June 2017

June 2017 Cover

Learn how to investigate a DWI case inexpensively, fight witness tampering, and conduct an internet investigation.


Articles in this Issue

  1. Affiliate News

    Affiliate News June 2017 Champion.

    Gerald Lippert

  2. Book Review: Divergent Paths - The Academy and the Judiciary

    Book Review: Divergent Paths - The Academy and the Judiciary.

    Leonardo M. Aldridge

  3. Book Review: People Wasn’t Made To Burn - A True Story of Race, Murder, and Justice in Chicago

    Book Review: People Wasn’t Made To Burn - A True Story of Race, Murder, and Justice in Chicago.

    Maureen L. Rowland

  4. Book Review: Sisters in Law - How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Co

    Book Review: Sisters in Law - How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.

    Allen Bentley

  5. Capital Cases

    In United States v. Fell, a district judge in Vermont concluded that the federal death penalty is arbitrary and biased, but only the Supreme Court can rule it unconstitutional.

    Madeline S. Cohen

  6. Fighting Governmental Witness Tampering - (Or, You Can Have Our Defense Witnesses When You Pry Them

    People who work in the criminal justice system know that the notion of a trial unfolding as part of a neutral fact-finding process is a fiction. The reason is that the government has a tremendous amount of power not only to present, but also to influence and alter, the evidentiary picture that ultimately emerges. A potential alibi witness might be told, for example, that the investigation is still open, the prosecution may ultimately bring charges against additional suspects, and continuing to maintain that the defendant was not at the scene of the crime sounds like the kind of thing an accomplice would say. Improper governmental pressure on witnesses violates the U.S. constitution. Defense attorneys Kevin Sali and John Robb point out that a well-established body of case law prohibits the types of influencing tactics often used by government agents in criminal cases.

    Kevin Sali and John Robb

  7. From the President: Heroes

    Older lawyers and younger lawyers may not share the same legal heroes. All lawyers should identify legal heroes and think about how they can benefit from the examples their heroes set.

    Barry J. Pollack

  8. I Know What You Did Last Summer: A User’s Guide for Internet Investigations

    Internet research should be a routine part of any criminal case investigation. Even if an internet search does not produce dramatic new evidence, it makes field investigation more efficient and productive. Conducting an internet investigation does not require expertise in computer forensics. The investigation simply accesses sources of data that include government sites, social media aggregators, social media sites, libraries, and schools. The authors describe the processes and tools that are accessible to any practitioner and can be incorporated into standard investigative practices.

    Sean D. O’Brien and Quinn C. O’Brien

  9. Inside NACDL: Imagining a World Without the Trial Penalty: NACDL’s Next Major Reform Initiative

    NACDL will issue a report on the trial penalty that discusses reforms to address the problem.

    Norman L. Reimer

  10. Investigating a DWI Case on the Cheap

    One of the keys to a successful defense is investigating the facts and circumstances surrounding the case. While some clients have no trouble paying defense counsel’s fee, other clients have limited finances and struggle to pay fees. What does counsel do in a DWI case when the client is not flush with cash and cannot afford an all-out blitz? John Webb offers simple and inexpensive ways to investigate the client’s pre-law enforcement contact, the stop of the client’s car, and the probable cause determination.

    John Webb

  11. NACDL News: Attorney General Sessions Issues Retrograde Charging Policy; Seeks Return to 20th Centur

    On May 12, the Washington Post made public the May 10, 2017, Sessions Memo regarding Department of Justice charging and sentencing policy issued to more than 5,000 assistant U.S. attorneys and all assistant attorneys general. The policy represents a dramatic departure from the previous policy, which called for prosecutors in all cases to “individually evaluate the unique facts and circumstances and select charges and seek sentences that are fair and proportional based upon this individualized assessment.”

    Ivan J. Dominguez, Ezra Dunkle-Polier, and Alexandra Funk

  12. NACDL News: Attorney General Sessions Moves Against the Independence and Integrity of Forensic Scien

    The Washington Post reported on April 10 that Attorney General Jeff Sessions “would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors, and defense lawyers chartered by the Obama administration in 2013.” Attorney General Sessions also “suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisors.”

    Ivan J. Dominguez, Ezra Dunkle-Polier, and Alexandra Funk

  13. NACDL News: Board Member Nellie King Receives Leadership Award

    NACDL Board member Nellie King, featured with keynote speaker, NASA astronaut Mark Kelly, after receiving the Women in Leadership Award, Private Sector, from the Executive Women of the Palm Beaches on May 11, 2017. King received the award for her efforts in recruiting Florida lawyers to assist in drafting petitions for Clemency Project 2014, for her mentorship of women lawyers, and for her leadership in national, state, and local criminal justice organizations.

    Ivan J. Dominguez, Ezra Dunkle-Polier, and Alexandra Funk

  14. NACDL News: Bonnie Hoffman Appointed NACDL Public Defense Director

    On May 30, Bonnie H. Hoffman assumed the position of Director of Public Defense Reform and Training at NACDL. The former Leesburg, Virginia, Deputy Public Defender has been a member of NACDL since 1997. She has served NACDL in numerous capacities, including as Parliamentarian, and as a member of the Executive, Audit, and Budget Committees. She was the 2013 recipient of NACDL’s prestigious Robert C. Heeney Memorial Award, which is given annually to the member who best exemplifies the goals and values of the Association and the legal profession. Hoffman was the first active state public defender to receive the award.

    Ivan J. Dominguez, Ezra Dunkle-Polier, and Alexandra Funk

  15. NACDL News: Collateral Consequences Event Held on Capitol Hill

    On April 25, 2017, NACDL co-sponsored a panel discussion titled “Collateral Consequences of a Criminal Record: Public Safety Benefit or Threat?” with Prison Fellowship on Capitol Hill. Pictured from left to right are the event’s panelists:  Cynthia Roseberry, project manager, Clemency Project 2014; John Malcolm, director of the Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation; Rick Jones, executive director Neighborhood Defender Services and president-elect, NACDL; Tim Heaphy, member, Law Enforcement Leaders to Reduce Crime and Incarceration, and former U.S. attorney, Western District of Virginia; and Adryann Glenn, criminal justice advocate and former administrative assistant, Clemency Project 2014.

    Ivan J. Dominguez, Ezra Dunkle-Polier, and Alexandra Funk

  16. NACDL News: Stakeholders, Experts Propose Court Reforms to Improve Quality of Justice

    On April 6, the Monroe H. Freedman Institute at Hofstra University’s Maurice A. Deane School of Law hosted a conference called “Judicial Responsibility for Justice in Criminal Courts.” The conference brought together judges, prosecutors, defense attorneys, scholars, and criminal justice policy experts for a day of interactive panels on procedural justice, bail, implicit bias, deficiencies in the right to counsel, sentencing, and changing court culture. The goals of the program were to identify barriers to justice in overburdened and underfunded state and local criminal justice systems and to explore practical reforms to improve the quality of justice delivered by judges in those courts. The program had a particular focus on high-volume misdemeanor courts, where concerns for speedy disposition too often lead to curtailing of due process rights for the accused, and defendants may appear at critical stages of the case without the benefit of counsel.

    Diane DePietropaolo Price

  17. NACDL® 2017 Election Procedures

    NACDL® 2017 Election Procedures June 2017 Champion.


  18. Practice Points: The General Credibility Instruction: We Can Do Better

    In some cases, a jury’s decision that the prosecution’s witnesses are liars or just wrong may be the only defense that counsel can offer. This means that the credibility instruction is important. Do lawyers treat it as important? Lawyers rarely make requests to charge that ask for an alternative to the pattern or model credibility instruction. That is a problem because the credibility instruction could be better, says appellate attorney Lisa J. Steele. It could take into account psychological research into detecting deception, which might lead the jury to a more accurate verdict. Moreover, some judges may adopt different language if they are asked to think critically about a pattern instruction. Steele discusses six myths about credibility decisions in the courtroom and offers a suggestion for a better instruction.

    Lisa J. Steele

  19. Search & Seizure Commentary

    Knowledgeable attorneys can minimize the impact of a search warrant by ensuring that a client or a company is prepared for the disruption and agitation that the execution of a warrant causes.

    Marc S. Raspanti and Douglas E. Roberts