Equal Justice & the Grand Jury: Achieving Racial Fairness

Presented by: Angela J. Davis, Professor, American University Washington College of Law; Peter L. Davis, Assoc. Professor Emeritus, Touro College Law Center, Central Islip, NY; Ross H. Garber, Shipman & Goodwin, Hartford, CT; Tanya Clay House, Director of Public Policy, Lawyers' Committee for Civil Rights Under Law; and Darryl A. Stallworth, Esq., Oakland, CA, former Alameda County Deputy District Attorney

Due Process & the Grand Jury: Protecting Targets and Witnesses

Presented by Roger Fairfax, Professor, George Washington Univ. School of Law; Carol Elder Bruce, K&L Gates, Washington, DC; Niki Kuckes, Professor, Roger Williams University School of Law, Bristol, RI; Gerald B. Lefcourt, Esq., New York, NY; and Gina Simms, Ober | Kaler, Washington, DC

Statement of the Coalition to Preserve the Attorney-Client Privilege to the Senate Judiciary Committee regarding the attorney-client privilege following the McNulty Memorandum and the consideration of Attorney-Client Privilege Protection Act of 2007 (S. 186, H.R. 3013).

By the Coalition to Preserve the Attorney-Client Privilege: While the new Justice Department policy is a welcome and important improvement over its previous policy outlined in the McNulty Memorandum, a comprehensive solution to the ever-widening problem of government-coerced waiver is still critically needed. Therefore, the Coalition strongly supports the adoption of a Presidential Executive Order to all federal agencies requiring them to adopt effective DOJ-type reforms or the enactment of comprehensive federal legislation like the Attorney-Client Privilege Protection Act (ACPPA).

Report of Task Force on Attorney-Client Privilege, New York State Bar Association, March 27, 2006.

Comments to the U.S. Sentencing Commission from the Coalition to Preserve Attorney-Client Privilege regarding proposed amendments to the sentencing guidelines.

“No Retreat Now – The long fight to protect the attorney-client relationship against aggressive prosecutors can only end with legislation,” by Brian W. Walsh and Stephanie A. Martz, Legal Times, September 1, 2008.

The Coalition to Preserve the Attorney-Client Privilege issued this statement on the Senate Judiciary Committee confirmation proceedings scheduled for January 15, 2009 on the nomination of Eric H. Holder Jr., to be Attorney General of the United States.

American Bar Association, Talking Points in Support of the Attorney-Client Privilege Protection Act of 2007, July 2009.

On December 12, 2006, U.S. Deputy Attorney General Paul J. McNulty announced that he was releasing revised corporate charging guidelines for federal prosecutors throughout the country. The memorandum comes on the heels of a period in which federal prosecutors have enjoyed unprecedented success in combating corporate fraud, resulting in increased corporate self-policing and accountability.

McNulty Memorandum Press Release, December 12, 2006 - U.S. Deputy Attorney General Paul J. McNulty announced today during a speech at a meeting of the Lawyers for Civil Justice in New York that the Department of Justice is revising its corporate charging guidelines for federal prosecutors throughout the country.

Memorandum of Amici Curiae the National Association of Criminal Defense Lawyers and the American Civil Liberties Union Foundation of Vermont.

Argument: The COVID-19 pandemic is of unprecedented national and global significance, necessitating a drastic local response. The rate of infection in the Vermont DOC is striking in comparison both to the rate of infection in Vermont as a whole, and even compared to the highest rate of infection for any state in the country. The Department of Corrections is demonstrably ill-equipped to adequately respond to the pandemic, and the Court must intervene to protect the constitutional rights of those incarcerated. The Court should join with judges from other jurisdictions across the country, who have reviewed inmate motions and petitions similar to those that are currently before this Court, and who have taken steps to reduce incarceration by releasing inmates on bail in light of this unprecedented pandemic and the conditions of confinement issues it brings to light.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiff

Argument: Texas Governor Greg Abbot’s Executive Order GA-13 of March 29, 2020 seeks to order that Texas judges may not release persons to personal bonds where the person has previously been convicted of a crime that involves physical violence or the threat of physical violence or of a person currently arrested for such a crime; that is supported by probable cause. Leaving aside the vague terms of this executive order, it encroaches on the function of the courts to determine whether persons should be released on personal bond, whether they should be released on electronic monitoring, or should be released on a cash or surety bond with conditions. It does not prohibit release of this same class of described persons on cash or surety bail. Therefore, it appears to place restrictions for release on the poor over those for those of greater means without any rational relationship to a distinguishing important governmental purpose. Thus, those previously convicted of the defined crimes or currently charged with those crimes can obtain release; while those without the economic means to post a cash or surety bail cannot obtain release. Under the circumstances presented by the COVID 19 pandemic and the Texas Criminal justice system, GA 13 violates the separation of powers, interferes with judicial independence, violates equal protection and due process of law, and constitutes cruel and unusual punishment for those who cannot afford cash or surety bail who otherwise qualify for release on personal bond. 

Nearly a half million people, or approximately three percent of Florida's adults, pass through the state's misdemeanor courts each year. Most are found guilty. The average court appearance lasts as little as three minutes. [Released July 2011]

NACDL created The Commission to Reform the Federal Grand Jury, drawing on the expertise of a variety of professionals throughout the criminal justice system. Commissioners spent two years examining the need for changes in the grand jury process and produced a Federal Grand Jury Bill of Rights based on their findings. The ten reforms set forth in this Bill of Rights, largely echoing those proposed by the American Bar Association (ABA) more than 20 years ago, would restore balance to the grand jury process and better protect against unwarranted prosecutions. [Released May 2000]