November 2018

November 2018 Cover

Although a prosecutor has a nondelegable duty to learn of Brady evidence in a case, a defense lawyer cannot count on the prosecutor to go out and look for evidence that will free the defendant.


Articles in this Issue

  1. A Brady Primer: John Leo Brady – The Defense Lawyer's Best Friend

    Prosecutors are required to turn over more than exonerating evidence, and their Brady disclosure obligation is not limited to information about which they have actual knowledge. Rather, the prosecutor has a nondelegable duty to learn of Brady information in the case. But defense lawyers cannot be naive and expect the prosecutor to go out and look for evidence that will free their clients. Motions must be filed, hearings set, and follow up conducted so that every stone is unturned.

    Denis deVlaming

  2. Affiliate News

    Affiliate News for November 2018 Champion

    Gerald Lippert

  3. Book Review: A Courageous Fool: Marie Deans and Her Struggle Against the Death Penalty

    Unless people have worked within the small death penalty circle in the United States, they most likely have never heard of Marie Deans. Even then, people may not know about Marie’s work on behalf of condemned men unless they were involved in capital cases in the South — particularly Virginia — during the 1970s, ’80s or ’90s. If, however, someone wants to see how one person can understand the basic human need for forgiveness and healing, then learning about Marie Deans — a woman who selflessly used her own suffering to expose the humanity in others — is imperative. By gaining an understanding of both Marie and the people she came to know through her work fighting against capital punishment, one can truly recognize the social cost incurred with the use of the death penalty.

    Robin C. Konrad

  4. Book Review: Intellectual Disability and the Death Penalty: Current Issues and Controversies

    This highly useful reference deserves a place on the bookshelf of every capital defense lawyer and mitigation specialist,1 regardless of whether they suspect a current client meets the criteria for intellectual disability and thus exemption from execution under Atkins v. Virginia,2 Hall v. Florida,3 and Moore v. Texas.4  

    Russell Stetler and John Philipsborn

  5. Book Review: Prosecution Stories

    Bennett Gershman worked in the Manhattan District Attorney’s Office for six years before deciding he wanted to pursue a job with the office of the deputy attorney general charged with investigating corruption in New York City’s criminal justice system. The creation of that office sprang from the general belief that prosecutors enjoyed too close a relationship with police officers to effectively investigate them. Frank S. Hogan — Gershman’s then-boss, and the man whose name graces the building in which the Manhattan District Attorney’s Office is housed today — believed that the AG’s new unit was “a blot on the reputation and honor of every district attorney in the city,” and interpreted Gershman’s willingness to join that unit as a sign of disloyalty. He instructed Gershman to leave his job immediately upon being informed of the proposed job transfer. Thus, Gershman’s service as an assistant district attorney ended in a forced and abrupt exit.

    Gabriel Reyes

  6. Determining RF Coverage in Criminal Cases

    When trying to establish that a defendant’s cellphone was in the area where a crime was committed, sometimes the government will use vague descriptions of cell site coverage areas. These usually consist of an arbitrary radius from the cell site that has not been scientifically determined. The prosecution typically will create a coverage area that is its “best case” and that encompasses the crime scene, thus “proving” that the defendant was in the area. When the prosecution provides this type of evidence, it is important for the defense to (1) obtain the call detail records and the cell site location information directly from the wireless operator, and (2) engage its own expert to create coverage plots that are based on a scientific approach. To determine the actual coverage of a cell, a combination of sophisticated radio frequency (RF) modeling and drive testing must be performed.

    Richard Miletic

  7. From the President: Defending the Press: The Importance of a Free and Open Press

    to the Criminal Justice System

    The media is under attack. Criminal defense lawyers should speak out in support of journalists in their fight to protect their rights under the First Amendment.

    Drew Findling

  8. Inside NACDL: Shattering Shackles and Inspiring a New Generation

    Individuals who have been incarcerated participated in NACDL’s conference in Atlanta in August 2018. The conference tackled many of the painful criminal justice issues confronting the United States.

    Norman Reimer

  9. Law, Child Abuse, and the Retina

    There is a longstanding, widespread belief in pediatric medicine that a finding of retinal hemorrhages in an infant or young child is strong evidence of child abuse. This belief originated decades ago as a cornerstone of the Shaken Baby Syndrome (SBS) or the Abusive Head Trauma (AHT) diagnosis. Most debate in the case law about the forensic reliability of retinal hemorrhages is embedded in a broader discussion about the SBS/AHT diagnosis. Pathologist Evan Matshes and defense attorney Randy Papetti urge, however, that the beliefs about retinal hemorrhages need to be addressed distinctly and head-on in the courts. Beliefs about retinal hemorrhages began to falter in the 2000s. Given the present understandings and uncertainties, courts performing their gatekeeping duty under Daubert and its state law progeny should not permit testimony about the supposed forensic value of retinal hemorrhages.

    Evan Matshes, M.D. and Randy Papetti, Esq.

  10. Public Defense: Playing Games with Client Rights, Ethical Rules, and Attorneys’ Licenses

    An attorney violates the Rules of Professional Conduct that require the effective assistance of counsel when she accepts a case that results in a caseload so high that it impairs her ability to provide competent representation.

    Michael Barrett

  11. Sentencing, Bureaucracy, and the Paradigm of Disillusion

    Plea bargaining and sentencing are frequently performed in a mechanical and ritualistic way. Judge John Kane writes that tables, charts, codes, and equations produce no insight into the problems each case presents. A significant number of prisoners have mental health problems, but forensic psychiatry and psychology are employed neither as well nor as often as they should be. Judge Kane analyzes four cases involving defendants with mental health problems to illustrate the struggle judges face.

    Judge John L. Kane