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NACDL E-News

June 26, 2018; Vol. 17 No. 06

NACDL’s website (www.nacdl.org) Goes Mobile and More Changes are Coming
You may have noticed NACDL’s website is now mobile friendly. But that’s not all. Additional upgrades are currently in the works, including a full redesign of NACDL’s website. The project is already underway, with hopes of launching the new website in 2019.
Federal Court Vacates Contempt Conviction Against Marine Brig. Gen. John Baker, Chief Defense Counsel for the Military Commissions, Following Action by NACDL’s Lawyers' Assistance Strike Force

On June 18, 2018, U.S. District Court Judge Royce Lamberth vacated the criminal contempt conviction against Marine Brig. Gen. John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization (MCDO). In a 27-page opinion, the Court found that Military Judge Spath’s summary conviction of General Baker was “unlawful because only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A” and “a military judge is not a member of a military commission nor is he ‘the military commission’ within the meaning of that chapter.”

On November 1, 2017, General Baker had been held in contempt by Judge Spath and sentenced to 21 days confinement in his quarters and a $1,000 fine. General Baker was held in contempt after his determination on October 13, 2017, that there was good cause to allow the withdrawal of three civilian 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. Judge Spath held General Baker in contempt for declining to rescind his decision allowing the three civilian lawyers to withdraw.

Barry J. Pollack, National Association of Criminal Defense Lawyers (NACDL) Immediate Past President and a partner at the law firm of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP in Washington, who took on the pro bono representation of General Baker at the behest of NACDL's Lawyers' Assistance Strike Force, said: "[The] decision confirms that the contempt finding was unlawful. Brigadier General Baker should have never been found in contempt for decisions he made admirably serving his country and the rule of law. "

NACDL President Rick Jones said: "Given the repeated instances of attorney-client privilege violations at Guantanamo, having the temerity to punish defense lawyers for doing their job was indeed a new low. But Judge Spath’s finding of contempt was one a federal court has now clearly stated cannot stand. That said, the military commissions are seriously flawed. And they remain so."

NACDL has long been concerned about attorney-client privilege at Guantanamo, as reflected, for example, in its 2012 NACDL ethics opinion. Previous NACDL statements on Guantanamo and attorney-client communications can be found herehereherehere, and here.

NACDL Applauds U.S. Supreme Court Decision in Carpenter

On June 22, 2018, the U.S. Supreme Court issued its decision in Carpenter v. United States (16-402). The question presented in Carpenter was “whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment?” In a 5-4 decision authored by Chief Justice Roberts and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, the Court held that the Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search and therefore generally requires a warrant.

"[The] decision takes into account the 'seismic shifts' in technology and provides hope that privacy rights will survive in the digital age," said NACDL President Rick Jones.

"The Court’s message is clear: digital is different," said NACDL’s Fourth Amendment Center Senior Litigation Counsel and Co-Author of NACDL’s joint amicus brief Michael Price. "In declining to extend the ‘third-party doctrine’ to cell phone location records, the Court recognizes that data generated by new technologies may be an ‘entirely different species’ of information that demands Fourth Amendment protection."

The National Association of Criminal Defense Lawyers (NACDL), together with the Electronic Frontier Foundation, Brennan Center for Justice, Constitution Project, and National Association of Federal Defenders, filed a joint amicus brief in support of the petitioner in Carpenter. In that brief, amici argued that: (i) there has been a dramatic increase in location data generated by cell phones, collected by third parties, and routinely obtained by law enforcement without a warrant, (ii) Cell Site Location Information (CSLI) paints a revealing portrait of a person's movements, presenting even greater privacy concerns than the GPS tracker at issue in Jones, and (iii) the “third-party doctrine” is "ill-suited to the digital age" and should not apply to CSLI.

To learn more about NACDL's extensive work in the Fourth Amendment arena, visit www.nacdl.org/fourthamendment.

Telephonic Briefing on June 27: Carpenter v. United States 

NACDL will host a telephone briefing tomorrow, Wednesday, June 27, at 2pm, on the Supreme Court’s recent decision in Carpenter v. United States, requiring a warrant to obtain cell phone location data from service providers.

On hand to break down the Carpenter opinion and its implications will be:

  • John Wesley Hall, NACDL’s 50th Past President and one of the nation’s top experts in Fourth Amendment law
  • Michael Price, Senior Litigation Counsel for NACDL’s Fourth Amendment Center

What did the Court decide, and when is a warrant required to access cell phone location data? What does Carpenter mean for the “third-party doctrine”? Can Carpenter extend to cover other types of data? Does Carpenter change how defense lawyers should frame new Fourth Amendment challenges? Dial in tomorrow at 2pm for an expert analysis of these questions and more:

Dial:  515-739-1030

Meeting:  672-164-679

July 2, 2018 Event: Location Privacy after Carpenter 

There has been a dramatic increase in location data generated by cell phones, collected by third parties, and routinely obtained by law enforcement without a warrant. The Supreme Court in Carpenter v. United States recently decided that law enforcement generally needs a warrant to access Cell Site Location Information (CSLI). The decision found that the “seismic shift” in technology requires increased protection for some digital data. NACDL along with the Georgetown Center on Privacy and Technology will be hosting an event “Location Privacy after Carpenter” to discuss the ramifications of the Carpenter decision. The event will be held at Georgetown University Law Center on Monday, July 2, from 10:30 - 2:30ET and will be livestreamed.

You can register here: https://www.eventbrite.com/e/location-privacy-after-carpenter-tickets-47018417352 

President Trump Brazenly Seeks to Defy the Constitution He Swore to Defend

On June 24, 2018, the U.S. President called for the wholesale and illegal deprivation of due process to an entire category of persons in the United States. He tweeted, among other things:

“We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”  

In addition, it was reported that immigrants whose children were forcibly taken from them by U.S. officials have been told that they can have their children back if they waive their right to an asylum hearing and sign a voluntary deportation order.

“These stated positions and practices on the southern border are illegal and selective,” said National Association of Criminal Defense Lawyers (NACDL) President Rick Jones. “They constitute nothing short of a brazen attack on the very core of the oath of office he took – to ‘preserve, protect, and defend the Constitution of the United States.’ There is no room in a rule of law nation for sweeping, authoritarian pronouncements such as these. And it is entirely unacceptable for the American government to have taken children from their families in the first place, never mind to now use those children to extort waivers of rights under the law.”

“NACDL is proud to stand with our colleagues in the immigrant rights community to defend the Constitution, the rule of law, common decency, and all the humanitarian bonds that are the essence of a nation of immigrants,” said NACDL Executive Director Norman L. Reimer.

NACDL Mourns the Passing of NACDL Past President Ronald I. Meshbesher

On June 13, 2018, Minneapolis, Minn. attorney and Past President (1984-85) and Life Member of the National Association of Criminal Defense Lawyers (NACDL), Ronald I. Meshbesher, passed away. He was 85 years old.

Meshbesher was the founder and President of Meshbesher & Spence, a Minnesota firm specializing in personal injury, class action, and civil litigation, in addition to criminal defense. He gained a respected reputation in several important criminal cases in Minnesota, including the Piper kidnapping case (still on FBI record as the largest unsolved kidnapping case), the Elizabeth Congdon murder trial, and the Ming Sen Shiue murder and kidnapping case, among numerous others. His professional success led the Minneapolis Star Tribune to dub Meshbesher as the “dean of the Minnesota criminal-defense bar for 45 years.”

Read more here.

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 8, 2019. 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 October 31, 2018.

Interested members should contact Shuli Carroll, NACDL’s National Affairs Assistant, at (202) 465-7638 or scarroll@nacdl.org, for further instructions.

NACDL’s Fourth Amendment Center

NACDL’s Fourth Amendment Center now offers direct assistance to defense lawyers handling cases involving new technologies and tactics that may infringe on privacy rights of Americans. The Center’s staff is available to help members of the defense bar in bringing new Fourth Amendment challenges, providing a range of support: from training and resources to expert consultation and direct litigation, all free of charge.

Launched in April 2018, the Fourth Amendment Center seeks to build a robust legal infrastructure to challenge outdated legal doctrines that undermine privacy rights in the digital age. To this end, the Center is now available provide litigation assistance in cases raising new Fourth Amendment concerns, including:

  • Searches & seizures of personal data held by “third-party” service providers (the “third-party doctrine”);
  • Overbroad searches & seizures of electronic devices or online accounts;
  • Electronic location tracking, including cell site simulators (“Stingrays”);
  • Government hacking and use of “network investigative techniques”;
  • New law enforcement technologies: predictive policing, facial recognition and biometric identification, and drone/aerial surveillance.

Defense lawyers with cases involving any of these issues are encouraged to contact NACDL’s Fourth Amendment Center. The Center is available to provide consultations and litigation resources as well as direct assistance in support of a defendant’s Fourth Amendment claims. Specifically, the Center may assist in motion practice, preparation for suppression hearings, as well as appellate strategy, brief writing, and oral argument. The Center also provides group trainings for defense lawyers around the country and upon request.

To request assistance or additional information, contact:

  • Jumana Musa, Director, Fourth Amendment Center: (202) 465-7658, jmusa@nacdl.org 
  • Michael Price, Senior Litigation Counsel, Fourth Amendment Center: (202) 465-7615, mprice@nacdl.org.
SITSA Act Passes the House, Expanding Penalties for Drug Offenses
H.R. 2851, the Stop Importation of Trafficking of Synthetic Analogues (SITSA) Act, passed the House earlier this month with a vote of 239-142. H.R. 2851 would expand the penalties for drug offenses and give the Attorney General power to decide which drugs should be criminalized and set criminal penalties, without court review or congressional approval. No Attorney General has had or should have this power. Tough-on-crime criminal justice policies like this do nothing but fuel the failed War on Drugs. NACDL signed onto a coalition letter to House leadership voicing opposition to the measure and will continue to monitor the bill through the legislative process
State and National Groups Weigh in on Proposal to Reform Criminal Discovery in Virginia
The Supreme Court of Virginia is currently considering a proposal to revise its criminal discovery rules, proposed by the Virginia State Bar’s Criminal Discovery Reform Task Force. Public comment on the proposal was accepted through June 1st, with a number of state and national organizations submitting comments in support of the proposed revisions, which include access to police reports, reciprocal pretrial witness lists and reciprocal pretrial notice of expert testimony. You can read NACDL’s comments here and our organizational sign-on letter here. For more information on NACDL’s criminal discovery reform efforts in Virginia, listen to episode 59 of The Criminal Docket podcast.
House Expands Food Stamp Ban for People with Criminal Records
The House recently passed a measure, H.R. 2, the Agriculture and Nutrition Act of 2018 (known as the “Farm Bill”), with a vote of 213-211. The measure would extend existing law that excludes people convicted of felony drug offenses from receiving access to the Supplemental Nutrition Assistance Program (SNAP) by creating a lifetime ban for people convicted of violent offenses. This ban would apply in every state. NACDL will continue to monitor this measure, as well as the Senate’s version of the “Farm Bill” for any new developments.
NACDL’s Presidential Summit and 17th Annual State Criminal Justice Network Conference
On behalf of the National Association of Criminal Defense Lawyers (NACDL), NACDL’s State Legislative Affairs Committee, and the NACDL Foundation for Criminal Justice, we invite you to participate in NACDL’s Presidential Summit held in conjunction with the 17th Annual State Criminal Justice Network Conference, Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity, Thursday, August 23 – Friday, August 24, 2018 at the Marriott Marquis in Atlanta, Georgia and Saturday, August 25, at the historic Ebenezer Baptist Church, the spiritual home of the Reverend Martin Luther King, Jr. You can find more information about the Summit here and here. For scholarship inquiries, please contact Angelyn at afrazer-giles@nacdl.org. The event will celebrate bi-partisan efforts to break the barriers faced by those with criminal records. Speakers include former DAG Sally Yates and Gov. Nelson Deal. Also in attendance will be Honorary Chair Mike Epps.
Champion of State Criminal Justice Reform Award
NACDL State Legislative Affairs Committee is accepting submissions for the Champion of State Criminal Justice Reform Award. More information can be found here and here.
NACDL's 2018 Election Notice
NACDL's Board of Directors will conduct a special election on July 29, 2018, to fill one vacancy on the board. Those interested in seeking election should consult here for deadlines, submission requirements, and other relevant information.
Legislative Advocacy

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 Senior Manager for Advocacy, 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 Senior Manager for Advocacy, at mreid@nacdl.org.

Federal Action Alerts

Federal Forfeiture Laws Need Reform Now! 

Currently pending in Congress 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. Now is the time for Congress to pass forfeiture reform! Ask your Members of Congress to pass the FAIR Act. 

Act Now to Stop ICE Agents from Making Arrests at Courthouses 

Beginning with the new administration, we have seen an increase in Immigration and Custom Enforcement (ICE) agents making arrests at courthouses and other sensitive locations. We’ve already seen these incidences 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 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 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 Expungement 

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 imposed on 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 was reintroduced this year. 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!

Take Action to Prevent the Expansion of the Federal Death Penalty 

Currently pending in Congress is, H.R. 115, a bill 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 his or her official duties or because of his or her status as a law enforcement officer. H.R. 115 passed the House with a vote of 271-143. It is now awaiting action in the Senate.

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

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