existential threat to the Sixth Amendment the right to counsel of choice posed by the government's position and unequivocally held that the right to counsel must prevail. This decision is a reaffirmation of the importance of the Sixth Amendment guarantee and imposes a significant limitation on the government's expanding efforts to seize the funds of an accused before there has been any determination of guilt."

NACDL filed an amicus curiae brief to the U.S. Supreme Court with the California Attorneys for Criminal Justice and the Florida Association of Criminal Defense Lawyers. Counsel of record was Courtney J. Linn of Orrick, Herrington & Sutcliffe LLP. The team on the brief also included Robert Loeb and Kevin Arlyck of the Orrick firm, Sharon Cohen Levin of Wilmer Cutler Pickering Hale and Dorr LLP, David B. Smith of Smith & Zimmerman PLLC, and Jonathan Hacker of O'Melveny & Myers LLP, co-chair of NACDL's Amicus Curiae Committee.

Petitioner Sila Luis was represented by counsel of record and NACDL Life Member Howard Srebnick, of Black, Srebnick, Kornspan & Stumpf, P.A., in Miami, Florida as well as NACDL Life Member Scott A. Srebnick of Scott A. Srebnick, P.A., in Miami, Florida. Howard Srebnick is also Vice Chair of NACDL's Lawyers' Assistance Strike Force. In addition, petitioner's legal team included Professor Ricardo J. Bascuas of the University of Miami School of Law and Joshua Shore of Black, Srebnick, Kornspan & Stumpf, P.A.

When Sex is a Crime and Spit is a Dangerous Weapon: A Teleconference on HIV Criminal Laws

NACDL, The Center for HIV Law and Policy, and The ABA AIDS Coordinating Committee are sponsoring a free interactive teleconference on HIV criminal laws.

Date and Time: May 5, 2016 from 10:30-11:30 a.m. ET

Summary: Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more. Learn from experts about these laws and how to defend against them. 

For more information on how to participate in the teleconference and to RSVP, click here!

New Report Investigates Courts in South Carolina that Convict and Jail Many Defendants without a Lawyer Present

On April 4, 2016, NACDL, the American Civil Liberties Union (ACLU), and the ACLU of South Carolina released a new and critically important report, Summary Injustice: A Look at Constitutional Deficiencies in South Carolina's Summary Courts. In South Carolina, the bulk of criminal cases are low-level offenses heard in municipal and magistrate courts, collectively referred to as summary courts. These courts often fail to inform defendants of the right to counsel, refuse to provide counsel to the poor at all stages of the criminal process, and force defendants who cannot afford to pay fines to instead serve time in jail. 

"Many, if not most, people will read this report and be shocked by the numerous and profound constitutional deficiencies in South Carolina's summary courts as observed by NACDL and the ACLU since they began this research in 2014," said longtime Rock Hill, South Carolina, criminal defense lawyer and NACDL Treasurer Chris Wellborn. "Sadly, as someone who has spent my career representing the criminally accused in South Carolina, I am only able to underscore how pervasively these courts have been disregarding the rights of the people of South Carolina, and that it's been like this for decades." 

NACDL President E.G. "Gerry" Morris said: "While this important report, and a forthcoming second report to be released later this year, is focused on South Carolina, it is part of a larger initiative to study state level public defense delivery systems across the nation. The ultimate goal is to identify and document weaknesses in different public defense delivery systems that must be remedied as well as to highlight strengths and successes in systems that can and should be replicated elsewhere. More than 50 years after the Supreme Court's landmark decision in Gideon v. Wainwright, the people of America are entitled to nothing less than to have their courts respect the very rights recognized and protected by the Constitution. NACDL will not waver in its mission to shine the light brightly on systems where that is not happening, and to offer policymakers effective solutions to what is quite clearly a widespread problem of constitutional dimensions."

A copy of Summary Injustice can be downloaded at www.nacdl.org/summaryinjustice.

Read more here.

NACDL Welcomes House Passage of Email Privacy Act

On April 13, 2016 the House Judiciary Committee passed out of committee the Email Privacy Act (H.R. 699) by a vote of 28-0. This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that governs the treatment of electronic communications. The Email Privacy Act establishes that law enforcement officers must obtain a warrant to access the content of most electronic communications and cloud-stored content from third-party providers and eliminates the arbitrary rule that would allow the government to obtain emails older than 180 days with a subpoena. On April 27, the Email Privacy Act passed the full House by a unanimous vote of 419 to 0.

When the legislation first passed in the Judiciary Committee, NACDL President E.G. "Gerry" Morris said: "Today's vote recognizes the seismic shift in the use of electronic communications and cloud storage over the past thirty years and brings government practice in line with the Fourth Amendment."

NACDL had expressed some concerns about provisions that were stripped prior to the vote of the Judiciary Committee.

Overcriminalization Law & Policy Symposium on May 26, 2016
NACDL and the U.S. Chamber Institute for Legal Reform will co-host a joint Law & Policy Symposium on Thursday, May 26, 2016 at the U.S. Chamber of Commerce headquarters in Washington, DC. There is no cost to attend this full day program. The Symposium—The Enforcement Maze: Over-Criminalizing American Enterprise—will address the rise of overcriminalization, the inappropriate criminalization of what are truly civil or regulatory/administrative problems, and the pressures associated with enforcement against businesses and corporate individuals. Jim Cole, former Deputy Attorney General of the United States, will provide the keynote address. For the full agenda, click here. To register for this free program, click here.
Spread the Word about The Right to Counsel National Campaign
NACDL is a proud consortium and steering committee member of the Right to Counsel National Campaign. This Bureau of Justice Assistance-led initiative is spearheaded by a consortium of national, state, and local criminal justice stakeholders, community advocates, and policymakers who are committed to ensuring the fulfillment of the Sixth Amendment right to counsel and the effective delivery of public defense services. To learn more and spread the word on the importance of public defense, like the campaign on Facebook and follow it on Twitter. And you can join the conversation by using the hashtag #right2counsel.
Request for Trial Transcripts in Forensics Cases
The Department of Justice is currently developing a framework to review FBI laboratory analyst testimony regarding pattern and impression evidence, similar to the FBI Microscopic Hair Comparison Analysis Review. In preparation for the Forensic Science Discipline Review, NACDL requests your help identifying cases that may be appropriate for review. In particular we need trial transcripts containing FBI analyst testimony in the areas of handwriting analysis, shoeprint and tire tread, fiber, glass, firearms/ballistics, serology, mineralogy, latent fingerprints, and paints in polymers. If you have any such transcripts, or know of a case containing the foregoing evidence, please contact Post-Conviction Counsel Amelia Maxfield at amaxfield@nacdl.org or (202) 465-7646.
Federal Legislative Tracking
Click here for a complete listing of all federal legislation NACDL is currently tracking. For more information on a specific bill or to learn NACDL's position, please contact Monica Reid, NACDL's Grassroots Advocacy Manager, at mreid@nacdl.org.
NACDL 2016 Election Notice
NACDL's 2016 election is underway. Individuals interested in running for officer positions or for the board of directors should consult www.nacdl.org/elections for information on deadlines and procedures.
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In Other News

Upcoming Committee Meetings
Dates and times for upcoming meetings will be posted here early on the week of May 2.

Upcoming CLE Events
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Recent Updates to Restoration of Rights Project
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Employment Opportunities
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