July 2016

July 2016 Cover

What safeguards should the defense seek when the government searches digital devices pursuant to a warrant? (Cover Photo: Brigadier General John G. Baker, USMC | Taken by Zach Schermerhorn ©NACDL 2016)


Articles in this Issue

  1. ‘A Little Communication Would Have Been Nice, Since This Is My Life:

    Defendant Views on the Attorney-Client Relationship

    How can defenders form strong relationships with their clients? Even when a defense attorney is doing a superb job and thoughtfully implementing the legal strategy, can anything negatively impact the client’s perception of the attorney-client relationship? Researchers explored these questions in a study of public defense services for people with mental health disorders.

    Chelsea Davis, Ayesha Delany-Brumsey, and Jim Parsons

  2. Affiliate News

    Affiliate News for July 2016 Champion.

    Gerald Lippert

  3. Book Review: Beyond Freedom's Reach - A Kidnapping in the Twilight of Slavery

    Lincoln freed the slaves, right? Not exactly. The Emancipation Proclamation, effective Jan. 1, 1863, only applied to those states that took up arms against the Union. It did not apply to slaveholding states that remained loyal to the Union. And, it was an Executive Order, not an Act of Congress. Lincoln issued it while the war still raged, so he dedicated Federal troops to the enforcement of the Proclamation. The Emancipation Proclamation did apply to Louisiana. This is where the story begins.

    Maureen L. Rowland

  4. Book Review: Project Fatherhood - A Story of Courage and Healing in One of America’s Toughest Commun

    Living in a small, conservative, mid-western town most of my adult life, the story of Project Fatherhood grabbed my attention. It is a story about a group of fathers in Watts, a small community in the eastern corner of South Los Angeles, who want to improve not only their lives, but lives of the community.

    Bob Lindemeier

  5. Cybercrime and the Fourth Amendment

    The constitutional protections afforded by the Fourth Amendment related to cybercrimes are no different than Fourth Amendment litigation involving a car, a house or any other private possession, but the application of these protections is evolving because of the nature of digital storage devices. People have become dependent on gadgets, and each gadget is an item protected by the Fourth Amendment. Practitioners should seek protections to ensure that the government does not use a search of a digital device as a fishing expedition to find evidence about unknown crimes. The government should not be able to rely on the good faith exception to justify an over-expansive and intrusive search. Marcia Shein outlines the considerations a defense attorney should keep in mind when involved in Fourth Amendment litigation having to do with digital evidence.

    Marcia G. Shein

  6. Defending the Rule of Law: The Military Commissions Defense Organization

    The prosecutions unfolding at Guantanamo are among the most important criminal cases in U.S. history. Unfortunately, the proceedings have not lived up to the highest standards of American justice due to repeated delays, deliberate government interference with the defense function, and a shortage of defense resources. The Chief Defense Counsel for Military Commissions offers his opinion regarding how the military commissions have fared to date.

    Brigadier General John G. Baker, USMC

  7. DWI - Blood or Breath in Birchfield: The Supreme Court Draws a Critical Distinction

    In Birchfield v. North Dakota, the Supreme Court held that the Fourth Amendment permits warrantless breath tests incident to arrest for drunk driving, but a warrant must be obtained before obtaining a sample of blood.

    Steven Oberman


    ERRATUM. July 2016 Champion.


  9. Inside NACDL: More Than a Few Good Men and Women: America’s Heroes at Guantanamo Bay

    The women and men who have served as defense counsel for the detainees at Guantanamo Bay are heroes and champions of liberty.

    Norman L. Reimer

  10. NACDL News: NACDL Condemns HIV Criminalization

    On May 21, 2016, at NACDL’s Spring Meeting, the board of directors unanimously adopted a resolution opposing all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual.

    Ezra Dunkle-Polier, Katherine Holden, and Ivan J. Dominguez

  11. NACDL News: NACDL Hosts Leaders of Public Defender Community

    As part of the 2016 Executive Retreat, NACDL President-Elect Barry J. Pollack invited leaders of the public defense community and NACDL’s Public Defense Committee, as well as staff, to a day-long conversation about the needs and concerns of the public defense community.

    Ezra Dunkle-Polier, Katherine Holden, and Ivan J. Dominguez

  12. NACDL News: NACDL Releases Symposium Report on The Fourth Amendment In the Digital Age

    On June 8, 2016, NACDL re-leased its symposium report on “The Fourth Amendment in the Digital Age.”

    Ezra Dunkle-Polier, Katherine Holden, and Ivan J. Dominguez

  13. NACDL News: President Obama Announces Third Set of Clemency Grants in Two Months

    In his third set of clemency grants in just over two months, on June 3, 2016, President Barack Obama commuted the sentences of 42 prisoners, 25 of whom were applicants whose petitions were supported by Clemency Project 2014. Of the 25 petitions that came through the Project, 14 of the prisoners were serving life sentences.

    Ezra Dunkle-Polier, Katherine Holden, and Ivan J. Dominguez

  14. NACDL News: Supreme Court Rejects Expansive Interpretation of ‘Official Act’; Vacates and Remands Fo

    In an opinion by Chief Justice Roberts, on June 27, 2016, the U.S. Supreme Court unanimously rejected the government’s expansive interpretation of what constitutes an impermissible “official act” under the federal bribery statute, the Hobbs Act, and the federal honest services statute.

    Ezra Dunkle-Polier, Katherine Holden, and Ivan J. Dominguez

  15. NACDL News: TCDLA Hall of Fame Inducts NACDL Past President Edward A. Mallett

    The Texas Criminal Defense Lawyers Association (TCDLA) inducted Edward A. Mallett into its Hall of Fame on June 17, 2016.

    Ezra Dunkle-Polier, Katherine Holden, and Ivan J. Dominguez

  16. Practice Points: Themes and Theme-Related Defenses in Sexual Assault Cases

    Lawyers employ themes at trial because themes are memorable and can be used as teaching tools. Some lawyers believe jurors are more inclined to assume guilt in a sexual assault case. Even if this belief is true, it does not change the strategies of persuasion the defense will use when trying a sexual assault case. Themes stick. A probable reality in these cases is that jurors want to know how a false accusation could have been made. Keith Belzer offers themes and theme-related defenses for cases involving sexual assault allegations. One advantage of brainstorming themes is that it forces the defense team to try to figure out what happened. The development of a theme helps to answer the following question: Why are we here if an assault did not occur?

    Keith Belzer

  17. Verbatim: Why We Are Defenders

    Why are we defenders? We are defenders because we believe that whether a person is rich, poor or middle class, that person deserves a fair chance in court.

    James Castle