March 2015

March 2015 Cover

This issue of The Champion offers suggestions to help combat improper juror rehabilitation during voir dire.


Articles in this Issue

  1. Book Review: Caught: The Prison State and the Lockdown of American Politics

    Caught: The Prison State and the Lockdown of American Politics is an important contribution to the discussion of mass incarceration, and it will likely be a controversial one. Written by Marie Gottschalk, a political science professor at the University of Pennsylvania, Caught is a scholarly work. It is by no means an easy read, not because of any deficiencies on Gottschalk’s part (indeed, she is a clear and colorful writer), but rather because Caught is laden with facts. Accompanying the 284 pages of text are 125 pages of endnotes and a selected bibliography of 27 pages. Any one of Caught’s 12 chapters is worthy of an essay or could be the subject of a conference.

    Elizabeth Kelley

  2. Book Review: Making Manna

    Making Manna is fiction, but it tells a real story. Criminal defense attorneys will recognize large parts of it from experience. And no surprise: author Eric Lotke knows the territory. Twenty years ago as principal writer, he integrated research, data and the varied opinions of a panel of criminal justice experts to produce The Real War on Crime: The Report of the National Criminal Justice Commission, a comprehensive analysis of American crime policy and incarceration.

    Malcolm C. Young

  3. Book Review: The Birth of American Law: An Italian Philosopher and The American Revolution

    John Bessler is one of America’s leading academic critics of capital punishment. (He also is this reviewer’s colleague at the University of Baltimore School of Law.) In an impressive series of books and articles, Bessler has systematically undermined the popular but too-simplistic notion that the death penalty is consistent with American tradition and with the original understanding of the Founders. The Birth of American Law is Bessler’s latest variation on this theme.

    Christopher J. Peters

  4. Breaking the Spell Of the Magic Question During Voir Dire

    Most defense attorneys who have picked a jury have encountered a judge’s improper rehabili-tation of a biased juror during voir dire. When partiality be-comes apparent, some judges try to salvage the situation and protect the record by asking questions designed to demonstrate the juror’s willingness to obey the law and reach a verdict based on only the application of that law to the facts of the case. Patrick Barone and Michael Skinner offer suggestions to practitioners to help combat the practice of improper juror rehabilitation during voir dire.

    Patrick T. Barone and Michael B. Skinner

  5. Challenging State Wiretaps: Who Asked for The Order? The Answer May Support Suppression

    The federal Wiretap Act governs all wiretaps, including those used by state or local officials pursuant to state court authorizations. Notwithstanding apparently unambiguous requirements, many states have enacted wiretap statutes that appear to be inconsistent with the federal law. Perhaps the most common discrepancies are those regarding the categories of government attorneys who may apply for, or authorize applications for, wiretap orders. The federal statute narrowly defines the group of attorneys who may do so, but many state statutes purport to create a broader group of permissible applicants, and state officials frequently rely on these more permissive state statutes. What is the result? A significant number of wiretap orders issued by state courts may be vulnerable to attack.

    Kevin Sali

  6. Digital Searches After Riley v. California

    In Riley v. California, the U.S. Supreme Court ruled police cannot search a cellphone’s data without a warrant under the Fourth Amendment’s search incident to arrest exception. The Court recognized that “digital” is different. Riley builds upon the decision in United States v. Jones, which found the warrantless installation of a GPS device on a car constituted a “search.” Defense attorneys can use Riley and Jones to (1) mount constitutional challenges to public surveillance via video cameras or drones; (2) demand particularity in the execution of digital searches and seizures; and (3) argue for limits to electronic searches at the border.

    Hanni M. Fakhoury

  7. From the President: Edward Greenspan, Q.C.

    Edward Greenspan was a great criminal defense lawyer, a prolific writer, and a compassionate advocate for fundamental rights.

    Theodore Simon

  8. Inside NACDL: Changing the Rules of the House: A Tangible Step to Stem Tide of Overcriminalization

    On Jan. 6, 2015, the House of Representatives adopted a rule that requires the House Judiciary Committee to be afforded an opportunity to review any bill containing new criminalization.

    Norman L. Reimer

  9. NACDL News: Clemency Project 2014TM Commends President Obama for Granting Eight Commutations

    President Barack Obama commuted the sentences of eight federal prisoners and pardoned 12 others on Dec. 17, 2014. These mark the first commutations the president has granted since the U.S. Department of Justice announced its clemency initiative in April 2014.

    Ivan Dominguez and Isaac Kramer

  10. NACDL News: DOJ Persuades Court to Keep Criminal Discovery Blue Book From Being Disclosed; NACDL to

    Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia issued a decision on Dec. 18, 2014, in National Association of Criminal Defense Lawyers v. Executive Office for United States Attorneys et al. The court upheld the U.S. Department of Justice’s (DOJ) denial of NACDL’s Freedom of Information Act request that DOJ release to the public its Federal Criminal Discovery Blue Book, finding that the Blue Book is attorney work product that was prepared to protect DOJ from litigation and therefore it is protected from disclosure. NACDL plans to appeal this decision granting defendants’ motion for summary judgment and denying plaintiff’s cross-motion for summary judgment.

    Ivan Dominguez and Isaac Kramer

  11. NACDL News: NACDL Amicus Brief: Congress Violated the Equal Protection Clause and Exacerbated Racial

    In an amicus curiae brief filed on Dec. 18, 2014, in Davis v. United States Sentencing Commission, an appeal of a dismissal of a petition for writ of mandamus now pending in the U.S. Court of Appeals for the D.C. Circuit, NACDL forcefully and methodically demonstrates that Congress’s 1995 reaffirmation of the 100:1 federal sentencing ratio for powder to crack cocaine violated the Equal Protection Clause of the U.S. Constitution.

    Ivan Dominguez and Isaac Kramer

  12. NACDL News: NACDL Applauds Adoption of House Rule Providing for Judiciary Committee Review of All Cr

    On Jan. 6, the U.S. House of Representatives adopted a rules change that will afford the House Judiciary Committee the opportunity to exercise its jurisdiction over any bill that proposes or modifies a new or existing criminal law or penalty.

    Ivan Dominguez and Isaac Kramer

  13. NACDL News: NACDL Sponsors Supreme Court Group Admissions Ceremony

    NACDL members traveled to Washington, D.C., to be sworn in to the Bar of the Supreme Court of the United States.

    Ivan Dominguez and Isaac Kramer

  14. Selected Competence-Related Rulings: Useful Lessons in Approaches To the Analysis of Competence to S

    When researching the issue of competence to stand trial, attorneys will find only a few rulings containing enough detail to (1) supply useful information about judges’ views of the strengths and limitations of particular competence evidence or (2) point to what courts deem highly significant in arriving at a competence ruling. This fact is best illustrated by the U.S. Supreme Court’s one-page decision in Dusky v. United States, which sets forth definitions without other detail. A few rulings do set out some competence “red flags” and offer cautionary tales about the strengths and weaknesses of competence-related evidence. John Philipsborn shines a light on some of these helpful rulings.

    John T. Philipsborn