August 2016

August 2016 Cover

How can counsel use pretrial motions to gather information to support the defense in a child sex abuse case? (Cover Photo: Barry J. Pollack - NACDL's 58th President | Taken by John Marshall Memorial Park, Washington, D.C., by Volodymyr Bukalo of Dupont Photographers, ©NACDL 2016.)


Articles in this Issue

  1. A Beginner’s Guide to Surveillance, Digital Security, and the Privilege

    Lawyers cannot neglect their duty to protect the attorney-client privilege merely because their professional communications are immersed in a multiplex of digital surveillance technologies. It is essential for defense counsel to protect communications, documents, and Internet usage from bulk surveillance and targeted attacks. How can one communicate securely via text messages and instant messaging apps? Is email automatically encrypted? What, if anything, does it mean when a software company describes its product as “military grade”? First steps for counsel include using strong passwords and encrypting files that are on counsel’s computer and smartphone. To maintain the security of attorney-client communications and defense work product, criminal defense lawyers must keep alert for news of evolving surveillance threats and new privacy countermeasures. The only constant is constant change.

    Sam Guiberson and Jeremy Gillula

  2. Affiliate News

    Affiliate News for August 2016 Champion.

    Gerald Lippert

  3. Book Review: Mental Disability, Violence, and Future Dangerousness - Myths Behind the Presumption of

    Over 50 years ago, President John F. Kennedy signed the law closing most of this country’s facilities that warehoused people with mental disabilities. Sadly, his and others’ dream that this population would live independently, supported by community-based treatment, has not come to pass. Instead, deinstitutionalization has become transinstitutionalization — that is, people who otherwise would have been institutionalized are now in America’s jails and prisons. Estimates vary, but anywhere between 40 and 60 percent of inmates have some sort of mental illness or intellectual/developmental disability, and the number is higher for juvenile facilities. Penal institutions have become de facto mental institutions, and corrections officers are often the first to admit that this is costly and dangerous.

    Elizabeth Kelley

  4. Colorado Enacts Custodial Recording Statute

    The governor of Colorado signed a bill in June 2016 that requires police to make audio-visual recordings of the entirety of custodial interrogations conducted in permanent detention facilities when people are suspected of committing certain offenses.

    Thomas P. Sullivan

  5. From the President: Injustice on Our Streets

    Criminal defense lawyers must be at the forefront of the fight to create a program for criminal justice that, at every stage, dispenses justice to our most powerless citizens.

    Barry J. Pollack

  6. Inside NACDL: NACDL Welcomes Top-Notch Interns and Law Fellows

    Every year, NACDL is fortunate to have top-notch students from all over the country serve as summer interns and Law Fellows.

    Katherine Holden

  7. Leadership: New Leaders Bring Wealth of Talent to NACDL

    NACDL’s new officers and directors have exceptional backgrounds and experience, and they will shape the future of criminal defense for years to come.

    Katherine Holden and Ezra Dunkle-Polier

  8. Litigating Challenges to the Amended Definition of ‘Crime of Violence’ in § 4B1.2(a)

    Effective Aug. 1, 2016, the Sentencing Commission deleted the residual clause from U.S.S.G. § 4B1.2(a)(2) and made other changes to the definition of “crime of violence.” The Commission said that its amendments would make the guideline consistent with Johnson v. United States (2015). The amendments will be beneficial for some defendants and detrimental to others. This article discusses when and how to use, challenge, or avoid the new definition of “crime of violence” in sentencings and resentencings. The authors discuss when to insist on using the pre-amendment version of the guideline as altered by Johnson and, alternatively, how to challenge the amended version to a client’s advantage.

    Amy Baron-Evans, Jennifer Niles Coffin, and Lex Coleman

  9. Motion Practice in a Child Sex Case

    Motion practice plays a critical role in establishing the parameters of the defense and prosecution cases when child sex abuse has been alleged. Defense attorneys must consider how they can use motions to gather information, provide critical testimony to the jury, and prevent the prosecution from using inadmissible or improper evidence to taint the fairness of the trial. Demands for exculpatory evidence should be specific and grounded in the facts.

    Kathleen Stilling and Jerome Buting

  10. NACDL News: 2016-17 Officers and Newly Elected Board of Directors Members

    NACDL installed newly elected officers and directors at its Annual Board and Membership Meeting in Palm Beach, Fla., on Aug. 13, 2016.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  11. NACDL News: Alexander Bunin Receives Champion of Public Defense Award

    Harris County, Texas, Chief Public Defender Alexander Bunin was presented with the Champion of Public Defense Award by NACDL at its 59th Annual Meeting in Palm Beach, Fla., on August 11.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  12. NACDL News: Barry J. Pollack Sworn in as 2016-17 NACDL President

    Barry J. Pollack of Washington, D.C., was sworn in as president of NACDL by U.S. District Judge Amit P. Mehta at the Association’s 59th Annual Meeting in Palm Beach, Fla., on Aug. 13.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  13. NACDL News: DOJ Persuades DC Circuit to Keep Federal Criminal Discovery Blue Book From Being Disclos

    On July 19, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit — Circuit Judge Srinivasan and Senior Circuit Judges Sentelle and Edwards — issued its decision in National Association of Criminal Defense Lawyers v. U.S. Department of Justice Executive Office for United States Attorneys and U.S. Department of Justice. The decision upheld the lower court’s and the U.S. Department of Justice’s (DOJ) denial of NACDL’s Freedom of Information Act request that DOJ release to the public its Federal Criminal Discovery Blue Book, finding that the Blue Book is attorney work product that was prepared to protect DOJ from litigation and therefore it is protected from disclosure.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  14. NACDL News: New York City Attorney Rick Jones Receives Prestigious 2016 Heeney Award from Nation’s C

    New York City attorney Rick Jones is the 2016 recipient of NACDL’sRobert C. Heeney Memorial Award

    Ivan J. Dominguez and Ezra Dunkle-Polier

  15. NACDL News: President Obama Announces Single Largest Set of Clemency Grants Since Taking Office

    On August 3, in his fourth set of clemency grants since March 30, President Barack Obama commuted the sentences of 214 prisoners, 118 of whom were applicants whose petitions were supported by Clemency Project 2014. This is more than double the number of commutations granted on any single day thus far during President Obama’s tenure. Indeed, these grants bring the total number of commutations granted by President Obama since taking office to 562, more than any president since Calvin Coolidge.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  16. NACDL News: SC State Senator Gerald Malloy Receives Champion of State Criminal Justice Reform Award

    Gerald Malloy, a private attorney and state senator from South Carolina, was honored on August 12 with NACDL’s Champion of State Criminal Justice Reform Award at NACDL’s 15th Annual State Criminal Justice Network conference in Palm Beach, Fla.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  17. NACDL News: UACDL Executive Director Kent R. Hart Dies in Tragic Fall

    Utah Association of Criminal Defense Lawyers (UACDL) Executive Director and Past President Kent R. Hart slipped and fell into a waterfall while hiking in Hallingdal, Norway, on July 24.

    Ivan J. Dominguez and Ezra Dunkle-Polier