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September 27, 2018; Vol. 17 No. 09

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.

Supreme Court of Virginia Overhauls Criminal Discovery Rules; Major Victory for Broad, Bipartisan Coalition of Criminal Justice Reformers

On September 5, the Supreme Court of Virginia issued amended criminal discovery rules set to take effect July 1, 2019, marking the first such overhaul in decades. Specifically, the Court issued amended Rules 3A:11 (Discovery and Inspection) and 3A:12 (Subpoena) of the Rules of the Supreme Court of Virginia. The amended rules provide far greater pretrial disclosure by prosecutors, including the inspection and review of police reports and statements of co-defendants and alleged co-conspirators that are sought to be introduced at trial. The amended rules also create mutual obligations on the defense and prosecution relating to the exchange of witness lists and expert witness information.

After years of concerted efforts by numerous individuals and entities from across the ideological spectrum, in both the General Assembly and at the grassroots level in Virginia, the Supreme Court earlier this year again took up consideration of the matter of the Commonwealth’s rules for disclosure, known as discovery, in criminal cases. The Court determined it would consider revisions proposed by the Virginia State Bar’s Criminal Discovery Reform Task Force, inviting comments from throughout the Commonwealth and the nation. The National Association of Criminal Defense Lawyers (NACDL) was among those who submitted extensive comments to the Court.

Since 2015, NACDL has worked with its state affiliate, the Virginia Association of Criminal Defense Lawyers (VACDL), and other groups and individuals seeking discovery reform in Virginia, including Justice Forward Virginia, the Charles Koch Institute, the Innocence Project, the Mid-Atlantic Innocence Project, New Virginia Majority, legislators on both sides of the aisle, including Senate sponsor Bill Stanley, and numerous attorneys across the Commonwealth. These efforts included public education and community events, legislative lobbying, and grassroots campaigns.

For more information on NACDL’s extensive, years-long efforts as relates to discovery reform in Virginia, please visit https://www.nacdl.org/Virginia-Discovery-Reform/. And for more information about NACDL’s work on discovery reform at the federal level and elsewhere in the nation, please visit https://www.nacdl.org/discoveryreform/.

Read more here.

Judicial Conference Takes Steps Toward Greater Independence for Federal Public Defender System; Nation’s Criminal Defense Bar Encouraged by Progress

On September 13, the Judicial Conference of the United States, the national policymaking body for the federal court system, publicly released the 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act (CJA Review Committee) and issued a statement approving 19 of the Committee’s 35 Interim Recommendations (See CJA Review Committee Report at XXXVI to XL), importantly stating that “the Defender Services Office will be made an independent office within the Administrative Office, reporting at the executive level.” This re-elevation of the Defender Services Office reverses a step that was taken more than five years ago and was noted as a problematic development in the 2015 study issued by the National Association of Criminal Defense Lawyers (NACDL), linked and described below.

The CJA Review Committee was announced shortly before the September 2015 release of NACDL’s study: Federal Indigent Defense 2015: The Independence Imperative. The CJA Review Committee, according to the CJA Study flyer, was "[a]ppointed by Chief Justice John G. Roberts, Jr., …[to] conduct a comprehensive and impartial review of the Criminal Justice Act program, which secures the Sixth Amendment's right to counsel for federal criminal defendants." As part of its study, the CJA Review Committee held public hearings across the nation, taking testimony from leading stakeholders in the field, including then-NACDL President E.G. “Gerry” Morris. The Committee first delivered its report to Director James C. Duff at the Administrative Office of the U.S. Courts (AO) in November 2017.

NACDL’s Task Force on Federal Indigent Defense was established in the fall of 2013 during the budget crisis referred to as sequestration. From the severe funding cuts and resulting systemic damage during sequestration to the AO's demotion of the Defender Services Office from a "distinct high-level office" to its placement as one of the judiciary's many "Program Services," NACDL’s report documents the deficiencies of the current system and clearly calls for the independence of the defense function in the federal criminal justice system.

The 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act, as well as the Sept. 13, 2018, statement from the Judicial Conference, are available at http://www.uscourts.gov/news/2018/09/13/judicial-conference-addresses-workplace-conduct-and-criminal-justice-act-issues.

Read more here.

NACDL and the Berkeley Center on Law and Technology (BCLT) present "It’s Complicated: Combating the Surveillance State in Criminal Proceedings"

On November 29-30, 2018, NACDL and the BCLT will co-sponsor a FREE CLE at the University of California Berkeley School of Law.

Advanced technologies are revolutionizing how the government investigates, charges, and prosecutes criminal cases. What issues do they raise under federal law and the Fourth Amendment, and how can defense lawyers keep pace? This conference will equip you with the tools to recognize and defend cases involving digital searches, advanced surveillance tools, technologies, and programs.

For more information and registration details, click here.

Watch NACDL’s CLE Webinar "Face-Off: Recognizing and Challenging the Use of Facial Recognition Technology"

On September 18, NACDL held a free webinar about the practices, risks, and limitations of emerging facial recognition technology. With an increasing number of police departments across the country turning to unregulated, untested, and flawed facial recognition technology to identify suspects, it is vital defenders understand the technology, its limitations, and how to challenge its use in their cases. This webinar explored these issues with the Georgetown Law Center of Privacy and Technology’s Clare Garvie, Bronx Defender’s Kaitlyn Jackson, and computer scientist Joshua Kroll. This webinar was supported by Grant No. 2013-MU-BX-K014 awarded by the Bureau of Justice Assistance.

Watch the recording of the webinar here.

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 to 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, 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
Center for HIV Law and Policy Seeking Information on HIV Criminal Cases

The Center for HIV Law and Policy, a national legal resource and strategy center that coordinates a national effort to reform HIV criminal laws, is looking for cases that demonstrate the unfair application and consequences of these laws. They are particularly interested in cases from the following states: Georgia, Idaho, Illinois, Indiana, Kentucky, Montana, Nevada, Ohio, South Carolina, Tennessee, Virginia, Washington, and Wisconsin.

The ideal case would involve a defendant who is living with HIV who is not accused of actually transmitting HIV to a sexual partner.

They would be grateful if attorneys working in any of these thirteen states with clients whose active or recent cases fit within these criteria contact them by emailing Tosh Anderson, Program Manager, at tanderson@hivlawandpolicy.org, or by calling Tosh at 212-430-6733.

Special Election Update
NACDL’s board of directors will conduct a special board election at its fall meeting. For details about the election and about candidacy, please see www.nacdl.org/elections.
Legislative Advocacy

Congress’ Mood Concerning Second Chances: Readily Supported or Under Attack? 

In late August, Rep. Lisa Blunt Rochester (D-DE) and Rep. Rod Blum (R-IA) introduced the Clean Slate Act of 2018 (H.R. 6677), which would seal criminal records for some non-violent offenders. Specifically, the legislation would automatically seal a person’s federal record if they have been convicted of a nonviolent offense, including misdemeanor drug crimes and any federal nonviolent offense involving marijuana, and allow individuals to petition to seal records for other nonviolent offenses.

Also introduced was S. 3435, the Beyond the Box for Higher Education Act, by Sen. Brian Schatz (D-HI). This bill would remove the drug conviction question from the Free Application for Federal Student Aid and would direct the Department of Education to determine whether criminal and juvenile justice questions are necessary in the initial application for college admissions.

Although legislation that would bring relief from collateral consequences has been introduced, there have also been numerous assaults on opportunities for people with a criminal record. As Congress has been working to finalize FY 2019 appropriation bills to fund the government, members have offered amendments that would institute further bans on social safety net programs and restrict employment opportunities. Language in H.R. 2, the “Farm Bill,” would permanently bar people with certain criminal records from receiving access to the Supplemental Nutrition Assistance Program (SNAP). The Senate’s version of the “Farm Bill” does not contain this amendment, clearing the way for a conference committee to reconcile the differences.

Furthermore, the Senate’s FY 2019 Transportation, Housing and Urban Development (THUD) appropriation bill contains language that would prohibit people with felony murder convictions from receiving housing assistance. And language in H.R. 5634, the Medical Cannabis Research Act of 2018, would preclude any personnel with a conviction for a felony or drug-related misdemeanor from being employed by research cultivation operations. These provisions would have a disproportionate impact on communities of color, as African Americans and Latinos are overrepresented in our criminal justice system, particularly for drug crimes.

House Passes Bill to Expand “Crime of Violence” 

In September, the House passed H.R. 6691, legislation that would rewrite the definition of “crime of violence” in the federal code, resulting in nonviolent offenses being labeled as violent offenses, with a vote of 247-152. The new definition would sweep, within its scope, conduct that is inherently nonviolent, labeling violators as “violent” felons and triggering sentencing, immigration, and other negative consequences. The bill now moves to the Senate for consideration.

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 Director of 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 Director of Advocacy, at mreid@nacdl.org.

Federal Action Alerts

Legislation to Decriminalize Marijuana Introduced in the Senate 

In June, Senate Minority Leader Chuck Schumer introduced S. 3174, legislation that would decriminalize marijuana at the federal level by removing it from the Controlled Substances Act. The bill would also provide $20 million annually for state and local programs to expunge or seal the criminal records of people convicted of marijuana possession.

Not only are harsh drug laws a contributing factor to the United States incarcerating 25 percent of the world’s prison population, but these laws have a disproportionate impact on communities of color. African Americans and Latinos comprise nearly 80 percent of the country’s annual marijuana possession arrests, despite similar rates of use and sale with their white counterparts. The Administration has been slowly reinvigorating the failed war on drugs, and Attorney General Sessions has attempted to roll back policies that allowed states to legalize marijuana with little to no federal interference.

Tell your U.S. Senator it’s time to decriminalize marijuana – ask them to co-sponsor! 

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—Warren Wolf (NACDL member, San Antonio, TX)


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In Other News

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