September/October 2017
Admitting Email Into Evidence – Overcoming the Hurdles
Articles in this Issue
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A Primer for Representing Medical Professionals in Criminal Cases
A criminal charge will be one of the most devastating life events for a medical professional. Certain criminal convictions will result in loss of enrolled provider status with public and private health care benefit programs. Unfortunately, the criminal case may be but the first of many insults; the client’s legal concerns either will evolve, or will already have evolved, past the criminal defense attorney’s case. It makes no difference whether the criminal case involves practice-related conduct such as billing fraud or patient abuse, or whether the criminal charges are nonwork-related such as DUI or domestic violence. Industry-specific state and federal laws can provide for sanctions and can cause the loss of livelihood based on the same set of facts as the criminal case. Criminal counsel’s strategy and decisions can have a ripple effect on parallel and collateral administrative and civil matters. Laura Perkovic identifies several such matters and discusses the synergy among the proceedings.
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Admitting Email Into Evidence
Emails, texts, and tweets have become ubiquitous in modern communication. Particularly in white collar cases, email messages are proving to be a critical piece of evidence in government prosecutions. Moreover, the government usually has no difficulty getting such material admitted as an admission of a party opponent or a co-conspirator statement. But when the defense has exculpatory evidence to present, the hurdles are much higher and there is no guarantee that an email, no matter how important to the defense, will be admitted.
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Affiliate News
Affiliate News, September 2017 Champion.
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Book Review: Illusion of Justice - Inside Making a Murderer and America’s Broken System
Illusion of Justice is not simply a companion piece to the popular Netflix series on the continuing legal odyssey of Steven Avery and his nephew Brendan Dassey. It is a gripping firsthand account of what really unfolds when a criminal defense lawyer is brought into a high profile homicide case, and more so, what happens when the system and the science are like loaded dice against one’s client. The roller coaster series of events in Avery’s life — first conviction, then exoneration; then a new charge and the commencement of a forced march towards conviction, no matter what — is dealt with expertly by the author.
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Book Review: Tell the Client’s Story - Mitigation in Criminal and Death Penalty Cases
Gregg v. Georgia was one of several cases that came down from the Supreme Court on July 2, 1976, reinstituting the death penalty in the United States. Kentucky responded by passing a death penalty bill almost identical to the Georgia statute approved in Gregg. Kentucky’s death penalty was back in business.
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Book Review: Trial Manual 6 for the Defense of Criminal Cases
We are both former public defenders who cut our teeth on earlier versions of this essential criminal defense treatise. For us and for new generations of criminal defense lawyers, there is a newly revised, two-volume Trial Manual 6 for the Defense of Criminal Cases by Anthony Amsterdam and his NYU colleague Randy Hertz. Tony Amsterdam has been an incredibly creative criminal defense lawyer and teacher for close to six decades and his teaching and counseling have guided many of us through the treacherous landscape of criminal defense. Randy Hertz has made his mark in exceptional clinical teaching and advocacy and as co-author of a highly touted treatise on federal habeas corpus practice (with James Liebman) and juvenile defense practice (with Amsterdam and Martin Guggenheim). Their skills and innovative thinking have produced a Manual that should be on every criminal lawyer’s book shelf, serving as the first reference book for inexperienced lawyers and as an essential resource for the experienced practitioner.
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Compassion and a Steely Resolve - Heeney Award Winner - George H. Newman
When asked why he joined NACDL, Philadelphia defense lawyer George H. Newman had a ready answer: “It feels as if I was born into it. I joined because I wanted to be the best criminal defense lawyer that I could possibly be.” After winning the 2017 Heeney Award, NACDL’s highest honor, Newman talked to NACDL Past President Ephraim Margolin about the award and what set him on a path to become one of liberty’s last champions.
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EB-5 Visa Fraud Cases — What Practitioners Need to Know
Under the EB-5 Immigrant Investor program, the government grants conditional permanent residency status to individuals who invest $1 million (or $500,000 in rural or high unemployment areas) in an enterprise or business that creates or preserves at least 10 full-time jobs. The EB-5 Program has been a magnet for abuse by parties on all sides of the transactions. Depending on the case, immigration attorneys, foreign investors, and the U.S.-based offerors of EB-5 investments can be defendants or victims. The typical EB-5 scheme is relatively simple, explicit and demonstrable, which makes such cases attractive to prosecutors. William Haddad analyzes a sampling of the cases brought by the Department of Justice and the Securities and Exchange Commission, and examines potential regulatory and legislative reforms.
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From the President: Predictive Policing: The Modernization of Historical Human Injustice
Predictive policing refers to the police tactic that uses computer data to anticipate where and when crime will occur. Ostensibly to help departments deploy officers more effectively, predictive policing magnifies pre-existing bias in policies and tactics that are unnecessarily harming communities of color.
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Inside NACDL: Clemency Project Redux: NACDL Renews Effort to Seek Freedom for the Imprisoned
In August 2017, NACDL and Families Against Mandatory Minimums (FAMM) announced the launch of a state-focused clemency initiative, the NACDL/FAMM State Clemency Project. The program is designed to recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners in submitting applications for sentence commutation.
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NACDL News: NACDL Launches Effort to Provide Pro Bono Counsel to Protesters
On September 19, 2017, the Foundation for Criminal Justice (FCJ) and NACDL established the First Amendment Strike Force and Mass Defense Unit. The goal of this project is to provide qualified counsel to represent protesters when the exercise of First Amendment rights results in arrest and prosecution. Specifically, NACDL supports a cadre of criminal defense lawyers who will be available to provide pro bono assistance to protesters throughout the country in the event of mass arrests. For those lawyers who volunteer, NACDL will maintain a database of available counsel and provide training and support at no cost.
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NACDL News: NACDL Opposes Private Prisons, Urges Sweeping Reforms in the Absence of a Ban
At its 2017 annual meeting on July 29, 2017, in San Francisco, the Board of Directors of the NACDL adopted a statement and resolution opposing prison privatization and urging various critical reforms to the extent incarcerated individuals in the United States continue to be housed in privately-operated prisons and jails. The issue was studied in great depth by NACDL’s Corrections Committee, which developed and presented the statement and resolution adopted by NACDL’s Board of Directors.
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NACDL News: NACDL Visits Detroit for Two-Day ‘Race Matters’ Conference
Defense lawyers met in Detroit for NACDL’s inaugural Presidential Summit & Seminar — “Race Matters: The Impact on Criminal Justice” — on September 14-15, 2017. Seminar attendees heard presentations on the latest research and tools that can help to identify, challenge, and ultimately eliminate the racism that prevents clients from realizing fundamental fairness and due process. Topics on the agenda included charging decisions, collateral consequences, and using social science data in pretrial motions. Pictured: NACDL President Rick Jones delivering opening remarks in Detroit.
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NACDL News: Seminar Attendees Discuss Hottest Topics in White Collar Law
NACDL’s Defending the White Collar Case seminar, held September 14-15, 2017, in Washington, D.C., included robust discussions of government tactics and hot-button topics. Presenters and attendees exchanged ideas about, among other things, key witness preparation and challenging implicit bias during jury selection. Pictured (from left): Program Co-Chair Abbe D. Lowell and keynote speakers Jan Crawford (CBS), Sari Horwitz (Washington Post), and Carrie Johnson (NPR).
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NACDL Welcomes Caleb Kruckenberg
Following a national search, Caleb Kruckenberg has joined NACDL as white collar crime counsel. Caleb will support NACDL’s White Collar Department in its reform efforts across a broad range of issues, including overcriminalization, discovery practice, forfeiture abuse, cybercrimes, and much more.
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Renewed Government Focus on Section 7212(a)
What Does It Mean to Corruptly Endeavor to Impede the IRS?
Two issues remain unresolved in connection with prosecutions under Section 7212(a) of Title 26, the Internal Revenue Code. Can a defendant’s failure to act, even under circumstances that might support a charge of other tax offenses, suffice to support a conviction under Section 7212(a)? As an obstruction statute, does Section 7212(a) require proof by the government that the defendant intended to impede a pending IRS proceeding or investigation? The Supreme Court may soon answer these questions.
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White Collar Crime Policy: Strict Liability Crimes Keep US from Being ‘Nation of Second Chances’
A refashioning of statutes that ensures meaningful criminal intent standards in criminal laws, and which applies to all manner of offenses, is a due process-centered reform that should be included in the panoply of much-needed criminal justice reforms.