July 2015

July 2015 Cover

This month, The Champion helps attorneys identify issues that are essential in mounting a defense when a client is accused of boating while intoxicated.  


Articles in this Issue

  1. Book Review: Fountain Valley 1972

    Michael Joseph, NACDL Life Member in St. Croix, U.S. Virgin Islands, was inseparable as a child from his brothers, Edwin and Rafael. Members of “The Trio” were all born within a two-year period. By 1972, when they were in their early 20s, the brothers were going very separate ways. Michael, the oldest, was finishing college in Los Angeles, first in his family to do so, and choosing between graduate school and a career as a drummer with internationally known jazz, reggae, and African dance professionals. Rafie, the youngest, a dropout who had left the family to live in the rural interior, was drifting into a life of petty crime. Edwin was back from a combat tour in Vietnam, carrying a burden of PTSD that would eventually claim his life along with those of three of his family members. Yet even that tragic episode is not what would shape Michael’s life and become the centerpiece of a highly compelling book.

    Peter Goldberger

  2. Book Review: The Law of the Land: A Grand Tour of Our Constitutional Republic

    With the recent events in Ferguson, Baltimore, and Charleston and the Supreme Court decisions on Obamacare and same-sex marriage, Americans are thinking about their rights and how the U.S. Constitution defines them. It is thus with good timing that the widely read Yale constitutional law professor Akhil Reed Amar has come around again with a new book, The Law of the Land: A Grand Tour of Our Constitutional Republic — an engaging work that focuses on how the Constitution manifests itself in different ways in different parts of the United States.

    Richard J. Blaustein

  3. From the President: NACDL — The Engine for Justice

    NACDL is the engine for criminal justice. Members of this organization are on a never-ending mission to ensure individual and institutional due process, equality, and fundamental fairness.

    Theodore Simon

  4. Inside NACDL: Advancing Criminal Justice Practice and Policy: NACDL Interns and Law Fellows

    NACDL has been fortunate to have students from across the country serve as interns. They enjoy a unique opportunity to learn about cutting-edge issues facing the criminal justice system.

    Ezra Dunkle-Polier

  5. NACDL News: Colorado Criminal Defense Bar Honors Larry Pozner With Olom Award

    On May 15, NACDL Past President Larry Pozner received the Jonathan Olom Award from the Colorado Criminal Defense Bar (CCDB). This award recognizes Pozner for “the remarkable personal sacrifice made without regards to personal gain in the defense of the accused.” Since 1985, this award has been given annually to an extraordinary criminal defense lawyer in recognition of contributions made to the Colorado criminal defense community over the course of his or her career. Pozner served as president of NACDL (1998-1999) and president of the CCDB (1985-86). He is a founding member of Reilly Pozner LLP, a nationally recognized litigation firm in Denver. Pozner complements his trial practice with publishing, television and radio legal commentary, and lecturing on trial practice. He is co-author (with Roger Dodd) of America’s bestselling book on cross-examination, Cross Examination: Science and Techniques.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  6. NACDL News: Criminal Defense Bar Applauds Nebraska Legislature On Repeal of Death Penalty

    The Nebraska Legislature overwhelmingly passed legislation on May 21 to repeal the death penalty in that state in favor of life without parole. While there are 10 people on Nebraska’s death row, no one has been executed since 1997. The vote to repeal was 32 to 15 in Nebraska’s 49-seat unicameral legislature, a veto-proof majority. Nonetheless, both prior to and subsequent to the vote, Nebraska Gov. Pete Ricketts promised to veto the legislation. He made good on that promise on May 26. On May 27, the Nebraska Legislature voted to override Gov. Ricketts’s veto and abolish the death penalty, making Nebraska the 19th state (along with the District of Columbia) to do so.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  7. NACDL News: NACDL Past President Barbara Bergman Receives New Mexico Criminal Defense Bar’s Highest

    University of New Mexico School of Law Professor and NACDL Past President Barbara Bergman was honored on June 5 with the 2015 Charles Driscoll Award, the highest award bestowed by the New Mexico Criminal Defense Lawyers Association (NMCDLA). The award is named for New Mexico legal advocate and human rights activist Charles Driscoll and is given annually to a person who has fought not only for his or her own clients, but also made an important contribution to improve the criminal defense profession in New Mexico.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  8. NACDL News: National Forensic College 2015 Is a Success

    In early June, Cardozo School of Law and NACDL co-sponsored a weeklong conference on science in the courtroom, hosted at Cardozo Law, bringing lawyers from around the country to the second annual National Forensic College (NFC). The NFC is a concept developed by Cardozo professor and former NACDL President Barry Scheck, who designed the program to provide defense attorneys with up-to-date forensic science information. The NFC brings leading scientists, litigators, and scholars together to present the latest developments, strategies, and best practices for forensic tools in criminal cases.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  9. NACDL News: Order May Give Lawyers Better Ability to Limit the Immigration Consequences Of Certain G

    On April 10, U.S. Attorney General Eric Holder signed an order that is good news for immigrants accused of certain crimes and their criminal defense lawyers. Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015).

    Ivan J. Dominguez and Ezra Dunkle-Polier

  10. NACDL News: Parties Reach Settlement in Missouri Class Action Bail Case

    On June 3, 2015, a settlement order was issued in a Missouri case that prohibits the imposition of cash or surety bonds for municipal court offenses in Velda City. The class action lawsuit of Donya Pierce, et al., v. The City of Velda City (Case No. 4:15-cv-570-HEA), filed in the U.S. District Court for the Eastern District of Missouri, arose from the city’s practice of requiring cash or surety bonds in set amounts for municipal violations, without regard to the individual’s circumstances or ability to pay. The order states that the resulting difference in treatment between those who can afford to pay and those who cannot is a violation of the Fourteenth Amendment’s Equal Protection Clause, noting that “[i]f the government generally offers prompt release from custody after arrest upon posting a bond pursuant to a schedule, it cannot deny prompt release from custody to a person because the person is financially incapable of posting such a bond.”

    Diane Price

  11. NACDL News: Roseberry Urges Bar Members to Volunteer for Clemency Project 2014

    The Obama administration is expanding its use of executive clemency to offer relief to individuals serving unduly harsh sentences. Cynthia Roseberry is the project director of Clemency Project 2014, which was formed to ensure that every inmate seeking to qualify for the clemency initiative has access, at no cost, to an attorney. She spoke at a reception in Cincinnati on July 8, and a dozen law firms volunteered to take cases. Lawyers can visit www.clemencyproject2014.org to learn more about the initiative and to volunteer to take a case.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  12. NACDL News: USA Freedom Act Is the Opening Salvo in Larger Bid to Reign in Surveillance State

    After failing to enact legislation prior to the May 31 sunset of various surveillance provisions of the USA Patriot Act, on June 2 the U.S. Senate passed the USA Freedom Act, and the president signed it into law. This marks the first time in three decades that any meaningful restrictions have been placed on the surveillance power of the National Security Agency, in this case as relates to the government’s bulk collection of Americans’ telephone data. Among other provisions, which were opposed by NACDL, the USA Freedom Act extends through 2019 the Patriot Act’s extraordinary “roving wiretaps” and “lone wolf” surveillance programs. The Act increases the maximum sentence to 20 years for violating the vague “material support” statute, a law so broad that it can criminalize pure speech and even ensnare those who for humanitarian reasons interact with a U.S. government-designated terror group for the purposes of aiding civilians within that group’s territorial control.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  13. Preparing a Client for Direct Examination

    Although some criminal defense attorneys believe that a client should not testify under any circumstances, juries really do want to hear defendants say they are not guilty. Starting at the first client interview, the attorney gathers information from the client but also establishes a bond that will be obvious in the courtroom. Too often, the direct examination of a client is ineffective because the questioning style is wooden and the background information is presented in a way that is self-serving. The presentation of a client’s story should be dynamic.  Each answer should provide the impetus to the next question rather than a preordained outline that is not fluid. An effective presentation by a prepared client has the potential to leave jury members transformed and spellbound.

    Keith Belzer

  14. Search & Seizure Commentary

    Because it is the act of impoundment that gives rise to the need for and justification of the inventory search, the threshold inquiry when determining the reasonableness of an inventory search is whether the impoundment of the vehicle was proper at its inception. Many courts have sidestepped the constitutional question of reasonableness and merely asked whether a given vehicle is subject to impoundment under state statute, local ordinance, or a police department’s internal policy.  A conscientious analysis is required in any inventory search in order to reveal its true motive. Often the officer’s own reports and actions (sometimes even shown on the dashcam video) will belie that it was a true inventory; actually the inventory was only an excuse to search for criminal evidence. It varies from court to court: some know that inventory is a pretext for a criminal search and attempt to rein in the police, but others do not.

    Adam T. Johnson

  15. Securing a Favorable Federal Prison Placement

    The process of designating a facility for service of a federal sentence has become more complex and involved. In explaining how the Bureau of Prisons designation process works, Alan Ellis discusses security level scoring, public safety factors, medical factors, and the factors that can trump an individual’s security score.

    Alan Ellis

  16. Web Version: Defending Boating While Intoxicated Cases

    Conducting a sobriety test on a rocking boat is different from conducting a sobriety test on dry land. Numerous boaters who are drinking and boating responsibly are subject to wrongful arrest due to questionable seated sobriety exercises used to determine boater impairment. When handling a “boating while intoxicated” case, defense attorneys should review (1) the two studies that focused on investigating intoxicated boaters in the marine environment and (2) the training manual created for water patrol officers. Doug Murphy and Steven Oberman identify issues that are essential in mounting a legal defense.

    Doug Murphy and Steven Oberman