I invite you all to check out John Wesley Hall, Jr.'s Law of Criminal Defense. This website is a research aid to Professional Responsibility in Criminal Defense Practice which will be published by Thomson-West approximately June 20, 2005. It is the third edition of Professional Responsibility of the Criminal Defense Lawyer (2d ed. 1996).
Here is the Position Paper of the American Bar Association Regarding Section 12 of HR 1528, which minces no words in tearing down the misleading statements put out by Representative Sensenbrenner's office. Not only does it challenge the misleading nature of the statements, but it also points out that the result will be much litigation, and a likely finding down the road that this Booker-fix violates Booker. Hat tip to Sentencing Law and Policy in this post which also contains more links to additional voices rising in opposition to this unwarranted and ill-conceived quick-fix.
H.R. 1528, a drug sentencing bill entitled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005" whose Section 12 has been called a Booker-fix, was considered in the House Judiciary Committee without anyone being called to testify as to the same. You can read more about H.R. 1528 at Sentencing Law and Policy's excellent coverage and commentary, at the following posts:
The USSC letter on H.R. 1528 is a must read, and one can only applaud the USSC for speaking out clearly about this crazy piece of legislation. I have no idea how far this bill will go, but NACDL, FAMM, and just about everyone with any interest in federal sentencing is keeping a close watch on it.
If you ever wondered why Texas has such a bad reputation for being the place where the largest number of persons are sentenced to death, check out what Injustice Anywhere - a blog recently started by a Texas Public Defender - has to say about this:
Many people are surprised to learn that Texas does not have a sentence of life without parole. Capital murderers who are not sentenced to death are eligible for parole in 40 years. For a state with a reputation for being so tough on crime, this seems out of character. But, in fact, the biggest opponents of a proposed life without parole option in Texas are not us bleeding-heart, liberal defense attorneys. Nope. It's the big-city DAs and victims' rights groups. Why? Because they worry (probably rightly) that fewer people would get the death penalty if the jury had the option of giving life without parole. It's much easier to convince a jury to take someone's life if you can scare them into believing the defendant might one day be free to kill again. A recent bill to institute life wtihout parole was shot down by a procedural hurdle in the state senate last week. This, despite the fact that 78% of Texans support having life without parole. I challenge lawmakers to finally stand up to DAs and victims' rights groups and enact some common-sense legislation supported by a super-majority of its citizens. And if it means fewer death sentences handed down, it won't surprise you that I'm all for that, too.
I can only imagine that the idea of having an alternative of life without parole never entered George Bush's radar screen when he was governor and he was honing his ideas on promoting "a culture of life." Or perhaps it did, and was considered to be not politically advantageous.
We welcome Injustice Anywhere to the blogosphere.
Recently I found myself assisting a fellow criminal defense lawyer who is going to trial in his first case before the U.S. District Court in San Juan. Not that I am the ideal person to seek help from as far as trial preparation, for there are many attorneys who are more experienced than yours truly. But there is one thing that is ideal about asking me for help, and that is that I will always say yes to any fellow attorney who requests my assistance.
In helping this fellow attorney I soon realized that some of the biggest problems had little to do with actual knowledge of the law, but with uncertainties about the way to do things. Even how to organize all his case materials for trial so that he would not be looking for them like trying to find a needle in a haystack. Each attorney has different ways of doing things, and what works for some may not work for others. To the extent we share these different ways, fellow attorneys get ideas and adapt to what they feel more comfortable doing. As a simple example, as he was talking to me and showing me an FBI FD 302 of a debriefing of the government's star witness, I made some comments and he was going to write them on the 302. I stopped him and asked him if he had made clean copies of that and other documents he intended to use during trial. I also reminded him he should make a copy for the Court, for the witness (if necessary) as well as for opposing counsel (in this case the government had the original 302). He then started thinking of the trial itself, including the mechanics of marking and presenting evidence. I explained to him how, for example, he would not want that particular 302 marked as an exhibit or presented as evidence, but only for identification, etc. I could see him smiling, and then he told me, "I don't know how to thank you." "You just have," I told him. This fellow attorney was very clear on the substantive law, knew the facts of the case well. We met for another 3 hours that day.
I sat through more than one trial before ever trying a criminal case. I also played second chair more than once to outstanding defense attorneys in San Juan. There are so many things that more experienced attorneys just do by second nature that do not even occur to less experienced attorneys.
At PRACDL's last annual assembly, there was a general agreement that PRACDL would become involved in mentoring and assisting the less experienced PRACDL members. Seminars can be given, but there is nothing like a one on one experience with a fellow attorney. I can assure you I got more out of my session with this attorney than he did from me. It also showed to me that he was eager to learn and that is one of the most important things any good lawyer has: a hunger for knowledge.
As a result, I had the idea of creating another PRACDL blog dealing with matters of trial preparation. We are today announcing TrialPrep - a PRACDL blog dedicated to all that criminal defense lawyers do from initial interviews through the end of a case at the trial court level. There's not much there yet, but I hope to start posting much more soon. For any readers of this blog who have any suggestions, I would appreciate your sending them to PRACDL at the email link on the top left sidebar. Let me know whether you want to be acknowledged or not.
You can read Peter Goldberger's take on Booker/Fanfan in this post at White Collar Crime Prof Blog. Peter is an NACDL member and an outstanding appellate attorney and, he was on the brief in NACDL's amicus curiae merits brief in Booker & Fanfan. Also read the comments to the post, some written by Peter, and one written by T. Chris Kelly, counsel for Booker before the Supreme Court.
The Confrontation Blog is devoted to Crawford v. Washington and the Confrontation Clause. Thanks to Crime & Federalism for directing us there.
The blog is penned by Professor Richard D. Friedman, of the University of Michigan Law School, and is described by him as "devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary."
It also appears that Professor Friedman will answer readers' Crawford concerns. I have read most of the posts and find them very interesting.
According to David Bernstein at The Volokh Conspiracy Professor Friedman "is the leading authority on the Confrontation Clause, and played a key role as counsel in Crawford."
CrimProf Blog reports here on a column in the December issue of The Champion by NACDL President Barry Scheck on changes on the horizon that will go a long way towards avoiding mistaken eyewitness identifications.
"Soon, the single greatest cause of the conviction of the innocent -- mistaken eyewitness identification -- will be significantly redressed by a series of historic reforms: We will see photo arrays and lineups conducted by a blinded examiner (the person running the procedure doesn't know the identity of the suspect); proper admonitions to witnesses that the real perpetrator may not be present; proper selection of fillers so they meet the description of the perpetrator, not the suspect; confidence statements from witnesses at the time of identification in their own words; and sequential presentation at identification procedures with an adequate number of fillers (at least five). Based on strong scientific proof that these reforms substantially reduce error and increase the capacity of police to find the real assailant, courts, legislatures, and prosecutors will adopt them because it's just good law enforcement. But they will also act because there is a constitutional imperative at work: The heart of the Supreme Court's due process jurisprudence in this area is to prohibit systemic practices that unnecessarily increase error.
These reforms will move on three different tracks simultaneously. On one track, state and federal courts will reverse and revise Manson v. Braithwaite, instructing juries that failure to follow procedures that demonstrably reduce error must be held against the prosecution. Similarly, courts at pre-trial hearings will consider expert testimony and assess the taint from improper suggestiveness in light of new scientific evidence. On a second track, where trains are already in motion, police and prosecutors will voluntarily implement these reforms, following the lead of New Jersey, North Carolina, Minneapolis, Boston, Santa Clara (Calif.), and Northhampton (Mass.). And finally, state legislatures and Congress will follow the lead of Illinois, as well as suggestions from the American Bar Association, and enact bills funding pilot projects, research, and training."
This is all very good news indeed.
Reuters reports that 'Blog' Tops Dictionary's Words of the Year. "A four-letter term that came to symbolize the difference between old and new media during this year's presidential campaign tops U.S. dictionary publisher Merriam-Webster's list of the 10 words of the year."
Merriam-Webster Inc. said on Tuesday that blog, defined as "a Web site that contains an online personal journal with reflections, comments and often hyperlinks," was one of the most looked-up words on its Internet sites this year.
Blog will be a new entry in the 2005 version of the Merriam-Webster Collegiate Dictionary, Eleventh Edition. The complete list of words of the year is available at:
http://www.merriam-webster.com/info/04words.htm
We welcome the new White Collar Crime Prof Blog, at which -starting today- distinguished law Professors Ellen Podgor and Peter Henning "will make daily postings on issues related to White Collar Crime. The Blog will discuss current investigations and indictments, criminal and civil enforcement cases, and issues related to the scope of the criminal law."
We have added a link to our sidebar, as we think this will be a very useful blog.
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