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November 30, 2016; Vol. 15 No. 11

In the Season of Giving Thanks, President Obama Issues Two More Sets of Clemency Grants; Total Grants Surpass 1,000

After commuting the sentences of 72 prisoners on November 4th, on November 22nd President Obama commuted the sentences of 79 more prisoners. Of those 79 grants, 54 were in cases supported by Clemency Project 2014. That brings the total number of commutations granted by President Obama to date to 1,023, of which 523 were supported by Clemency Project 2014.

"With more than 1,000 grants of clemency, President Obama has ensured that 1,000 families will sit at a dinner table this week or in the not-too-distant future and give thanks together," said Cynthia W. Roseberry, project manager for Clemency Project 2014, noting the proximity to Thanksgiving of the most recent round of grants. "More than half of these applicants and their families were helped by the dedicated lawyers and staff of Clemency Project 2014. We include [these] grants in our list of things for which we give thanks."

To date, Clemency Project 2014 has submitted more than 2,400 petitions to the Office of the Pardon Attorney.

Read more here and here.

NACDL Welcomes Legislation to Delay Proposed Rule Changes Designed to Enable Sweeping Government Hacking Power

NACDL welcomed the November 17th bipartisan introduction of the Review the Rule Act to delay for six months implementation of proposed changes to Rule 41 of the Federal Rules of Criminal Procedure. In the Senate, the legislation (S. 3475) is co-sponsored by U.S. Senators Christopher Coons (D-DE), Steve Daines (R-MT), Mike Lee (R-UT), Ron Wyden (D-OR), Al Franken (D-MN), Tammy Baldwin (D-WI), and Rand Paul (R-KY). The House legislation (H.R. 6341) is co-sponsored by Representatives John Conyers, Jr. (D-MI) and Ted Poe (R-TX).

The proposed changes to Rule 41 would establish expansive new authority for any magistrate judge in the country to issue warrants to locate and search computers anywhere in the world. The changes would also give the government the authority to hack into the computers of crime victims. The delay would allow Congress the opportunity to hold hearings and study the proposed changes before they are implemented.

"We strongly encourage members of Congress to support this legislation to delay implementation of these rule changes," said NACDL President Barry J. Pollack. "Congress should not accede to rule changes that have a detrimental impact upon Americans' fundamental Fourth Amendment and privacy protections without careful examination. By extending for six months any automatic implementation of the proposed changes to Rule 41, this Congress would be affording the incoming Congress the critical opportunity to consider carefully the scope and impact of these sweeping proposed changes. Congress should also determine whether the important issues that the proposed rule changes seek to address should be taken up through an administrative rule making process at all or, rather, should be the subject of future legislation."

Read more here.

Department of Justice Files Yet Another Important Statement of Interest

Stinnie v. Holcomb is a class action lawsuit filed in the U.S. District Court for the Western District of Virginia challenging the constitutionality of Virginia's alleged practice of automatically suspending driver's licenses for failure to pay court debts. The plaintiffs allege that Virginia affords no opportunity for individuals whose licenses are suspended for nonpayment to be heard as to the reasons for nonpayment, and that the license remains suspended until the fees are paid or a payment plan is arranged and the person pays a license reinstatement fee. On November 7, 2016, the Department of Justice filed a statement of interest arguing that a driver's license is a protected interest that cannot be revoked without due process and that the automatic suspension of a license for failure to pay court debts without any inquiry into the individual's ability to pay is a violation of the Fourteenth Amendment. The result of such an action is that indigent individuals are effectively punished for their poverty, since defendants who can afford to pay do not face license suspensions.

The Department discussed the substantial harms that arise from the loss of a driver's license, including impediments to employment, education, and family care. Additionally, in 41 states and the District of Columbia, a first offense of driving with a suspended license can result in jail time, putting individuals who "have no other option but to drive unlawfully in order to work, care for their children, or attend crucial medical appointments" at constant risk of incarceration. (Statement at 18.) The Department also questioned the efficacy of the Commonwealth's practice of suspending licenses for nonpayment of fees in an attempt to compel compliance with court-ordered payments, citing several news articles and studies that show how individuals whose licenses are suspended are likely to lose their jobs, trapping them in a cycle of poverty. Instead, the Department highlighted other options available to the Commonwealth to accomplish its interest in punishing crimes and traffic violations committed by indigent persons, such as community service, completion of classes, or reducing fines to a level appropriate to the person's means.

The Department of Justice's news release about the statement of interest is available here. Read the statement of interest here.

Department of Justice Provides Resources to Maryland Rules Committee on Pretrial Release

On November 17, Lisa Foster, Director of the Department of Justice's Office for Access to Justice, sent a letter to the members of the Court of Appeals of Maryland's Standing Committee on Rules of Practice and Procedure. The Rules Committee was considering proposed procedure amendments pertaining to pretrial release.

The letter provides a background of the Department's previous work on pretrial release reform, and it reminds the Rules Committee that "the Department has promoted practices that do not discriminate against the poor and has called attention to the problem of discriminatory bail practices in state and local courts." Finally, it includes the Department's statement of interest in Varden v. City of Clanton, its amicus brief in Walker v. City of Calhoun, and its Dear Colleague Letter on nationwide problems with court fines and fees.

Read the letter here.

Exciting State Criminal Justice Network Events!

Conversation on Criminal Justice in the Commonwealth 

Please Join NACDL and the Charles Koch Institute for a Conversation on Criminal Justice in the Commonwealth on Tuesday, December 6, 2016, from 7:30-11:30 a.m. in Richmond, VA. Stakeholders from a variety of viewpoints will gather to examine current criminal justice policies in Virginia. The goal is to identify opportunities to improve safety, lower costs, and examine policies that assist individuals with criminal records.

The event will take place at the Crowne Plaza Richmond Downtown, 555 East Canal Street, Richmond, VA 23219. Click here for more information and to RSVP.

National Advocacy Call on the Militarization of Police 

Please join the State Criminal Justice Network on Friday, December 9, 2016, from 1:00-2:00 p.m. for a National Advocacy Call on Developing Legislation featuring a discussion on police militarization. Guests include Jumana Musa, NACDL's Senior Privacy and National Security Counsel, and Craig Atkinson, Director of the documentary Do Not Resist.

Ms. Musa will discuss President Obama's Executive Order (EO) 13688, the goal of which was to improve federal support for the appropriate use, acquisition, and transfer of controlled equipment. She will also discuss current issues relative to the Interagency Law Enforcement Equipment Working Group and what the future holds for the EO and Interagency within a new administration.

Mr. Atkinson's film follows the protests in Ferguson and subsequent Council and Congressional hearings regarding military equipment utilized by law enforcement. Click here for more information, and email the network to register for the call. 

NACDL 2017 Election Notice
NACDL's 2017 election will commence in the coming weeks. Individuals interested in running for officer positions or for the board of directors should consult www.nacdl.org/elections. Deadlines and procedures will be posted there by January 1.
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.
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 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.
New Book Release! Pattern Cross-Examination for Sexual Assault Cases: A Trial Strategy & Resource Guide

NACDL Publications just released its newest book, "Pattern Cross-Examination for Sexual Assault Cases," authored by Michael Waddington and Alexandra González-Waddington.

In sexual assault trials, many prosecution witnesses see themselves as advocates and members of the prosecution team. Some witnesses will do whatever is necessary to win and send the defendant to prison. This may include lying, exaggerating, and misstating facts. This book was written for criminal defense lawyers on the front lines in the war on sexual assault. It contains pattern questions that can be used to dominate prosecution witnesses and level the playing field at trial.

Designed to give defense counsel cross-examination questions that can be easily modified and used in a variety of sexual assault cases, this resource will help you cross-examine challenging witnesses without having to reinvent the wheel with each new case. It contains thousands of questions to effectively cross-examine a variety of witnesses, to include: the alleged victim; crime scene investigators; sexual assault forensic examiners; DNA experts, hostile witnesses, and more.

It covers a range of topics including: selective memory; victim injury; motive to lie; false allegations; false confessions; proper evidence handling; and more. The questions provided serve as a starting point. This is not a textbook on the theories of cross-examination, rather, it provides sample questions based on fact patterns commonly encountered in sexual assault cases.

Read more and purchase a copy here.

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In Other News

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