March 2017

March 2017 Cover

How can defense counsel properly prepare a defendant for a psychosexual evaluation?


Articles in this Issue

  1. Affiliate News

    Affiliate News, March 2017 Champion.

    Gerald Lippert

  2. Book Review: Something Is Rotten in Fettig

    Book Review: Jere Krakoff was not born to write this book. Rather, he lived his professional life to write this book. Krakoff worked as a civil rights lawyer for 40 years, primarily representing clients who had no other voice and whose lives were beyond difficult. Krakoff spent much of his career working for organizations like the ACLU, National Prison Project, and Lawyers Committee for Civil Rights Under Law. In those jobs, he principally litigated cases on behalf of prisoners challenging conditions that were so dreadful that they could be deemed unconstitutional. These are serious issues, but Krakoff surprises us with a hilarious, deeply satirical book.

    James W. Carroll Jr.

  3. From the President: Sally Yates and the Integrity of the Department of Justice

    What is the proper role of the attorney general?

    Barry J. Pollack

  4. Informal Opinion: So You Want to Be a Criminal Defense Attorney

    Criminal defense attorneys are the last bastion of protection against the onslaught of government persecution and bias faced by defendants.

    Randy Wilson

  5. Inside NACDL: The Forgotten Souls

    Although the president reduced the sentences of 1,715 nonviolent prisoners serving extremely long sentences, he did not commute the sentences of clemency applicants who were not U.S. citizens.

    Norman L. Reimer

  6. Juror Misconduct in the Age of Social Technology

    Is it possible to have a trial by an “impartial” jury in the age of smartphones and the internet? The temptation and the ability to “research” the case is often too much for jurors to overcome. The sea of information (and misinformation) about trials and the subject matter related thereto is endless. Joshua Dubin discusses the legal standard for juror misconduct, and he provides recommendations to help prevent it and expose it when it occurs.

    Joshua Dubin

  7. NACDL News: Groups Provide Critical Immigration Advisories for Defense Lawyers After the Administrat

    Both criminal defense and immigration groups have released critical practice advisories in response to the executive orders (EO) on immigration policy issued by the president on Jan. 25, 2017. The executive orders affect, among other areas, Immigration and Customs Enforcement (ICE) actions and priorities, including who ICE seeks to detain and deport. Thus, it is essential for defense lawyers to stay informed of all changes and how they are being implemented through consultation with immigration experts.

    Vanessa Antoun

  8. NACDL News: NACDL Report Documents ‘Sixth Amendment-Free’ Proceedings in South Carolina Courts

    On Jan. 18, 2017, NACDL released its second report on South Carolina’s summary courts, Rush to Judgment: How South Carolina’s Summary Courts Fail to Protect Constitutional Rights. The Sixth Amendment of the U.S. Constitution guarantees that a person accused of a crime has the right to a lawyer, whether or not he or she can afford to hire one. In South Carolina, the bulk of criminal cases are relatively minor offenses heard in municipal and magistrate courts, collectively referred to as summary courts. As demonstrated by the NACDL reports, these courts routinely fail to inform defendants of their right to counsel and refuse to provide counsel to the poor at all stages of the criminal process. South Carolina summary courts also regularly violate the Constitution by sentencing defendants to jail simply because they cannot afford to pay fines.

    Ivan J. Dominguez

  9. NACDL News: President Obama Caps Final Week in Office with 539 More Commutations

    On Jan. 17, 2017, President Obama announced 209 grants of commutation, of which 100 were cases supported by Clemency Project 2014. Just two days later, on January 19, President Obama announced 330 more grants of commutation, of which 189 were supported by the Project. The 330 grants represented the largest single set of commutation grants of Obama’s tenure as president.

    Ezra Dunkle-Polier

  10. NACDL® 2017 Election Procedures

    NACDL® 2017 Election Procedures March 2017 Champion.


  11. Preparing a Client for a Psychosexual Evaluation

    A psychosexual evaluation (PSE) is an important tool in the resolution of many sexual misconduct cases. A PSE is an empirically informed assessment of a client’s sexual development, sexual history, paraphilic or deviant interests, and risk of becoming a repeat offender. The evaluation should identify any treatment needs and propose a treatment plan. The evaluation also can pose risks of new criminal charges, however, and thus can negatively affect the outcome of a case. Knowing what the client will disclose enables the attorney to advise the client whether to go forward with the evaluation, refuse the evaluation, or refuse to answer certain questions. The conversations necessary to prepare a client for a PSE are not easy or quick or pleasant, but they are essential to effective representation.

    Brad A. Meryhew and Alexandria Hohman

  12. The Road to Hell: The Case Against Solitary Confinement

    Solitary confinement is unconstitutional punishment for prisoners who have, or are at risk of, serious mental illness. Dan Jackson and Nicholas Goldberg point out the negative effects — hallucinations, hypertension, uncontrollable anger, suicidal thoughts, and chronic depression. It is no excuse to claim that the rules against solitary confinement do not apply as long as the prisoner has contact with guards and occasional visits from lawyers, psychiatrists, and family members.

    Dan Jackson and Nicholas Goldberg

  13. Winning at Sentencing With Theories, Themes, and the Creative Demonstration of Truth

    Before moving ahead with any contested sentencing, lawyers must first articulate the theory of their sentencing argument. Only then will their sentencing stories and the tools they need to tell them begin to take shape. After laying this solid story foundation, lawyers must then do the creative work of fleshing out the dominant themes that serve to illuminate the emotional heart of the theory, or what attorney Doug Passon refers to as the truth of a case. Simply saying the case is about “abuse” or “mental illness” or “addiction” does not mean the defense has come up with a theme. Those are not themes. Those are ideas. The theme is what the defense lawyer says about those ideas. For example, “love” is not a theme. Instead, “money cannot buy love” and “she would have done anything for love” are themes.

    Doug Passon