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NACDL E-News

September 30, 2016; Vol. 15 No. 09

The FCJ to Honor David Simon and Celebrate the First Amendment at the Newseum
The Foundation for Criminal Justice, which supports much of NACDL's reform efforts, will hold its annual awards dinner on October 28, 2016, at the Newseum in Washington, DC. The FCJ will honor David Simon of HBO's The Wire, and will celebrate the role of the First Amendment in criminal justice reform. Click here to attend the event. You can also donate to the FCJ regardless of whether you attend.
I Care About Justice
NACDL launched www.icareaboutjustice.org to engage the public on the subject of the presidential candidates and criminal justice issues. This website shares NACDL's questions to the candidates with the public and offers the public the opportunity to urge the candidates to show that they care about criminal justice. Eventually, the site will report on any responses received from the candidates. Visitors can identify which questions are most important to them, and even share a question they would like to ask the candidates. Visit the site now and share your views.
President's Council of Advisors on Science and Technology (PCAST) Issues Major Forensic Science Report; Calls for Stronger Scientific Standards

On September 20, 2016, the President's Council of Advisors on Science and Technology (PCAST) issued a major new report calling for the strengthening of forensic science standards. The highly-anticipated report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, came on the heels of the groundbreaking August 2009 report of the National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward, which called into question the validity of many of the scientific disciplines used to support criminal prosecutions across the country. The new PCAST report focuses on methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair.

"We have known for years now that law enforcement has overstated the validity and accuracy of forensic science and has obtained convictions based on these overstatements, including the convictions of innocent people. This critically important new report offers further evidence of the pervasive use of flawed analysis erroneously presented as grounded in science," said NACDL President Barry J. Pollack. "If the recommendations in this report are followed, we will have trials where testimony is based on actual science, ensuring that flawed science does not derail what is supposed to be an unbiased search for the truth."

Read more here.

NACDL Sr. Privacy and National Security Counsel Jumana Musa To Receive Major Civil Rights Award

Jumana Musa, Senior Privacy and National Security Counsel at NACDL, will receive the American-Arab Anti-Discrimination Committee (ADC) Ralph Johns Civil Rights Award on Saturday, October 1, at the Civil Rights Luncheon during the ADC's 2016 National Convention being held in Washington, DC.

"If the purpose of this award is to recognize an unsung civil rights activist in the mode of Ralph Johns, and someone who is a tireless defender of civil rights for all, no one is more deserving than Jumana Musa," said NACDL Executive Director Norman L. Reimer. "Jumana's passionate, persuasive, and persistent advocacy to preserve core constitutional rights is a constant inspiration to her colleagues."

NACDL President Barry J. Pollack said: "The American-Arab Anti-Discrimination Committee could not have chosen a more worthy recipient for its Ralph Johns Civil Rights Award than Jumana Musa. As president of NACDL, it has been my privilege to work closely with Jumana and see first-hand her work as a zealous and capable champion for anyone whose civil rights are being violated. I applaud Jumana for her hard work and congratulate her on this well-deserved recognition."

Read more here.

Public Defense Lawsuit in Kuren v. Luzerne County Allowed to Move Forward

On September 28, 2016, the Pennsylvania Supreme Court issued a decision in Kuren v. Luzerne County, a class action lawsuit brought on behalf of indigent criminal defendants in Luzerne County, PA.  The lawsuit alleges that Luzerne County's failure to adequately fund the Office of the Public Defender (OPD), despite repeated requests for additional funding and implementation of reasonable cost-cutting measures, has led to a system in which OPD is unable to fulfill its constitutional duty to provide adequate representation for indigent criminal defendants. The Court, in a case of first impression, was called to address (1) whether Plaintiff-Appellants stated a claim for constructive denial of counsel and (2) whether a claim of mandamus to compel funding could be brought. The Court's holding recognized a cause of action for indigent defendants to seek prospective relief when insufficient county funding of public defense services leads to "widespread, systematic and constructive denial of counsel," rather than relying on post-conviction remedies. (Opinion at 46.) In light of this newly recognized cause of action, the Court also held that Plaintiff-Appellants cannot pursue a writ of mandamus to compel the county board to provide additional funding, since mandamus requires that there be no other adequate legal remedy. The Court reasoned that if Plaintiff-Appellants "ultimately can prove that they are entitled to injunctive relief," pursuant to the cause of action recognized in the holding addressing the first question, "the remedy afforded will be the same as if a court issued a writ of mandamus: increased funding." (Opinion at 60.)

The Court undertook substantial analysis of U.S. Supreme Court precedents as well as decisions from state and federal courts in Georgia, Michigan, and New York addressing claims of constructive denial of counsel in coming to its decision. The Court recognized that requiring individual defendants to address claims of ineffective assistance only in post-conviction proceedings ignores the reality that harms can occur throughout the judicial process—such as prolonged pretrial detention, unfiled motions, and lack of investigation—and that those harms may not directly impact the outcome of a case:

The right to counsel is the lifeblood of our system of criminal justice, and nothing in our legal tradition or precedents requires a person seeking to vindicate that right to wait until he or she has been convicted and sentenced. To so hold would undermine the essentiality of the right during the pretrial process. It would render irrelevant all deprivations of the right at the earliest stages of a criminal process so long as they do not clearly affect the substantive outcome of a trial. If the right to counsel is to mean what the Supreme Court has consistently said it means, this view cannot prevail. (Opinion at 53.)

NACDL and the Pennsylvania Association of Criminal Defense Lawyers filed a joint amicus curiae brief in the case, written by Arleigh P. Helfer III, Paul H. Titus, Philip Gelso, and Peter Goldberger, which was cited by the Court on page 26 of the decision. The case has been remanded to the trial court for further proceedings on the lawsuit.

NACDL Presents on the Defense Function to China Law Society Delegation
On September 14, 2016, by invitation from the International Law Institute, NACDL President Barry J. Pollack and NACDL Executive Director Norman L. Reimer delivered a half-day presentation to a visiting delegation from the China Law Society. The two dozen-plus members of the delegation were key leaders from provinces across China who are involved in the development of that nation's legal system. Their two-week training program in Washington, DC, entitled "Reasonable Distribution of Judicial Powers," was hosted by the International Law Institute in Georgetown. Pollack and Reimer presented the module on "Defense Attorneys: Roles and Responsibilities" and fielded questions for more than an hour thereafter. The presentation was very well received by the delegation.
NACDL Submits Comments on DOJ Proposed Uniform Language for Testimony and Reports

On August 25, 2016, NACDL President Barry J. Pollack submitted comments on behalf of NACDL on Department of Justice proposed standards for testimony and lab reports generated by the Federal Bureau of Investigation (FBI), the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Drug Enforcement Agency. Based upon its extensive experience reviewing testimony and lab reports in the Microscopic Hair Comparison Analysis (MHCA) Review in partnership with the DOJ, FBI, and the Innocence Project, NACDL offered specific comments on the Proposed Uniform Language for Testimony and Reports (ULTR) for the Forensic Hair Examination Discipline.  

NACDL is very concerned that the proposed hair comparison standard does not fully and accurately reflect the accepted limits of that discipline and would not prevent the types of testimony found to be scientifically invalid by the DOJ and the FBI in the MHCA Review. Specifically, NACDL's comment included the following points:

First, the MHCA Review established the scientific limits of appropriate hair comparison testimony that should form the basis of the uniform standard.

Second, the ULTR must specifically include language about inclusion in a pool of people of unknown size as a potential contributor of the hair in the sentence specifying what an examiner may appropriately state.

NACDL's third point is that Error Type 3 from the MHCA Review must also be included in the statements not approved for use in forensic hair examination testimony and/or laboratory reports. Error Type 3 occurs when the examiner cites the number of cases or hair analyses worked in the lab and the number of samples from different individuals that could not be distinguished from one another as a predictive value to bolster the conclusion that a hair belongs to a specific individual. There is no scientific basis to provide a statistical weight, probability, or likelihood to the inclusion of someone as a possible source of a questioned hair.

Finally, NACDL's fourth point is that the DOJ must directly solicit and implement feedback from independent scientists and statisticians in the development of the ULTRs.

NACDL Represented at First-Ever White House Briefing on LGBT & HIV-related Criminal Justice Issues

NACDL's Director of Public Affairs & Communications, Ivan J. Dominguez, serves as NACDL's representative to the Washington-based LGBT/HIV Federal Criminal Justice Policy Working Group and represented NACDL at this four-hour briefing at the White House on September 20, 2016. For this briefing, the White House hosted dozens of formerly incarcerated LGBT people, policymakers, and advocates to discuss the unique challenges faced by LGBT people and people living with HIV in the criminal legal system. White House officials in attendance included Ashley Allison, Deputy Director of Public Engagement and Senior Policy Advisor, Roy Austin, Deputy Assistant to the President for Urban Affairs, Justice and Opportunity, White House Domestic Policy Council, Michael Botticelli, Director of National Drug Control Policy, and Raffi Freedman-Gurspan, Senior Associate Director for Public Engagement, the first openly transgender White House appointee. In addition, Robert Moossy, Jr., Deputy Assistant Attorney General at Civil Rights Division, U.S. Department of Justice, also presented at the briefing.

At the briefing, there was discussion concerning discriminatory policing and other factors driving LGBT people into the criminal legal system such as HIV criminalization, youth homelessness, and high rates of poverty and discrimination against LGBT people, as well as conditions of confinement in federal prison, as well as HIV and other health issues. Experts presented cutting edge research, information about innovative programs from around the country, and policy recommendations.

Earlier this year, NACDL's board of directors unanimously adopted a resolution opposing all laws that base criminal liability and/or penalty enhancements on one's HIV status rather than on the intent to harm another individual.

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, DC. 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 9, 2017. 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 7, 2016.

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

Surveillance Self Defense: A Series of NACDL Primers
The Fourth Amendment is being redefined in the digital age. Surveillance programs and technologies that were ostensibly created and implemented to combat terrorism are being used in every aspect of the criminal justice system and are impacting Fourth Amendment protections in criminal cases as well as litigation strategies. NACDL is producing a series of primers to introduce different surveillance programs and techniques to defense lawyers and provide strategies and resources to combat these new challenges in cases. In this ongoing project, the first three primers focus on Automated License Plate Readers, Cell Phone Location Tracking, and Cell Site Simulators—they are available on NACDL's website.
Advocacy Resources: What NACDL Can Do for You

Visit NACDL's Take Action webpage for state and federal legislative updates and action alerts. You can find more advocacy information and resources in NACDL's Advocacy Resource Library.

Please contact NACDL's Grassroots Advocacy Manager, Monica L. Reid, at mreid@nacdl.org for any advocacy question or need.

Federal Action Alerts

Act Now to Stop Expansion of Government Hacking Authority 

Recently, the Supreme Court transmitted to Congress an amendment to Rule 41 of the Federal Rules of Criminal Procedure, proposed by the Department of Justice and approved by the Advisory Committee on the Federal Rules of Criminal Procedure. Rule 41 authorizes federal magistrate judges to issue warrants for law enforcement searches and seizures. The current rule requires the government to get a warrant from a judge in the jurisdiction where they want to conduct the search (except in certain limited circumstances). The amendments to Rule 41 would allow the government to apply for warrants in one jurisdiction to conduct remote searches of computers located in another.

Act now to stop this massive expansion of government surveillance and hacking authority! Tell Congress to support the "Stopping Mass Hacking Act" and reject the changes to Rule 41! 

President Obama has "Banned the Box" – Tell Congress to do the same! 

Last year, President Obama directed the Office of Personal Management (OPM) to take action to "Ban the Box" in federal employment hiring practices, delaying inquiries into criminal history until later in the hiring process. As you may know, the Senate Committee on Homeland Security and Government Affairs reported S. 2021, the Fair Chance to Compete for Jobs Act of 2015, favorably from the committee. This legislation would go a step further by requiring federal contractors to "Ban the Box" as well. NACDL sent a letter to President Obama urging him to "Ban the Box" and signed onto the coalition letter in support of S. 2021.

Contact your Senators today and urge them to support S. 2021! 

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.
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.
NACDLConnect
Have you checked out NACDLConnect lately?  In addition to the Daily Criminal Justice Briefing, NACDLConnect features three exclusive discussion groups, for members only: a General, a White Collar Crime, and a Young & New Lawyers discussion.  NACDL Members use these groups to connect with each other, share knowledge, and strategize together for the good of all. Log in at https://connect.nacdl.org! Get started today at https://connect.nacdl.org/faq1.
New Affinity Partners

LawPay 

Sign up for credit card processing services customized to meet the unique needs of lawyers and law firms. NACDL members receive low transaction fees and the ability to set up escrow accounts. Get paid now by accepting credit cards. More>> 

Page Vault 

NACDL welcomes its newest affinity partner! Page Vault enables lawyers to easily and securely capture web content—everything from standard web pages, to blogs, and social media pages—for subsequent use as evidence in U.S. courts. NACDL members receive 10-15% off subscription services. More>> 

Townsquare Interactive 

One of NACDL’s newest affinity partners is Townsquare Interactive. Members receive 25% off marketing services, and the setup fee is waived! More>> 

In Other News

Upcoming Committee Meetings
Dates and times for upcoming meetings will be posted here early during the week of October 3.

Upcoming CLE Events
View the Calendar

Recent Updates to Restoration of Rights Project
View Restoration of Rights Project

Employment Opportunities
View Employment Opportunities

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