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NACDL E-News

October 31, 2017; Vol. 16 No. 10

Last Chance to Join the NACDL-Sponsored 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. The ceremony will take place on the morning of January 16, 2018. 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, 2017.

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

NACDL/FAMM State Clemency Project Seeking Volunteer New York Attorneys

The NACDL\FAMM State Clemency Project is seeking volunteer New York attorneys for critical state clemency work. The project, designed to help recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners in submitting petitions to have their sentences commuted, has begun assigning cases in New York. The project has developed procedures to provide an initial packet of records for each applicant and to facilitate quick access to records and easy communication with applicants.

To learn more and to volunteer, visit here or email Project Manager Steven Logan at slogan@nacdl.org.

NACDL’s First Amendment Strike Force and Mass Defense Unit Seeking Volunteers

NACDL has a long tradition of fighting to protect constitutional principles and standing up for the individual against the government. In keeping with that tradition, on September 19, 2017, the Foundation for Criminal Justice (FCJ) and NACDL launched the First Amendment Strike Force and Mass Defense Unit.

The goal of this project is to provide qualified counsel to represent protesters when the exercise of First Amendment rights results in arrest and prosecution. Specifically, NACDL supports a cadre of criminal defense lawyers who will be available to provide pro bono assistance to protesters throughout the country in the event of mass arrests. For those lawyers who volunteer, NACDL will maintain a database of available counsel and provide training and support at no cost.

Lawyers wishing to volunteer, please send an email to firstamendment@nacdl.org providing your bar number and indicating the state(s) in which you are admitted and are willing to provide pro bono assistance in the event of arrests related to mass protests.

Here is a link to a short podcast so that you can hear from a handful of the volunteer attorneys who are making this important project possible as they explain why it is that they are offering their time and expertise for this important effort.

To read more about the First Amendment Strike Force and Mass Defense Unit, visit here.

ACLU Brings Federal Class Action Challenging South Carolina Sixth Amendment-Free Zones; Builds on Important NACDL Research

On October 12, 2017, the American Civil Liberties Union (ACLU) filed a federal class action lawsuit against the City of Beaufort and the Town of Bluffton, both in South Carolina. The U.S. Constitution's Sixth Amendment guarantees that a person accused of a crime has the right to a lawyer, whether or not the individual can afford to hire one. In South Carolina, the bulk of criminal cases are offenses heard in municipal and magistrate courts, collectively referred to as summary courts. As explained in the ACLU press release, the suit challenges "South Carolina municipal courts' unconstitutional practices of denying lawyers to people who can't afford private attorneys and are sentenced to incarceration. In the city of Beaufort and the town of Bluffton's municipal courts, people are prosecuted, convicted, sentenced, and jailed without being provided public defenders, or even advised of their right to counsel, violating the Sixth and Fourteenth Amendments."

The complaint cites two important reports commissioned by NACDL exposing the pervasive violations of constitutional rights in South Carolina's summary courts. Last year, NACDL released its first report on South Carolina's summary courts, Summary Injustice: A Look at Constitutional Deficiencies in South Carolina's Summary Courts. This first report was a joint project with the ACLU and the ACLU of South Carolina. Then, earlier this year, NACDL released its second report on South Carolina's summary courts, Rush to Judgment: How South Carolina's Summary Courts Fail to Protect Constitutional Rights.

On October 18, 2017, NACDL released an in-depth podcast, "South Carolina's Sixth Amendment-Free Zones," featuring Diane DePietropaolo Price, who served until recently as NACDL's Public Defense Training Manager, and Dr. Alisa Smith, the Chair of the Department of Legal Studies at the University of Central Florida. Diane was the lead author of the 2016 Summary Injustice report. Dr. Smith was the lead researcher and co-author of Rush to Judgment.

Read more here.

NACDL Lauds Senate Introduction of Strong Criminal Intent Legislation

On October 2, 2017, Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced important legislation to address the erosion of the criminal intent, or mens rea, requirement in federal criminal law, the Mens Rea Reform Act of 2017. As explained in a news release issued by Sen. Hatch’s office, this bill "would set a default intent standard for all criminal laws and regulations that lack such a standard…. [and] would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof of a guilty mind." Sen. Hatch also delivered a speech about the important of mens rea reform yesterday on the floor of the U.S. Senate, citing support from NACDL, the Federal Defenders, and others.

For many years, there has been a drift away from the core requirement that the government prove some sort of culpable criminal state of mind to commit an illegal act before it can take away someone's liberty. And it has been accompanied by a dramatic rise in the number of federal criminal statutes and criminal regulations. There is a real risk that these laws are used to prosecute and imprison individuals who do not in fact have the knowledge, intent, or any culpable mental state with respect to the acts for which they are prosecuted.

"NACDL applauds the introduction of this important legislation," said NACDL President Rick Jones. "Adequate intent requirements are essential to fundamental fairness. Our system is already out of balance in the power and unchecked discretion it affords the prosecution. The time is now to pass this critically important legislation."

As explained in a 2015 speech, NACDL Executive Director Norman L. Reimer said: "Intent requirements are the moral anchor of our criminal law…. It is critical – especially for the little guy who cannot afford cadres of high priced lawyers to analyze every statute and regulation – that we produce meaningful reform that will ensure that every criminal statute has a precisely defined intent requirement."

Read more here.

George D. Perrot Has Charges Dismissed Based on Flawed Microscopic Hair Comparison Analysis Testimony

On October 18, 2017, prosecutors in Massachusetts dismissed charges against George D. Perrot. In January 2016, Perrot was granted a new trial based on newly-discovered evidence that the FBI's microscopic hair comparison testimony contained scientifically invalid statements. The errors in the hair comparison testimony in Mr. Perrot's case were identified through the FBI's Review, conducted in conjunction with the DOJ and in partnership with NACDL and the Innocence Project. When the new trial was granted, the court found that the hair examiner's testimony was "enormously influential" and material to the convictions. While prosecutors had originally appealed this court's ruling, they stated in court documents that "the interests and administration of justice are best served by the termination of prosecution of this matter."

Vanessa Antoun, NACDL's Senior Resource Counsel said: "NACDL is very pleased that the charges against Mr. Perrot were dismissed, especially given that the convictions hinged on scientifically unsupported microscopic hair comparison testimony. We are hopeful that other convictions involving unreliable forensic evidence will also have a just result."

"Mr. Perrot can now seek to move on after 30 years of unjust incarceration," said NACDL President Rick Jones. "Grave miscarriages of justice like this underscore the critical importance of the DOJ and FBI's recognition that there is a duty to review and correct in criminal cases. This case further illustrates why the government must expand its review to other forensic disciplines to ensure that the evidence used is scientifically valid."

Mr. Perrot is the first to have his conviction vacated and dismissed based on the results of the FBI Microscopic Hair Comparison Analysis Review Project. His is one of over 1,800 cases that have been reviewed thus far.

Read more here. To learn more about the Microscopic Hair Comparison Review Project, please visit http://www.nacdl.org/haircomparison/.

NACDL Endorses Bipartisan Surveillance Legislation, USA RIGHTS Act, Introduced in the Senate and the House

On October 24, 2017, Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.), together with nine additional co-sponsors, introduced the bipartisan USA RIGHTS Act, a bill that significantly reforms warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 surveillance is supposed to target the communications of non-U.S. persons overseas, but often captures purely domestic communications. Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Tex.), and Beto O’Rourke (D-Tex.) introduced a companion bill in the House of Representatives.

This legislation goes a long way to bring Section 702 surveillance in line with constitutional protections. The bill would address critical failings in the way the program is currently implemented including ending "about" collection, in which the government was collecting not only the communications of the targets themselves, but also any communications that mentioned the targets. It would also largely close the "back door search" loophole that the government is using to search information collected without a warrant for subsequent use in domestic criminal cases. To address the practice of "reverse targeting," the bill would require the government to get a warrant anytime a significant purpose of targeting a foreign person is to collect the communications of a U.S. person. Finally, it addresses the critical issue of notice for the accused in criminal cases by defining "derived from" 702 surveillance as information that would have developed but for FISA evidence. The legislation would sunset in 4 years.

"The government should not be in the business of collecting and storing massive amounts of electronic communications. The government has shown repeatedly that it cannot be trusted to access that data with restraint and in accordance with fundamental constitutional protections. Clear restrictions must be legislated by Congress, or this program should be allowed to expire," said NACDL President Rick Jones. "The USA RIGHTS Act effectively addresses many of the ways in which the government was using Section 702 surveillance to skirt Fourth Amendment protections."

Read more here. The full text of the Senate bill is available here. One-page and full summaries are available here and here, respectively.

NACDL Releases Primer on Protecting Digital Devices at the Border

Customs and Border Protection (CBP) agents search and seize electronic devices at border crossings and ports of entry without a warrant and many times without suspicion. Lawyers crossing the border with a laptop, smartphone, tablet, or other digital devices could be forced to share privilege-protected communications and materials. "Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer’s Primer" will educate criminal defense lawyers about the implications of CBP's claimed powers and offer strategies that will help them comply with their ethical obligations and responsibilities to their clients when entering the U.S.

CBP does not guarantee protection for privileged communications between attorneys and their clients when it searches digital devices. Thus, attorneys crossing the border may find themselves in violation of Rule 1.6 of the Model Rules of Professional Conduct, which establishes that "[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent." NACDL has strongly expressed its concern with CBP's current policy.

"Defense lawyers need to know what’s at stake," said NACDL President Rick Jones. "Disclosure of confidential information has become an inherent risk of warrantless electronic searches at the border. CBP policy presents a specific threat to NACDL members who use electronic devices to store confidential materials that fall under the purview of attorney-client privilege."

According to NACDL's National Security Committee Co-Chair Joshua Dratel, "There's a disconnect that exists between a defense attorney's ethical obligation to their client and what CBP thinks it can do. CBP policy offers only a narrow exception of what documents are privileged. This policy fails to comply with the need for attorneys to protect the confidentiality of all protected client communications and case materials."

Read more here. To read the full text of the primer and learn how criminal defense attorneys can protect their digital devices, click here.

General Finds Good Cause to Allow the Withdrawal of Three Members of Defense Team in U.S.S. Cole Trial at Military Commissions in Guantanamo; Proceedings Plagued by Government Violations of Attorney-Client Privilege

On October 13, 2017, Brig. Gen. John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, found good cause to allow the withdrawal of three members of the defense team in the case of United States v. Nashiri due to concerns that the government compromised attorney-client confidentiality. United States v. Nashiri is the trial of Abd al Rahim al Nashiri, who is the alleged mastermind of the 2000 bombing of the U.S.S. Cole.

Rick Jones, President of NACDL, issued the following statement on October 13:

"The accusations of government overreach have plagued the Guantanamo military commissions since their inception. Instances of the government eavesdropping on confidential attorney-client conversations have been documented repeatedly, from them using fake smoke detectors as listening devices to attempting to turn non-attorneys on the defense team into informants.

"Today’s excusal of three defense lawyers proves again the flawed nature of these commissions. Attorney-client privilege is a linchpin to any fair criminal trial. Without it, justice cannot be sought nor served.

"General Baker found good cause to allow the withdrawal of three civilian lawyers, including Mary Spears, Rosa Eliades, and learned counsel Richard Kammen. Regardless of whether this is due to outrageous overreach or deliberate malicious action by the government, today’s action proves that the military commissions system is fundamentally damaged. This government interference with the defense team caused an ethical crisis which dealt yet another blow to an already flawed system."

Read more here.

NACDL Past President Barbara E. Bergman Receives Prestigious University of New Mexico School of Law Distinguished Achievement Award

On October 20, 2017, at the University of New Mexico School of Law, NACDL Past President Barbara Bergman was presented with the 2017 Distinguished Achievement Award. The purpose of the Distinguished Achievement Award is to honor the dedicated service of lawyers and others in the legal community to the UNM School of Law, the New Mexico legal community, and the greater community inside and outside of New Mexico. Past awardees include NACDL Past President Nancy Hollander, Senator Tom Udall, and the first female justice of the New Mexico Supreme Court, Mary C. Walters.

The 2000 recipient of NACDL's Robert C. Heeney Award, Bergman served as President of NACDL from 2005-06 and currently serves as national co-chair of NACDL's Amicus Curiae Committee. She also serves as Director of Advocacy and Professor of Law at the University of Arizona and as Emerita Professor of Law at the University of New Mexico. Bergman is renowned both locally and nationwide for her leadership in academia and criminal defense. She received her undergraduate from Bradley University and her J.D. from Stanford Law School.

Read more here.

Join NACDL for a Free Webinar on HIV Criminalization on December 7, 1:30pm-3:00pm ET
NACDL will host a free webinar on HIV criminalization on Thursday, December 7, 1:30pm-3:00pm ET, featuring Dr. David Wohl, Professor of Medicine at the University of North Carolina School of Medicine, and Stephen Scarborough, Attorney. This webinar will provide viewers with a medical primer about the current state of medicine regarding HIV research and treatment. It will be coupled with a discussion on how to use medical research to develop defenses, present the court with mitigation, negotiate favorable please for clients, and litigate constitutional, evidentiary, and discovery issues. There will also be a section exploring the ethical issues that attorneys must grapple with when handling these cases. 1.5 CLE hours of credit have been requested and are pending approval.
Legislative Advocacy

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.

State Legislative Tracking 

Click here for a complete listing of all legislation NACDL is currently tracking, sorted by issue area. Under each issue area you can either view legislation in select states or view all legislation. To jump to your particular state of interest, just click on the state on the map.

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

Tell Congress: It's Time to Support Strong Surveillance Reforms or End Warrantless Surveillance 

NACDL has long expressed concern about the U.S. government collecting and storing the electronic communications of people in the U.S. without a warrant using programs designed to capture the communications of non U.S. persons outside the country. The government uses Section 702 of the Foreign Intelligence Surveillance Act (FISA) to do just that. Senators Wyden and Paul, along with nine other Senators, introduced the USA RIGHTS Act, S. 1997. USA RIGHTS Act is a bipartisan bill to significantly reform one of the U.S. government’s most invasive warrantless surveillance programs before it sunsets at the end of the year. Representatives Zoe Lofgren, D-Calif., Ted Poe, R-Texas, Rep. Beto O’Rourke, D-Texas, Rep. Justin Amash, R-Mich., Rep. Ted Lieu, D-Calif., and Rep. Thomas Massie, R-Ky., introduced companion legislation in the House of Representatives, H.R. 4124.

S. 1997/H.R. 4124 goes a long way to bring Section 702 surveillance in line with constitutional protections. The bill would address critical failings in the way the program is currently implemented including ending "about" collection, in which the government was collecting not only the communications of the targets themselves, but also any communications that mentioned the targets. It would also largely close the "back door search" loophole that the government is using to search information collected without a warrant for subsequent use in domestic criminal cases. To address the practice of "reverse targeting," the bill would require the government to get a warrant anytime a significant purpose of targeting a foreign person is to collect the communications of a U.S. person. Finally, it addresses the critical issue of notice for the accused in criminal cases by defining "derived from" 702 surveillance as information that would have developed but for FISA evidence. The legislation would sunset in 4 years.

Act now – tell Congress that it’s time to support strong surveillance reforms or let Section 702 sunset!

House Votes to Keep Restrictions on Civil Asset Forfeiture – Act Now in Support of the FAIR Act! 

Recently, Attorney General Sessions directed federal law enforcement to increase and expand its civil asset forfeiture program, despite strong bipartisan legislative support to limit the program based on due process and fairness concerns. In response, earlier this month, the House of Representatives voted to maintain restrictions on the federal civil asset forfeiture program. Specifically, the House directive reinstates some restrictions that were placed on the program in recognition of due process and fairness concerns. Most notably, reinstated were restrictions on "adoptive seizures" that allow state and local law enforcement to seize assets and then transfer those assets to federal control in evasion of state laws that would otherwise have limited or prohibited the forfeitures. These restrictions have been included in the House appropriations bill, which is tabled until the current Continuing Resolution expires in December.

NACDL is continuing to put pressure on Congress to pass forfeiture reform. Currently pending is the "Fifth Amendment Integrity Restoration Act of 2017" or the "FAIR Act" (H.R. 1555/S.642). The FAIR Act would reform federal civil forfeiture law by giving property owners more protections and reducing the profit incentive to law enforcement agencies. Ask your Members of Congress to pass the FAIR Act.

Act Now to Stop Congress from Fueling the War on Drugs – House Bill Advances from Judiciary Committee 

NACDL is continuing to see a trend of “tough-on-crime” criminal justice bills and policies, some of which seek to reignite the failed War on Drugs. The latest bill following this trend is the “Stop Importation and Trafficking of Synthetic Analogues Act of 2017” or “SITSA.”

H.R. 2851/S. 1327 would expand penalties for drug offenses, add mandatory minimum sentences to the federal code, and give the Attorney General power to decide which drugs should be criminalized and to set criminal penalties. In June, Attorney General Jeff Sessions pinned an op-ed in the Washington Post to justify his policy directive rolling back the Smart on Crime policy and reinstituting the use of mandatory minimum drug sentences. In July, the House Judiciary Committee advanced H.R. 2851.

Help NACDL push for meaningful criminal justice reforms that will reduce the nation’s prison population, reform sentencing structures, and push back against regressive "tough-on-crime" legislation such as this. Ask your members of Congress to oppose bringing back the War on Drugs!

Act Now to Stop ICE Agents from Making Arrests at Courthouses 

Since the onset of the new administration, there has been an increase in Immigration and Custom Enforcement (ICE) agents making arrests at courthouses and other sensitive locations. These incidences have already occurred in Denver, New York, Los Angeles, and other cities around the country.

Fortunately, legislation has been introduced to curb this practice – the Protecting Sensitive Locations Act (H.R. 1815 and S. 845). These bills would codify limits on immigration enforcement actions at or near sensitive locations and would expand the definition of sensitive location to include any federal, state, or local courthouse, including the office of an individual’s legal counsel or representative, and a probation office (among other additional locations).

Act now to support legislation to curb this troubling practice. Ask your members of Congress to support H.R. 1815 and S. 845.

Take Action to Support Expanding Federal Expungement Eligibility  

The Record Expungement Designed to Enhance Employment Act, or the REDEEM Act, H.R. 1906/S. 827, would automatically seal and, in some cases, expunge juvenile records. It would also allow adults convicted of nonviolent crimes to petition a court to have their records sealed.

Help NACDL reduce the collateral consequences of returning citizens by contacting your Member of Congress today and urging them to support the REDEEM Act!

Take Action to "Ban the Box" 

Legislation to "Ban the Box" at the federal level has been reintroduced this Congress. The Fair Chance Act, H.R. 1905/S. 842, would require the federal government and federal contractors to postpone a request for criminal history information from job applicants until the applicant has received a conditional offer of employment.

Help NACDL reduce the barriers to employment for formerly incarcerated people by contacting your Member of Congress today!

Act Now to Prevent the Expansion of the Federal Death Penalty 

Currently pending in Congress is a bill, H.R. 115, that would expand the federal death penalty statute by adding a 17th statutory aggravating factor for the killing or attempted killing of a law enforcement officer, firefighter, or other first responder who dies while engaged in the performance of their official duties or because of their status as a law enforcement officer. The House passed the measure with a vote of 271-143. It is now awaiting action in the Senate.

Contact your Senators today and urge them to oppose H.R. 115!         

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