August 2012

August 2012 Cover

What should defense lawyers read collect and prepare before examining a pathologist in a homicide case? What cues are law enforcement officers looking for when determining if a motorcyclist is DWI?


Articles in this Issue

  1. Affiliate News

    At its recent Annual Meeting, the New Mexico Criminal Defense Lawyers Association (NMCDLA) honored Susan Roth with its Driscoll Award for taking Bullcoming before the U.S. Supreme Court last year. The award was presented at the Association’s annual membership meeting before a record-breaking crowd. For more information, please contact NMCDLA Executive Director Cathy Ansheles at 505-992-0050 or email

    Gerald Lippert

  2. Book Reviews: Innocent Spouse: A Memoir

    Leona Helmsley aside, tax cases rarely make the news. In Carol Ross Joynt’s Innocent Spouse, the newsmaker was the tax case.At 22, Joynt worked as Walter Cronkite’s personal writer, went on to write and produce for Charlie Rose, and ultimately for Larry King. The name-dropping is slightly gratuitous but somewhat unavoidable with Joynt’s stature among the who’s who of American journalism.

    Lisa Harris

  3. Book Reviews: Poster Child: The Kemba Smith Story

    On September 1, 1994, Kemba Smith, the girlfriend of a $4 million crack cocaine ring leader, turned herself in to the U.S. District Court in Norfolk, Va. She was convicted of a drug conspiracy and was sentenced to 24½ years in prison, despite the prosecutor admitting that she had “never handled, used or sold any of the drugs involved.” Smith’s subsequent struggle for release gained national attention, culminating in a commutation six years into her sentence from President Bill Clinton in December 2000.

    Jin Niu

  4. Book Reviews: Prosecution Complex: America’s Race to Convict And Its Impact on The Innocent

    Claims of actual innocence and wrongful convictions have become increasingly newsworthy, especially as many of the claims are found to be true. This phenomenon has resulted in a growing force of dedicated defense attorneys and other professionals, and an ever-increasing number of innocence projects, committed to the investigation of wrongful conviction claims. In his book, Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent, Daniel Medwed provides insight into the factors that enable wrongful convictions and offers thoughtful suggestions for changes that might provide relief to innocent defendants.  

    Ken Murray

  5. Book Reviews: The Accusation

    In his first novel, The Accusation, Payne Edwards dares to recognize the dangers of ever-increasing “tough on crime” approaches to dealing with child sex offenders. He is particularly critical of ambiguous laws passed in response to societal fears of predatory criminals, noting that some laws, as worded, actually criminalize innocent behavior — innocent touching — rather than true sexual abuse. Other targets of his criticism include severe mandatory minimum sentences that leave a judge with no sentencing discretion and procedural devices such as video testimony that threaten the constitutional right to confront one’s accusers. Regrettably, his discussion of the latter issues is probably too abbreviated to be understood by many of those unfamiliar with the legal system.

    Fay F. Spence

  6. Confrontation Clause Jurisprudence: The Challenge of Justice Alito’s Williams Plurality and What, If

    Accurately synthesizing a rule from a plurality opinion is a complex undertaking. The authors face the challenge head-on by examining Williams v. Illinois, a case involving the Confrontation Clause. The U.S. Supreme Court in Williams considered whether an expert witness could express the opinion that the defendant’s DNA matched the DNA sample recovered from the victim — when an unaffiliated third-party laboratory created the DNA report generated from the sample. A court may take one of two lessons from Williams: the first possibility is so fact-specific that it is unlikely to reoccur, and the second is that the primary purpose test is alive and well.

    Justin J. McShane, Joshua R. Auriemma and Matthew Koch

  7. Effective Preparation for Examining a Pathologist In a Homicide Case

    Defending a case in which there has been a death necessitates (1) attention to detail and (2) an understanding of the procedures involved. While legendary lawyers have advocated that anyone defending homicide cases should have attended autopsies and become immersed in reading medico-legal literature, the reality is that it is the rare lawyer who does so. John Philipsborn describes what lawyers should read, collect, and prepare under optimal conditions. He includes a basic “first questions” list that lawyers should keep in mind as they begin to collect information.

    John T. Philipsborn

  8. From The President: The Power of Science, the Preservation of the Fourth Amendment, and the Strength

    Criminal defense lawyers should (1) increase their use of science and (2) protect the Fourth Amendment so that it does not become a meaningless ideal.

    Steven D. Benjamin

  9. Lafler and Frye: Constitutionalizing Plea Bargaining

    With the Lafler and Frye decisions, the U.S. Supreme Court has widened the Sixth Amendment beyond its precedents, continuing the Court’s expansive approach to that amendment. When an attorney is ineffective regarding the critical decision to enter a guilty plea or go to trial, the Sixth Amendment is implicated. Donna Lee Elm discusses five scenarios: (1) bad advice on the law concerning sentencing, (2) bad advice on the law regarding trial, (3) failure to communicate plea negotiations, (4) bad advice arising from incompetent investigation, and (5) bad advice from prosecutors and judges.

    Donna Lee Elm

  10. Law Student Essay Competition

    The author discusses four distinctions between being “tough on crime” and being “smart on crime.” 

    Michael Woodruff

  11. My First Look at the Military Commissions Hearing of al-Nashiri: A Somber Wake-Up Call (Military Com

    In July 2012, former NACDL law clerk Ashley Chin Richardson observed the military commissions from Ft. Meade. She shares her experience with readers of The Champion, expressing shock at the blatant imbalance in resources afforded the defense team and pointing out that in the commissions a defendant is not automatically allowed access to all the evidence against him.

    Ashley Chin Richardson

  12. NACDL News: 2012-13 Officers and Newly Elected Board of Directors Members Sworn in at Annual Meeting

    NACDL installed its new Officers and Directors at its Annual Board and Membership Meeting in San Francisco, California, on July 28, 2012.

    Jack King and Ivan J. Dominguez

  13. NACDL News: Annual Meeting Snapshots

    On July 27, 2012, in San Francisco, California attorney, NACDL Life Member and 2012-13 NACDL Parliamentarian Vicki Young (left) was awarded the 32nd annual Robert C. Heeney Memorial Award. The Heeney Award is given to the member who best exemplifies the goals and values of the Association and the legal profession. Young is pictured with NACDL Past President Lisa Wayne.

    Jack King and Ivan J. Dominguez

  14. NACDL News: Calif. Supreme Court: Juvenile’s 110-Year Sentence ‘Cruel and Unusual’

    On Aug. 16, 2012, the California Supreme Court held that sentencing a juvenile to imprisonment – a term of years – with a parole eligibility date that falls past his natural life expectancy violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Following the U.S. Supreme Court’s 2010 decision in Graham v. Florida, which prohibited sentencing juveniles to life without parole for nonhomicide convictions, the California court unanimously agreed that Rodrigo Caballero’s sentence of 110 years to life for three attempted murders with bodily injury deprived him of “a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” The case is People v. Caballero, 282 P.3d 291 (Cal. 2012).

    Jack King and Ivan J. Dominguez

  15. NACDL News: Policymakers Should Consider Legislation’s Full Impact on System, Say Criminal Defense L

    NACDL and the American Council of Chief Defenders (ACCD) Section of the National Legal Aid & Defender Association issued a joint resolution calling on legislators and criminal justice policymakers to prepare “justice system impact statements” for any proposed legislation or policy change that impacts federal, state, or local criminal justice systems. The joint resolution, released on Aug. 20, 2012, proposes that the U.S. Department of Justice, which already distributes substantial funding to local police and prosecutors, fund such studies through its criminal justice grant programs.  

    Jack King and Ivan J. Dominguez

  16. NACDL News: Release With Least-Restrictive Conditions Favored Over Financial Bail

    The NACDL Board of Directors approved the first major bail reform policy proposal in over 25 years at its Annual Meeting in San Francisco on July 28. The policy was proposed by NACDL’s Task Force on Pretrial Justice after a year of study.

    Jack King and Ivan J. Dominguez

  17. NACDL Welcomes an Unprecedented Incoming Corps of Leaders (Inside NACDL)

    In July 2012, NACDL welcomed 14 new members to its board of directors.

    Norman L. Reimer

  18. NHTSA’s Visual Cues For Impairment Of Motorcyclists

    In the National Highway Traffic Safety Administration’s DWI Detection and Standardized Field Sobriety Testing Program, police officers are trained in “DWI Detection Phases.” The phases are vehicle in motion (phase one), personal contact (phase two), and pre-arrest screening (phase three). The authors address phase one and the cues that apply to the vehicle in motion when that vehicle is a motorcycle. They examine how the cues stack up to analyses of real-world riding techniques.

    Ava George Stewart and J. J. Paul, III