August 2015
Learn how to use experts effectively in cases involving Internet chat rooms and police sting operations.
Articles in this Issue
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Affiliate News
Affiliate News for August 2015 Champion.
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Book Review: I’m Sorry for What I’ve Done: The Language of Courtroom Apologies
In I’m Sorry for What I’ve Done: The Language of Courtroom Apologies, M. Catherine Gruber studies the words spoken by defendants in 52 sentencings that occurred before three federal judges. Gruber provides the defendants’ approximate ages, their offenses, their criminal histories, and their ranges under the federal Sentencing Guidelines. She tells us what the defendants said and what sentences judges imposed.
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Book Review: Reflections on Judging
Judge Richard A. Posner has served over 30 years as a judge of the U.S. Court of Appeals for the Seventh Circuit, listened to oral arguments in more than 6,000 cases, read more than 15,000 briefs and written more than 2,800 published opinions. (Yes, he writes his own opinions.) In Reflections on Judging, he asserts that “the law should be simple, regardless of the complexity of the issues it grapples with.” But that is not the current state of the legal profession, which faces the problems of an increasingly complex world magnified by the judicial system’s own internal complexities.
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Down the Rabbit Hole: The Federal Sentencing Guidelines Oxycodone to Marijuana Equivalency
Calculation Is Arbitrary and Without Reason
Each year judges sentence people to erroneously enhanced sentences for trafficking in oxycodone. This has occurred because the U.S. Sentencing Commission made an error in calculating the appropriate guideline sentencing range for trafficking in pure oxycodone. Members of Congress addressed the sentencing disparity between offenses for crack and powder cocaine in 2010. Now they need to address the problem surrounding oxycodone.
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Foundation for Criminal Justice 2015 Awards Dinner: Privacy in the Digital Age
Freedom, the Fourth Amendment, and the Future
Criminal defense stalwart Michael E. Tigar delivered the keynote address at the Foundation for Criminal Justice awards dinner in Denver, Colo., on July 24, 2015. Following his remarks, federal criminal appeals attorney Peter Goldberger received the Robert C. Heeney Award, NACDL’s highest honor.
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From Chat Room to Courtroom: The Internet, Experts, and Entrapment
In an attempt to find child predators, police officers visit Internet chat rooms and pretend to be underage. When arrested in these sting operations, most defendants plead guilty. But the chat room is a world of sexual fantasy. Did the defendant believe he was communicating with another adult who was pretending to be a child within the sexually charged atmosphere of an adult chat room?
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From the President: Is Gideon on Life Support? There Are Signs of Life.
NACDL has started an initiative aimed at securing the fundamental right of effective representation of counsel for the 80 percent of defendants in the criminal justice system who rely on representation provided by a government entity.
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Handling the 21st Century Criminal Case: You Don’t Know What You Don’t Know
In a case that involves electronic data, a properly conducted cross-examination of a computer forensics expert can go a long way in creating reasonable doubt about the integrity of the government’s investigation and the evidence the government derived from it. Using examples from an actual trial transcript, Joshua Horowitz discusses (1) how to attack the methodology used by the government’s technical witnesses when they obtained computer forensic evidence and (2) how to use the experts’ purported knowledge against them.
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Incorporating Memorable Demonstratives Into Opening Statements
Some attorneys resist using a demonstrative aid during opening statements because they do not want to appear “slick” or “fancy,” or because they want the jury to “focus on me and what I have to say, not a picture or a chart.” A growing body of research suggests that people absorb information more comprehensively through a combination of verbal communication and visual stimuli. One study that compared opening statements delivered with and without simple PowerPoint visuals found that mock jurors were persuaded more often when an attorney used visuals. Joshua Dubin provides examples of effective opening demonstratives.
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Inside NACDL: A Fundamental Flaw in the Federal Indigent Defense System
Lack of Independence from Judicial Control
On September 9, 2015, NACDL released a report titled “Federal Indigent Defense 2015: The Independence Imperative.” The report articulates seven fundamental principles that are essential to ensure a robust federal indigent defense system.
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Leadership: New Leaders Bring Fresh Insights and Energy
NACDL welcomes new members to its board of directors.
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NACDL News: Clemency Project 2014 Applauds Commutation of 46 Federal Prison Sentences
On July 13, President Barack Obama commuted the sentences of 46 prisoners, four of whom were early applicants who had their petitions reviewed and supported by Clemency Project 2014TM.
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NACDL News: E.G. ‘Gerry’ Morris Sworn In as NACDL President
Austin, Texas, criminal defense attorney E.G. “Gerry” Morris was sworn in as president of NACDL at the Association’s 58th Annual Meeting in Denver, Colo., on July 26. Morris has served on NACDL’s Board of Directors since 2001. He has served as co-chair of NACDL’s Indigent Defense and Fourth Amendment Committees, as chair of NACDL’s Familial DNA Task Force, and as vice chair of NACDL’s Audit Committee. Last year, Morris served as president-elect of NACDL.
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NACDL News: Marissa McCall Dodson Receives Champion of State Criminal Justice Reform Award
Marissa McCall Dodson, policy director and attorney at the Georgia Justice Project (GJP), was honored on July 24 with the NACDL Champion of State Criminal Justice Reform Award at the Association’s 14th Annual State Criminal Justice Network conference in Denver, Colo. The award recognizes a group or an individual who has made exceptional efforts advocating for progressive reform of a state’s criminal justice system.
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NACDL News: NACDL Continues Push for Public Disclosure of DOJ Discovery Blue Book
The National Association of Criminal Defense Lawyers brought its years-long effort to secure the public release of the Department of Justice (DOJ) Federal Criminal Discovery Blue Book to the U.S. Court of Appeals for the District of Columbia Circuit, filing its opening brief on July 15, 2015. In it, NACDL argues that the Blue Book may not be withheld as work product or as law enforcement information whose disclosure risks circumvention of the law. On July 22, three amicus curiae, or friend-of-the-court, briefs were filed by (1) 63 law professors from across the nation, (2) the Constitution Project and the Innocence Project, and (3) the American Civil Liberties Union (ACLU), ACLU of the Nation’s Capital, and the Electronic Frontier Foundation (EFF).
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NACDL News: Peter Goldberger Receives 2015 Heeney Award
Philadelphia criminal defense lawyer Peter Goldberger was this year’s recipient of NACDL’s Robert C. Heeney Memorial Award. He received the award on July 24 at the Foundation for Criminal Justice 2015 Awards Dinner in Denver, Colo. This highly prestigious recognition is presented annually to the NACDL member who best demonstrates the goals and values of the Association and of the legal profession.