January/February 2015
Discover strategies to overcome the jury’s assumption that if there is DNA evidence, the defendant is guilty.
Articles in this Issue
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‘If DNA, Then Guilty’: Strategies for Overcoming Juror Assumptions About DNA Evidence In Criminal Tr
Jurors who enter a courtroom are familiar with DNA evidence and possess preconceived notions of the role this evidence plays in the criminal justice system. In fact, jurors are likely to think that if there is DNA evidence, then the defendant must be guilty of the crime. Instead of focusing solely on battling the scientific validity of the DNA evidence itself, the defense team should consider challenging the logical, inferential connections between the DNA evidence and a finding of guilt. The authors discuss a 2013 trial to illustrate this strategy.
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Affiliate News
Call for Nominations: NACDL is currently seeking nominations from its Affiliated Organizations for two upcoming vacancies on its Board of Directors for seats that are dedicated exclusively to Affiliate Representatives. The term of service is 2015-2018.
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Book Review: Mistrial: An Inside Look at How the Criminal Justice System Works … And Sometimes Doesn
The criminal justice system is like an alcoholic who refuses treatment, say attorneys Mark Geragos and Pat Harris in Mistrial. While the common belief is that the United States has the best criminal justice system in the world, there are problems that need to be fixed. Beginning with anecdotal stories, the authors entertain and educate the reader with their insider secrets and commentary from high-profile cases. They revisit the O.J. Simpson fiasco, the Susan MacDougal defiance, the Scott Peterson injustice, Michael Jackson, Gary Condit, Chris Brown, and other just-as-important-not-so-famous clients they have represented. That’s just the beginning.
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Book Review: The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final W
Matthew T. Mangino’s book The Executioner’s Toll, 2010 reminds us of what Justice Harry Blackmun famously said in 1994: “I no longer shall tinker with the machinery of death.” Many writers, like Mangino and Evan J. Mandery in A Wild Justice, continue to tinker with the death penalty.
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Book Review: The Science of Perception And Memory: A Pragmatic Guide forThe Justice System
This small, information-rich volume is essential for the library of everyone who cares about the accuracy of witness evidence. Professor Daniel Reisberg provides a comprehensive and comprehensible handbook for understanding how we observe, remember, and recall information that may be critical in a legal proceeding. The book offers not only an overview of the scientific method and its use in the study of memory and perception, but also a strong argument for its utility in the legal system in the search for justice.
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Evidence Forensics — Exposing Tampered Recordings
A defense attorney receives the audio of a police interrogation. It sounds like a solid confession, but what if the detectives paused the recording while they coached the suspect on what to say? What if the defense attorney thinks photographic evidence has been altered to remove something or someone from a photo? Tampering may occur through editing as well as modification of a file’s metadata. For example, a file’s GPS metadata can be altered to show a misleading address for a recorded event. With video, a gun can be inserted into the client’s hands or exonerating details can be removed. What tests are available to help determine if evidence has been altered? Determining the proper testing tools depends upon the specifics of the case and the type of evidence to be tested. The testing results from qualified experts can deliver powerful case support and a devastating rebuttal to both the narrative and expert reports of opposing counsel.
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From the President: The Intersection of Grand Jury Reform and Disparate Justice
The grand jury system is broken and in need of reform. The grand jury is a tool of the prosecution, whether that means to indict without evidence or to fail to indict in the face of arguable evidence.
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Indigent Defense: Defender Office in Philadelphia Receives Fred Turner Award
The National Association of Federal Defenders bestowed its W. Fred Turner Award on Leigh Skipper, Chief Federal Defender for the Eastern District of Pennsylvania, and his staff at the Federal Community Defender Office in Philadelphia.
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NACDL News: NACDL Announces New Initiatives in the Aftermath Of Recent Police Killings
For many years, NACDL has been concerned about the integrity of the grand jury process and the overwhelming influence of prosecutors over that process and its outcomes. Two recent cases in which unarmed black men (Michael Brown and Eric Garner) were killed by law enforcement officers brought NACDL’s concerns back to the forefront. A report issued by NACDL in 2011 identified a core problem of the modern American grand jury system: Grand jurors’ independent exercise of their powers “is frequently superseded by prosecutorial influence, leading some to suggest that while the modern grand jury technically remains an independent body … as a practical matter, it relies heavily on the prosecutor to secure evidence and give the jurors legal advice.” Building upon NACDL’s leading role in addressing racial and ethnic disparities in the criminal justice system, on Dec. 10, 2014, NACDL President Theodore Simon announced plans for a publicly broadcast webinar on grand jury practice in America.
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NACDL News: NACDL Supports ‘90 Million Strong Campaign’ Against the Death Penalty
At an event on Dec. 9, 2014, at the National Press Club in Washington, D.C., NACDL officially joined in the launch of the “90 Million Strong Campaign” against the death penalty in America. Organized by the National Coalition to Abolish the Death Penalty (NCADP), the campaign’s goal is to bring together the millions of Americans who believe the death penalty is wrong, but who have not yet taken action to abolish it. The campaign seeks to build upon the growing momentum away from capital punishment — 31 states and the District of Columbia either do not have the death penalty or have not executed an individual in the past five years, and six states have abolished the death penalty over the past decade.
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NACDL News: Report Underscores Why America Must Never Again Engage in Torture
On Dec. 9, the U.S. Senate Select Committee on Intelligence released a heavily redacted 500-plus page executive summary of a several thousand-page report that was five years in the making. In it, the committee details, among other things, that (1) conduct amounting to torture was in fact carried out by the CIA, (2) the techniques were not effective and indeed often resulted in fabricated information, and (3) significant information about the program provided by the CIA to both Executive and Legislative Branch officials, as well as the public and the media, was misleading, including concerning its degree of brutality.
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Overcriminalization and the Trial Penalty: Gaining Traction One Case — And One Justice — at a Time (
In the Yates case and the Whitfield case, overcriminalization and the “trial penalty” attracted the attention of the U.S. Supreme Court.
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The Death of Criminal Law
Every criminal defense attorney has heard of the trial penalty, i.e., the reality that clients who exercise their right to trial and are subsequently convicted will receive a sentence worse than the sentence they would have received had they accepted a plea bargain. All defense lawyers have stood beside a client who follows the script in a plea allocution, asserting that no one has “threatened or coerced” the plea, but knowing that the entire process is rife with the coercion of vastly enhanced penalties after a trial. In the scenario presented by David Gerger, a lawyer and client discuss the lawyer’s recent meeting with the prosecutor. The client is facing 20 years in prison if convicted. If the client agrees to plead guilty and cooperate in an investigation against another individual, then the prosecutor will recommend 10 months in prison and agree not to prosecute the client’s wife. This scene is repeated daily in law offices around the country.
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Using Checklists To Improve Case Outcomes
Defense attorneys engage in some tasks that are repetitive, but most require a unique blend of research, investigation, and know-how. Jeff Adachi is an advocate of using checklists because they maintain consistency and provide the essential steps needed to accomplish a task. While a defense lawyer should not use a checklist without independent thought or connecting to the client as an individual, checklists can be beneficial to new attorneys and can help more experienced attorneys make sure they have not overlooked anything.