NACDL - May 2015

From the President: Questions, but Few Answers, Surround Police Body-Worn Cameras

NACDL formed a task force to study policy body-worn cameras and their related issues. How does one balance and address the public’s interest in seeing video footage recorded by police, a target or criminal defendant’s right to access the footage, and a subject or crime victim’s interest in maintaining privacy?

Theodore Simon

Law Enforcement Use Of Force: Safe and Effective Policing Requires Retention Of the Reasonable Belie

The deaths of unarmed suspects have led to claims of excessive police force and proposals for grand jury reform. North Carolina lawyer J. Michael McGuinness states, however, that people calling for reform are using emotion “to attempt to eradicate long-settled law that strikes a balance between the rights of police officers and suspects.” He adds that due to the proliferation of guns and the necessity of quick police action, some innocent members of the public will inevitably be killed or injured by the police, especially when they make gestures inferring that they are retrieving a weapon.

J. Michael McGuinness

Lawful Use of Deadly Force by the Police: What’s Wrong in Ferguson and Elsewhere

In light of the killing of Michael Brown in Ferguson, Mo., should “use of deadly force to arrest” laws be changed? The authors recommend that state statutes be amended to employ an “objective necessity” test in cases involving “deadly force” arrests. This proposed standard would empower grand juries and petit juries to determine if an officer committed a crime — regardless of the officer’s subjective belief that the use of deadly force was necessary.

Steven Salky, Jacob Schuman, and Keisha N. Stanford

McFadden v. United States: Deconstructing Synthetic Drug Prosecutions

A jury convicted Stephen McFadden under the Analogue Act for selling “bath salts.” When ingested, bath salts can produce sensations similar to cocaine and methamphetamine. McFadden regularly checked the government’s list of banned substances and determined that his were not on the list. When a substances he was selling made the list, McFadden would stop selling it. In order to convict an individual of distribution of a controlled substance analogue, must the government prove that the individual “knew” that the substance constituted a controlled substance analogue, or is it sufficient merely to prove that the individual distributed the substance with the intention that it be for human consumption? This question earned the attention of the U.S. Supreme Court, which heard oral argument on April 20, 2015. What mens rea is required for this type of prosecution? Will the justices supply direction to lower courts concerning jury instructions in controlled substance analogue cases?

Jeffrey C. Grass

Microscopic Hair Comparison Analysis Review Project: A Milestone in the Quest for Forensic Science

The results of the first phase of a project to review FBI microscopic hair analysis testimony and lab reports produced the staggering revelation that FBI examiner testimony in at least 90 percent of the trial transcripts analyzed contained erroneous statements. This development likely will serve as a milestone in the quest for forensic science reform.

Norman L. Reimer

NACDL News: Clemency Project 2014 Applauds Obama Administration’s Clemency Grants; Hopes Raised for

President Obama granted clemency to 22 individuals on March 31, including in cases in which clemency was supported by volunteer lawyers through Clemency Project 2014.