June 2014
Doug Passon discusses the elements of an effective sentencing documentary - a solid story, connective characters, and emotionally evocative images.
Articles in this Issue
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Book Review: A Wilderness of Error
Jeffrey MacDonald, a physician and Green Beret, did or did not murder his wife and children in their home at Fort Bragg on Feb. 17, 1970. He was sort of charged and then vindicated by the military. He was later charged and convicted in federal court. He is in prison still. He maintains, as he has for 43 years, that he did not do it.
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Book Review: The Legal Profession: What Is Wrong and How to Fix It
What is wrong with the legal profession, according to Sheldon Krantz, a scholar and lawyer with long and diverse experience, is that it has lost “its moral compass” owing to greed and a focus on profit over public service. The results include shrinking opportunities, widespread dissatisfaction among lawyers, an “access to justice” crisis exacerbated by the profession’s stubborn unwillingness to give up its monopoly on provision of legal services, and law schools out of touch with the needs of the profession. Krantz communicates in the broad strokes of a politician, but he conveys a sense of urgency and lays out an inspiring plan to navigate the profession toward its noble calling.
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Book Review: When the War Came Home
Bill Newman is a criminal defense lawyer, newspaper columnist, civil liberties lawyer and radio personality, among other things, in Western Massachusetts, where he has lived for the past 40 years.
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Conflicts and Conspiracy Charges At Guantánamo (Military Commissions Perspective)
In 2008, Ali Hamza Ahmed Suleiman al-Bahlul was convicted at Guantánamo of conspiracy, providing material support for terrorism, and solicitation to commit war crimes. Nearly eight years later, the D.C. Circuit’s consideration of his case has left behind a trail of unanswered legal questions.
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From the President: The Fight to Secure Justice
Jerry J. Cox reflects NACDL's extraordinary accomplishments of the past 12 months.
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Getting Scholarship Into Court Project
The “Getting Scholarship Into Court Project” brings helpful law review articles and other writings to the attention of criminal defense attorneys. The project’s purpose is to identify scholarship that will be especially useful to courts and practitioners. Summarized on this page are articles the project’s advisory board recommends that practicing lawyers take the time to read.
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Interviewing for Noncapital Mitigation
Mitigation involves telling a client's story. That story will include the answer to several questions: What influenced the decisions the client made that led to being convicted of a crime? What strengths does the client have? What will the client need to succeed in the future and avoid ever facing another sentencing hearing? Pity is not a mitigation theme. Telling the court that the client has had "a hard life and a difficult childhood" will not carry the day. The best way to learn the client's story is by building a relationship with the client, and that process begins with skillful interviewing by a mitigation specialist.
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NACDL News: Department of Justice Announces New Policy Concerning the Recording Of Custodial Interro
A new Department of Justice policy, announced May 12, 2014, and effective July 11, 2014, creates a presumption in favor of recording custodial interrogations. For far too long, the nation’s federal law enforcement agencies have been behind the curve in terms of implementing this simple but critical and enormously beneficial practice. As detailed on NACDL’s newly launched, Web-based resource on recording interrogations, hundreds of jurisdictions across the country currently record interrogations as a matter of law or local policy.
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NACDL News: Federal Defender Cynthia W. Roseberry Appointed Project Manager For Clemency Project 201
Attorney Cynthia W. Roseberry was appointed on May 9 as the project manager for Clemency Project 2014. Prior to joining Clemency Project 2014, Roseberry served as executive director of the Federal Defenders of the Middle District of Georgia, Inc.
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NACDL News: NACDL Continues to Deplore Political Attacks on the Criminal Defense Function
While NACDL does not endorse or oppose any candidates for office in any branch of government, NACDL does strongly deplore attacks on any attorney, including candidates representing any political party or ideology, arising out of the attorney’s representation of clients in criminal matters. Most recently, this disgraceful line of attack reared its head in the Arkansas Supreme Court race.
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NACDL News: NACDL Releases Report On Consequences of Arrest and Conviction; Focus Is Roadmap to the
At an event on May 29 at the Open Society Foundations in Washington, D.C., NACDL released a major new report — Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime — A Roadmap to Restore Rights and Status After Arrest or Conviction. The report is a comprehensive exploration of the stigma and policies relegating tens of millions of people in America to second-class status because of an arrest or conviction. In addition, the report lays out 10 recommendations to ensure that the values of life, liberty, and the pursuit of happiness are within reach of all, regardless of past mistakes.
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NACDL News: Seattle Defense Attorney Colette Tvedt Appointed NACDL Indigent Defense Director
On May 8, NACDL announced the appointment of Colette Tvedt as indigent defense training and reform director. Tvedt has devoted her career over the past 25 years to representing poor people accused of crimes. She spent 18 of those years as a public defender and the last seven in private practice with Seattle law firm Schroeter, Goldmark & Bender, where she continued to represent the indigent by court appointment in state and federal court, as well as serving without pay on the board of one of Seattle’s public defender providers.
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NACDL’s Board Tackles Cutting-Edge Criminal Justice Policy Issues (Inside NACDL)
In May 2014, the NACDL Board of Directors adopted a report containing proposals to tackle problems involving obtaining meaningful access to discovery and a report discussing warrants and searches of electronic storage devices.
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New Federal Policy for Recording Custodial Interrogations
In May 2014, U.S. Attorney General Eric Holder announced a new federal policy for recording custodial interrogations. Creating an electronic record will ensure that there exists an objective account of key investigations and interactions with people who are held in federal custody.
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Practice Points
Building a basic understanding of the fundamentals or operating a criminal defense practice begins with learning how to set fees for cases.
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Search & Seizure Commentary: Warshak 4 Years Later
In United States v. Warshak, the Sixth Circuit held that the government's warrantless seizure of an individual's emails, while held in storage by an Internet Service Provider, violated the Fourth Amendment. While the Department of Justice presumably honors the Warshak decision within the Sixth Circuit, its reported use of subpoenas or orders, rather than warrants, in all other jurisdictions raised significant privacy concerns. To date, there is no legislation codifying the Warshak decision, and there has been no change in the DOJ manual. Does the Warshak decision foretell future court rulings? In June 2014 the U.S. Supreme Court, in Riley v. California, determined that warrantless cellphone searches incident to arrest were, absent exigent circumstances, prohibited by the Fourth Amendment. This holding is a hopeful sign that Supreme Court justices are open to protecting the content of emails by requiring a warrant before they are accessed.
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Sentencing: Thinking Like a Judge, Arguing as an Advocate
To assist a judge in reaching a certain sentence, defense counsel must be able to demonstrate, in language and with evidence that resonates with the judge, why the proposed sentence is a just sentence. Lisa Hay examines the steps in developing the facts and theory to support a just sentence. She also addresses some of the mechanics of achieving this just sentence: the allies to enlist, the materials of use, and the individuals who should participate at sentencing.
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Using Moving Pictures To Build the Bridge of Empathy at Sentencing
Defenders must employ the most powerful ways to make judges understand their clients and the mitigating circumstances behind the clients' conduct. One of the most effective ways to meet this challenge is through the use of visual storytelling, specifically, the production of short documentary video presentations about the client. Doug Passon discusses the three essential ingredients of any successful sentencing documentary: a solid story, connective characters, and emotionally evocative images.