March 2016
This month’s issue provides tips on how to successfully negotiate or dispute the merits of a restitution claim in a child pornography case.
Articles in this Issue
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Affiliate News
Affiliate News for March 2016 Champion.
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Book Review: Flawed Convictions - ‘Shaken Baby Syndrome’ and the Inertia of Injustice
In 1996, the state of Wisconsin successfully prosecuted Audrey Edmunds for an unspeakable crime: the violent shaking death of a six-month-old girl. But 12 years later, an appellate court overturned Edmunds’ conviction because, the appeals court held, “a shift in mainstream medical opinion” casts doubt on the accuracy of expert testimony presented at Edmunds’ trial. Edmunds’ case seemed part of a small, yet potentially-ground breaking trend: a recognition by courts that flawed medical testimony could lead to wrongful convictions of defendants for Shaken Baby Syndrome (SBS). Deborah Tuerkheimer, a former prosecutor who once litigated SBS cases, had thought this handful of victories might catalyze a “massive institutional effort” to overturn similarly-flawed SBS convictions. Instead, Tuerkheimer, now a law professor at Northwestern, found a “criminal justice system ill-equipped to vet medical expertise, and even less capable of reversing direction.”
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Book Review: The Ploughmen
The Ploughmen is a novel about two men — a killer awaiting trial for a brutal murder and a young sheriff’s deputy. The deputy works the over-night shift and is assigned to sit outside the killer’s cell night after night in the hope of extracting information of additional crimes in the old man’s long career. What begins as small talk deepens into shared confidences and ends with an interesting twist in which the killer puts the deputy into an untenable position. Along with this twist comes one last confession of several murders.
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Defending Restitution Claims in Child Pornography Cases in a Post-Paroline World
While United States v. Paroline likely will result in victims bringing an increased number of restitution claims in federal child pornography prosecutions, in that case the U.S. Supreme Court reined in expectations for victims anticipating a windfall. Public defender David Bungard offers practice tips to help defense attorneys successfully negotiate or dispute the merits of a restitution claim.
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FBI Microscopic Hair Comparison Review
State-level microscopic hair comparison reviews are critical to assuring that the forensic evidence used to secure convictions is reliable. NACDL is available to provide assistance and support to attorneys who want to institute state microscopic hair comparison reviews. NACDL can provide information that can be critical in garnering support for state action.
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From the President: First Convictions Vacated as a Result of the Hair Microscopy Review Project Show
For decades, in the majority of cases involving microscopic hair comparison, FBI experts gave testimony that erroneously stated the significance of the hair comparison results. The fact that convictions have been vacated as a result of the Hair Microscopy Review Project shows the effectiveness of the joint effort among NACDL, the FBI, and the Innocence Project.
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Inside NACDL: One Last Opportunity to Be a Liberator - A Personal Plea From a Fellow Defense Lawyer
Nearly 36,000 inmates sought help in submitting clemency petitions through Clemency Project 2014. Volunteers are needed to complete the reviews and prepare the necessary papers for qualifying inmates.
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NACDL News: At the Supreme Court - A Swearing-In Ceremony for NACDL Members
Ten NACDL members and their guests gathered Jan. 19, 2016, in the nation’s capital at the U.S. Supreme Court for NACDL’s group admissions ceremony.
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NACDL News: Clemency Project 2014 Welcomes Commutation of 95 Federal Prison Sentences
In his first clemency grants since July, President Barack Obama commuted the sentences of 95 prisoners on Dec. 18, 27 of whom were applicants whose petitions were supported by Clemency Project 2014.
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NACDL News: Nation’s Criminal Defense Bar Praises New York Gov. Andrew M. Cuomo’s ‘Historic’ Categor
On Dec. 21, the Office of New York Gov. Andrew M. Cuomo officially announced a plan to pardon thousands of people who were convicted of a misdemeanor or a nonviolent felony at the age of 16 or 17, but who have had no other convictions since. The criteria that applicants must meet are available atwww.ny.gov/services/apply-clemency. By this action, thousands of individuals stand to have multiple, significant barriers to successful re-entry into the community removed.
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NACDL® 2016 Election Procedures
NACDL® 2016 Election Procedures.
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Public Defense
Many judges and prosecutors feel that when a defendant is “only facing a misdemeanor,” the defendant does not need an attorney for sentences of time served, a fine payment, or probation. Due to collateral consequences, however, uncounseled guilty pleas can have negative repercussions for the defendant in the future.
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Representing a Military Client in a DUI Case
Military service members — subject to both civilian and military courts — present special challenges to criminal defense attorneys. A service member arrested for an on-base DUI may be prosecuted under the Uniform Code of Military Justice by (1) administrative sanctions under an Article 15 nonjudicial punishment, (2) a combination of nonjudicial punishment and a nonmilitary federal prosecution, or (3) a court-martial. A service member arrested for DUI while not on his or her assigned base is subject to the local state laws and punishments as well as Article 15 nonjudicial punishment. Sometimes the discipline from the military in a DUI case can be used to lighten or eliminate the punishment from a civilian court.
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The Scope and Limitations of the Kovel Accountant
Accountants can assist in the delivery of legal advice, but defense attorneys must be alert to the potential dangers of using an accountant beyond the scope of the attorney-client privilege. Criminal tax defense attorney Martin Schainbaum discusses the need for a formal engagement letter when the attorney hires the accountant, and he discusses recent cases involving accountants and the attorney-client privilege.
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Time to Update the ‘ABA Ten Principles’ For the 21st Century
In 2002 the American Bar Association House of Delegates approved the ABA Ten Principles of a Public Defense Delivery System. Cited in court filings and mentioned by government officials, the Ten Principles have gone on to become the most influential policy statement about how indigent defense services should be provided. Professor Norman Lefstein believes that it is time to take a second look at the Ten Principles in order to (1) incorporate the most progressive thinking about how best to deliver indigent defense services and (2) revisit certain subjects in the current version that are neither sufficiently emphasized nor as clearly stated as they should be. Among other things, Professor Lefstein addresses inadequate funding, the need for persuasive data to convince appropriation authorities to fund indigent defense adequately, and procedures that enable defense programs to declare their unavailability to accept additional cases.