November 2016

November 2016 Cover

What does it mean to “sit and rock” with a client? Find out in this month’s issue of The Champion.


Articles in this Issue

  1. Affiliate News

    Affiliate News for November 2016 Champion.

    Gerald Lippert

  2. Attacking the Use of Physical Evidence Seized Under the Foreign Intelligence Surveillance Act

    Increasingly, the government is using the evidence derived under the Foreign Intelligence Surveillance Act (FISA) to bring criminal cases. Elizabeth Little and Kelly Quinn provide an overview of FISA’s physical search procedures. They walk defense lawyers through the process of defending a case involving the government’s use of information gathered through a physical search authorized under the secret FISA process.

    Elizabeth Little and Kelly C. Quinn

  3. Book Review: Impartial Justice by Eric T. Kasper

    Impartial Justice is chock full of analysis about what constitutes a neutral, impartial, and unbiased decisionmaker. Part one focuses on juries, part two judges, and part three noncourt settings. Part one and two are of particular interest to the criminal justice practitioner and important in light of recent action by the U.S. Supreme Court.

    Matthew T. Mangino

  4. Book Review: Making a Case for Innocence - True Stories of a Criminal Defense Investigator

    April Higuera has investigated some interesting cases in her 15-year career as a defense investigator. In her new book, Making a Case for Innocence, Higuera makes a strong and reasoned argument for a full throated defense — one that, if properly implemented, should almost always include the services of a competent investigator.

    Hal Humphreys

  5. Book Review: The Lynching - The Epic Courtroom Battle that Brought Down the Klan

    The Lynching is a difficult book to review. In some ways it is two books in one. In one part, it tells the story of a path-breaking lawsuit that “brought down” the Ku Klux Klan. The story of the lawsuit follows a fascinating historical recounting of the Klan’s tight, symbiotic relationship with Alabama politicians and with George Wallace in particular. The first part of the book is essentially a mini-political biography of Wallace and his rise to power in Southern, and then national, politics. The Klan was a “fearless enforcer of segregation,” and segregation was the central tenet of Wallace’s being. By far, the history of the Klan’s direct and close involvement in Southern political life is the most interesting and well-researched part of the book. Also, in this highly informative section, the author recounts how the Klan would arrange in advance, with local law enforcement’s approval, to commit their violence with impunity.

    Tony Bornstein

  6. Book Review: Unfair - The New Science of Criminal Justice

    We rightly see the criminal justice system — based on logic and the rule of law — as a great achievement. But is it a scientific achievement? That tricky question lies at the heart of Adam Benforado’s Unfair: The New Science of Criminal Justice. How far have we really come, he asks, from the days when we could dunk a person in the water to tell whether he was lying?

    Andrew George

  7. Collateral Consequences: Considering Collateral Consequences in Your Representation

    In 2016 Judge Frederic Block decided United States v. Nesbeth, a case that addressed the collateral consequences facing a convicted defendant and Judge Block’s belief that judges should consider such consequences in rendering a lawful sentence.

    Caprice R. Jenerson

  8. Crossing the Cop: Constructive and Destructive Cross-Examination in DUI Cases

    Often in DUI cases, the only witness through whom the defense lawyer can tell the client’s story is the government’s witness — a law enforcement officer who arrested the client and who has been trained to testify in a way that is harmful to the client. The coordinated use of constructive and destructive cross-examination provides a framework in which the defense attorney can tell the client’s story through an adverse witness. Destructive cross-examination, the traditional approach to questioning an adversarial witness, can be utilized to attack the opposing theory or the opposing witness. The contemporary approach of constructive cross-examination, on the other hand, allows the defense to leverage the officer’s knowledge to its advantage.

    Matt Dodd

  9. From the President: A Civil Rights Battle for Our Times

    One of the great civil rights battles of our time is to ensure that people who end up in the criminal justice system are adequately represented.

    Barry J. Pollack

  10. Inside NACDL: Two New Tools to Include in a Cutting-Edge Defense Toolkit

    The government recently released two useful reports, one discussing the DEA’s paid informants and one discussing forensic science.

    Norman L. Reimer

  11. NACDL News: AJA Panel Looks at Right to Counsel

    AJA Panel Looks at Right to Counsel.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  12. NACDL News: NACDL Presents on the Defense Function to China Law Society Delegation

    By invitation from the International Law Institute, NACDL President Barry J. Pollack and NACDL Executive Director Norman L. Reimer delivered a half-day presentation to a visiting delegation from the China Law Society on Sept. 14, 2016.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  13. NACDL News: NACDL Represented at First-Ever White House Briefing on LGBT and HIV-related Criminal Ju

    The White House hosted dozens of formerly incarcerated LGBT people, policymakers, and advocates on Sept. 20, 2016, to discuss the unique challenges faced by LGBT people and people living with HIV in the criminal legal system.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  14. NACDL News: NACDL Sr. Privacy and National Security Counsel Jumana Musa Receives Major Civil Rights

    Jumana Musa, senior privacy and national security counsel at NACDL, received the American-Arab Anti-Discrimination Committee (ADC) Ralph Johns Civil Rights Award on October 1. She received the award at ADC’s civil rights luncheon during its 2016 National Convention in Washington, D.C.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  15. NACDL News: NACDL Submits Comments on DOJ’s Proposed Uniform Language for Testimony and Reports

    On Aug. 25, 2016, NACDL President Barry J. Pollack submitted comments on behalf of NACDL on the Department of Justice’s proposed standards for testimony and lab reports generated by the Federal Bureau of Investigation (FBI), the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Drug Enforcement Agency. Based upon its extensive experience reviewing testimony and lab reports in the Microscopic Hair Comparison Analysis (MHCA) Review in partnership with the DOJ, FBI, and the Innocence Project, NACDL offered specific comments on the Proposed Uniform Language for Testimony and Reports (ULTR) for the Forensic Hair Examination Discipline.

    Ivan J. Dominguez and Ezra Dunkle-Polier

  16. NACDL News: Public Defense Lawsuit in Kuren v. Luzerne County Allowed to Move Forward

    On Sept. 28, 2016, the Pennsylvania Supreme Court issued a decision in Kuren v. Luzerne County, a class action lawsuit brought on behalf of indigent criminal defendants in Luzerne County, Pa. The lawsuit alleges that Luzerne County’s failure to adequately fund the Office of the Public Defender (OPD), despite repeated requests for additional funding and implementation of reasonable cost-cutting measures, has led to a system in which OPD is unable to fulfill its constitutional duty to provide adequate representation for indigent criminal defendants.

    Diane Price

  17. Sitting and Rocking With the Client

    Lawyers must get to know their clients in order to be zealous advocates, but lawyers cannot achieve this goal unless they are willing to “sit and rock” with the clients. In the absence of this connection, there is a risk that the one person standing between the client and the government — liberty’s last champion — does not care. How does sitting and rocking look in action? Cynthia Roseberry explains.

    Cynthia W. Roseberry

  18. Witness for the Prosecution? - A Primer on Understanding the Limits on the Government’s Gathering of

    Client competency, pleas of not guilty by reason of insanity (NGRI) and mental disease or defect are well-known options available in defending criminal cases. The procedures for addressing these issues differ; states and the federal government provide various mechanisms for raising mental condition defenses. Government access is limited in scope and purpose and is specifically curtailed by both the Fifth and Sixth Amendments. Wendy Calaway discusses the scope of the government’s right to refute a mental capacity defense.

    Wendy R. Calaway