April 2016

April 2016 Cover

How can the defense team use science to limit the introduction of gruesome evidence during trial?


Articles in this Issue

  1. Affiliate News

    Affiliate News for April 2016 Champion.

    Gerald Lippert

  2. Book Review: Exonerated - A Brief and Dangerous Freedom

    After being wrongfully convicted of murder and serving 29 years in prison, James Woodward was freed in 2008 after DNA testing obtained by the Innocence Project of Texas (IPOT) excluded him as the perpetrator. Woodward was the longest-serving inmate in the United States to be freed by DNA evidence. This is not a story of his legal fight for freedom, but more about surviving freedom. Specifically, this is a love story, written as a memoir by the author, Joyce King, James’ girlfriend for the four years that followed his exoneration. From the beginning, we know he dies. Though Ms. King wants to honor James’ spirit and his fight for normalcy and happiness, the story unfolds into a character study of two opposing worlds and how long-term incarceration destroys people.

    Lisa B. Kauffman

  3. Book Review: Listening to Killers - Lessons Learned From My 20 Years as a Psychological Expert Witne

    What motivates people to kill? James Garbarino set out to answer that very question. In his newest book, Listening to Killers, Garbarino describes what he has learned over the last 20 years as an expert witness interviewing people accused of murder.

    Cara Schaefer Wieneke

  4. Book Review: Showdown - Thurgood Marshall and the Supreme Court Nomination That Changed America

    Shortly after New Year’s Day in 1973, Lyndon Johnson called Thurgood Marshall to say that he was planning to write a book about Marshall’s nomination to the Supreme Court and the bruising confirmation battle that followed. The justice enthusiastically agreed to help with the project. Sadly, their collaboration was not to be. LBJ died on January 22.

    Cheryl D. Stein

  5. Defending a Criminal Tax Case

    While the IRS has a 90 percent conviction rate in criminal tax cases, recent defense victories show that a criminal tax case can be won, negotiated down to a favorable plea, and/or resolved with a lenient sentence. A defense attorney can combat the willfulness theory by arguing that the defendant acted in good faith. Furthermore, reliance on a tax professional is a complete defense in certain circumstances. Creative and thorough defense lawyering can go a long way in the criminal tax arena.

    Justin Gelfand

  6. Fraud on the Courts — No Bones About It! - A Treat for Prosecutors (and Police K-9’s)

    K-9 alerts are unreliable and should not constitute probable cause to conduct a search of a vehicle. Even when police do not find any drugs, the drug-detection dog’s alert results in the dog receiving a treat. When the police claim a drug-detection dog’s alert was valid, defense counsel should seek discovery regarding the dog and its history, the handler, the training program, the field history, and the method used to reward the dog.

    Jeff Weiner and Diego Weiner

  7. From the President: Statutes of Limitations Are an Essential Safeguard to Preserve the Accused’s Abi

    There is a wave of support to either greatly extend or do away with the statutes of limitations applicable to sexual assaults. Most proponents couch their arguments in terms of a struggle for the right of sexual assault survivors to achieve justice.

    E.G. Morris

  8. In Memoriam: Nation’s Criminal Defense Bar Mourns the Passing of Tiffany May Joslyn

    Tiffany May Joslyn, who served as counsel for white collar crime policy at NACDL from 2008 through 2015, died in a tragic car accident on Saturday, March 5, together with her younger brother, Derrick T. Joslyn.


  9. Informal Opinion: Communicating Miranda Rights to Non-native Speakers Of English

    Sometimes native speakers of English do not understand the Miranda rights read to them. The problems are even greater for limited English proficiency (LEP) speakers. The practices that should be followed in communicating rights to LEP speakers are outlined in the Guidelines for Communicating Rights to Non-native Speakers of English.

    Aneta Pavlenko, Diana Eades, and Margaret van Naerssen

  10. Inside NACDL: Federal CJA Panel Attorneys: Speak Now, or...

    A committee, the Ad Hoc Committee to Review the Criminal Justice Act, is reviewing the state of the Act. That committee will make recommendations that may lay the groundwork for the future of federal public defense for the next generation.

    Norman L. Reimer

  11. NACDL News: Ban on Mandatory Juvenile Life Without Parole Strengthened, Made Retroactive

    In a case revisiting its landmark 2012 juvenile justice decision in Miller v. Alabama, on Jan. 25, 2016, the U.S. Supreme Court ruled in Montgomery v. Louisiana that its holding in Miller prohibiting mandatory life without parole for juveniles is a substantive rule of constitutional law and therefore retroactive in cases of state collateral review. Indeed, the Court emphasized its finding in Miller that it is a violation of the Eighth Amendment’s prohibition on “cruel and unusual” punishment to mandatorily impose life without parole sentencing for juveniles. By its ruling, the Court resolves what had become a split in the state courts.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  12. NACDL News: Criminal Defense Bar Applauds Administration’s Efforts to Close Guantánamo, but Says Fra

    On Feb. 23, 2016, the Obama administration released what it says is a “Plan for Closing the Guantánamo Bay Detention Facility.” While that plan contains serious deficiencies, the administration is to be commended for continuing its effort to at long last shutter the detention facility. Of particular note are the provisions that would facilitate the transfer of those detainees who have been cleared and speed up the pace of the review of the remaining candidates for transfer.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  13. NACDL News: Criminal Defense Bar Presents Radley Balko With Champion of Justice Journalism Award

    On Feb. 19, 2016, at its midwinter seminar and meeting in Austin, Texas, NACDL presented Washington Post journalist, investigative reporter, and blogger Radley Balko with its Champion of Justice Journalism Award.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  14. NACDL News: Flawed Microscopic Hair Comparison Analysis Testimony Leads to New Trial for George Perr

    On Jan. 26, 2016, George D. Perrot was granted a new trial in Massachusetts based on newly discovered evidence that the FBI’s microscopic hair comparison testimony contained scientifically invalid statements. The court found that the hair examiner’s testimony was “enormously influential” and material to the convictions. This decision follows a trend in recognizing that evolving science constitutes newly discovered evidence.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  15. NACDL News: NACDL Welcomes Forensics Initiatives Announced by Deputy Attorney General Sally Q. Yates

    Deputy Attorney General Sally Q. Yates delivered important remarks on Feb. 24, 2016, during the 68th Annual Scientific Meeting hosted by the American Academy of Forensic Science in Las Vegas, Nev. In those remarks, there is a clear recognition of the importance of the integrity and reliability of that which is admitted as forensic science in criminal trials in America. Forensic science “brings all of us closer to the truth — whether it’s identifying the perpetrator of a crime or clearing the innocent,” Yates said.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  16. NACDL News: Steve Komie Presents Flag to Gerry Morris

    NACDL Life Member Stephen M. Komie (left) presents the flag that flew over the U.S. Capitol to NACDL?President E.G. “Gerry” Morris on Feb. 20, 2016. The flag flew over the Capitol for NACDL on June 15, 2015, at the request of Sen. Richard J. Durbin, to mark the occasion of the Magna Carta’s 800th anniversary.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  17. NACDL® 2016 Election Procedures

    NACDL® 2016 Election Procedures.


  18. Practice Points: Giving Voice to Digital Evidence In the Jury Room

    During deliberations, why would the defense team want jurors to review its digital exhibit (video) in the privacy of the jury room rather than having the jurors return to the courtroom to review the exhibit in open court? Is the storage medium (computer disk) considered the exhibit, or is the playback device (laptop computer) part of the exhibit too? If the court sends the playback device into the jury room, jurors would have control of playback speed and volume, and they could watch the video as many times as necessary. How does the defense attorney persuade the trial court to exercise its discretion in the defendant’s favor and allow the exhibit and ancillary equipment into the jury room? What precautions should defense counsel take before the equipment is sent to the jury room?

    Lisa J. Steele

  19. Using Science to Challenge Gruesome Evidence

    Research indicates that when jurors are presented with evidence that is particularly gruesome, they are more likely to convict and more likely to be inappropriately punitive. The authors encourage courts to be cognizant of the science on how judgment is affected — if not impaired — by gruesome evidence, and then use that science in a more rigorous application of Rule 403 balancing.

    Jules Epstein and Suzanne Mannes