August 2017
How can a polygraph examination, which is used and trusted by prosecutors, benefit the defense?
Articles in this Issue
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Affiliate News
Affiliate News August 2017 Champion.
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Appellate Advocacy: From Cover to Content: Ten 21st Century Tips for Effective Appellate Briefing
Whether a lawyer has been writing appellate briefs for five years or five decades, a tune-up cannot hurt. Daniel Monnat and Paige Nichols offer 10 rules in hopes of inspiring appellate practitioners to revisit what they already know and breathe new life into their appellate briefs. Monnat and Nichols recommend that lawyers set a briefing time to avoid a last-minute panicked race against the appellate clock. Counsel should set separate deadlines for reviewing the record, researching and outlining the arguments, drafting the brief, and editing. If the writing is bad, judges will not have confidence in the substance of the brief. Moreover, the authors point out that if the lawyer’s tight, compelling brief does not comply with the appellate court’s rules, it is not going to get in the door.
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Blood Drug Testing: What Defense Attorneys Must Learn
DUI-Drug cases are increasing. Cases include people accused of driving while under the influence of illicit drugs and driving while taking prescription medication. Andrew Mishlove discusses three areas of attack when a case involves chemical analysis: (1) a sample integrity defense focusing on the creation and handling of the sample; (2) a metrology defense examining the method or parameters used by the laboratory; and (3) an instrumental defense pinpointing software or hardware failure.
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Effective Defense Polygraphs
The polygraph examination, which is used and trusted by prosecutors, can benefit the defense team. Polygraphs can, among other things, corroborate a defendant’s testimony or help solidify the defense argument on a sentencing issue. Defense attorney Christophir Kerr provides practice tips by highlighting recent cases in which defense polygraphs helped save defendants from prison and millions of dollars in criminal forfeiture. The cases demonstrate the importance of working with a credible examiner, carefully crafting test questions, and consulting with a qualified scientist for evidentiary hearings.
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From the President: Confronting Systemic Racism in the Criminal Justice System: We All Have a Duty
to Act
Communities of color face increased scrutiny from law enforcement in a climate that (falsely) presumes that they are more likely than whites to commit crimes.
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Inside NACDL: Racism in the U.S. Criminal Justice System: An Uncomfortable Truth for All of Us
Criminal defense lawyers should demonstrate disparate impact and confront racism at every stage of the criminal justice process.
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NACDL News: Attorney Jerome F. Buting Receives Champion of Justice Award
Wisconsin attorney Jerome “Jerry” F. Buting was honored July 28 with the Champion of Justice Legal Award from NACDL. He received the award at the Foundation for Criminal Justice Awards Gala Dinner at the Fairmont Hotel in San Francisco, California. Champion of Justice Awards are bestowed upon individuals who have staunchly preserved or defended the constitutional rights of American citizens and have fought to ensure justice and due process for persons accused of crime.
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NACDL News: Fourth Circuit Permits Mass Surveillance Lawsuit to Move Forward, but Without the Crimin
In March 2015, Wikimedia, NACDL, Human Rights Watch, and several other organizations filed suit in the U.S. District Court for the District of Maryland challenging the National Security Agency’s (NSA) mass interception and searching of Americans’ international internet communications. The case is captioned Wikimedia, et al. v. NSA. On Oct. 23, 2015, the district court granted a motion by the government to dismiss the case, holding that the group of plaintiffs had not made plausible allegations that their communications were, in fact, being monitored by the NSA. On May 23, 2017, the U.S. Court of Appeals for the Fourth Circuit reversed the district court’s dismissal, but only as to one plaintiff in the case, Wikimedia itself.
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NACDL News: Groups Expand Restoration of Rights Project
On June 28, 2017, the Collateral Consequences Resource Center and its partner organizations, NACDL, the National Legal Aid & Defender Association, and the National HIRE Network, announced the launch of the newly expanded and fully updated Restoration of Rights Project.
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NACDL News: Massachusetts Public Defense Leader Anthony J. Benedetti Receives NACDL’s Champion of St
Anthony J. Benedetti, chief counsel for the Committee for Public Counsel Services (CPCS) in Massachusetts, was honored on July 28, 2017, with NACDL’s Champion of State Criminal Justice Reform Award at the Association’s 16th Annual State Criminal Justice Network (SCJN) conference in San Francisco, California. The award recognizes an individual or group whose tremendous efforts have led to progressive reform of a state criminal justice system.
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NACDL News: NACDL and FAMM Announce State Clemency Project; Collaborative Efforts Underway with the
National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums Announce NACDL/FAMM State Clemency Project.
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NACDL News: NACDL Applauds Introduction of Bipartisan ‘Pretrial Integrity and Safety Act of 2017’
On July 20, 2017, Senators Kamala Harris (D-CA) and Rand Paul (R-KY) jointly introduced the “Pretrial Integrity and Safety Act of 2017.” This legislation would help bring about more just pretrial release determinations and represents a clear recognition of the vital role of counsel at the pretrial stage. If enacted, it would authorize a $10 million grant to provide states with an incentive to end the practice of money bail. Principles for obtaining grants under the bill include replacing money bail with individualized, pretrial guidelines that favor release as well as appointment of counsel at the earliest possible stage of pretrial detention, approaches strongly supported by NACDL. The bill would also encourage states to institute a system of data collection and reporting that includes steps to ensure that risk assessment tools do not result in racial, ethnic, gender, or class disparities.
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NACDL News: NACDL Is an Originating Endorser of the Consensus Statement on HIV ‘Treatment as Prevent
NACDL Director of Public Affairs & Communications Ivan Dominguez and NACDL Board Member Jo Ann Palchak, who heads a newly formed NACDL Committee — The Committee on HIV/AIDS Criminalization — worked with attorneys at the Center for HIV Law & Policy (CHLP) and others on a CHLP initiative, A Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform. The statement was released on July 13, 2017, with originating endorsers including the CHLP, NACDL, Treatment Action Group (TAG), the National LGBTQ Task Force, and the National Center for Transgender Equality.
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NACDL News: NACDL Welcomes Introduction of Bipartisan ECPA Modernization Act of 2017
NACDL welcomes the introduction of the bipartisan “ECPA Modernization Act of 2017,” co-sponsored by Senators Mike Lee (R-UT) and Patrick Leahy (D-VT) and introduced on July 27, 2017. The time has long past for Congress to update the 1986 Electronic Communications Privacy Act (ECPA) that governs how law enforcement can access digital communications. Written before smartphones, e-mails, or electronic communications were fixtures of everyday life, ECPA has long needed to be brought into the 21st century.
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NACDL News: Nation’s Criminal Defense Bar Disappointed in Announcement of Regressive DOJ Policy on A
NACDL was disappointed in the July 19, 2017, announcement by the Department of Justice that it is returning to ill-advised forfeiture policies that it had recently abandoned after much public scrutiny. Attorney General Jeff Sessions announced an expansion of law enforcement’s ability to seize money and property from people and businesses who are suspected of criminal wrongdoing, but who have not been convicted or even charged with a crime.
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NACDL News: Philadelphia Attorney George Henry Newman Receives 2017 Heeney Award from NACDL
Philadelphia, Pennsylvania, attorney George Henry Newman has been chosen as the 2017 recipient of NACDL’s Robert C. Heeney Memorial Award. He received the award at the Association’s annual membership meeting on July 29 in San Francisco, California. This prestigious honor is presented annually to the NACDL member who best demonstrates the goals and values of the Association and of the legal profession.
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NACDL News: Rick Jones Sworn in as 2017-18 NACDL President
New York City attorney Rick Jones was sworn in as president of NACDL at the Association’s Annual Meeting in San Francisco, California, on July 29. The oath of office was administered by the Honorable Rowan D. Wilson, associate judge of the New York Court of Appeals, the highest court of the state of New York. Jones has served two terms on NACDL’s Board of Directors and one year as Parliamentarian. He previously served as NACDL’s President-Elect, First Vice President, Second Vice President, and Secretary.
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NACDL News: Vanita Gupta Receives Foundation Justice Award at FCJ Gala Dinner
Civil rights pioneer Vanita Gupta was recently honored with the Foundation Justice Award from the Foundation for Criminal Justice (FCJ). The FCJ preserves and promotes the core values of NACDL and the American criminal justice system. Ms. Gupta received the award at the FCJ Awards Gala Dinner at the Fairmont Hotel in San Francisco, California, on July 28. The theme of the evening was “For the Public Good: Pro Bono and Liberty’s Last Champions.”
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Search & Seizure Commentary: Moving to Suppress After Utah v. Strieff
The U.S. Supreme Court’s 2016 decision in Utah v. Strieff curtailed Fourth Amendment protections. The government conceded the initial stop of Edward Strieff was unlawful, but nonetheless said the arrest, search, and seizure were lawful pursuant to the attenuation doctrine (i.e., unlawfully seized evidence can be admitted when the connection between unlawful police conduct and obtaining evidence is either remote in time or has been interrupted by an intervening circumstance). Defense attorneys Bridget Krause and Deja Vishny recommend that defense attorneys focus their litigation strategy on the third prong of the attenuation analysis — showing that the police officer’s conduct was purposeful and flagrant. The authors offer several scenarios in which — notwithstanding Strieff — the defense might prevail in a motion to suppress evidence.
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The Foundation Justice Award Recipient - Vanita Gupta - Keynote Address: July 28, 2017
The Foundation Justice Award Recipient - Vanita Gupta - Keynote Address: July 28, 2017
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Verbatim: The Honorable Rowan D. Wilson
The United States is incarcerating people at a rate unmatched by any other country, and no decent society would imprison people merely because they are destitute, mentally ill, or addicted.