We just returned from San Francisco and the American Bar Association annual meeting. We participated in the two mornings of the Criminal Justice Section Council meetings. NACDL has a voting seat on the Council, which we have occupied for the past two years, since Albert Krieger of Miami, who had it for the five previous years, moved up to be the Chair-Elect and then Chair of the Section. Albert is a past president of NACDL and one of our favorite lawyers. [Here's a picture of the two of us after we won awards at an NACDL meeting several years ago.]

The Criminal Justice Section is composed of prosecutors, defense lawyers and judges. As you can imagine, we don't always see eye to eye. Among other duties, the Section sponsors and co-sponsors resolutions that then go to the ABA House of Delegates. If passed, the resolutions become ABA policy.

A big issue this year was a resolution by one of the corporate sections to amend the ABA's Model Rules of Conduct for lawyers in a way that would allow lawyers to reveal client confidences in a greater number of situations. The requested changes were in response to the Enron and other corporate scandals in recent years, as well as changes brought about by the Sabranes-Oxley Act.

If the changes are approved, the code would permit, but not compel, a lawyer to disclose client confidences to prevent or to mitigate "injury to the financial interests or property of another," when the lawyer's services were used to further a client's crime. In 2001, the delegates approved a narrower change, permitting a lawyer to breach client confidentiality "to prevent reasonably certain death or substantial bodily harm," but even that change was controversial.

As one corporate lawyer quoted in the Times says,

....The confidentiality privilege belongs to a client... and only the client can waive it. Besides, it is rarely a black and white question whether a client's plan is illegal, and it is not the lawyer's job to make that determination.

We didn't like the resolution and voted against co-sponsoring it. The nays carried the day. That doesn't mean it won't pass the House of Delegates, only that in its present form, the Criminal Justice Section delegates to the House of Delegates will vote against it when it comes up there for consideration.

Former Colorado Senator Gary Hart was the featured lunchtime speaker Friday at the annual meeting of the National Association of Criminal Defense Lawyers ( NACDL) in Denver. He was introduced by his former campaign manager, criminal defense lawyer Hal Haddon (currently most widely known as Kobe Bryant's defense attorney.) We had the pleasure of sitting next to them during lunch.

When it came time to speak to the assembled group of 450 lawyers, among other things, Sen. Hart spoke about the terrorist threat. As he has said before, he believes the question of the next attack is not one of "if" but "when." He believes it is likely to be one involving biological or chemical weapons, most likely something like smallpox, in a place like Denver, Kansas City or Dallas--in other words, in the heartland and not necessarily in a major city. He also spoke of the need to to balance security and the threat to civil liberties. He said that under Bush, we have placed all decison making authority in the civil liberties arena in the hands of the one man who most shouldn't have it--Attorney General John Ashcroft. As you can imagine, his comment was met by thunderous applause.

As regular readers of this site know, we were an early Hart supporter when he considered running for President earlier this year. We hope still that if the Democrats win in 2004, Hart will be appointed Secretary of State. We asked him some questions during lunch, prior to his speech, such as whether he had a preference for any one of the current candidates. He does not.

While we will support Howard Dean if he gets the nomination, some of Dean's positions on criminal justice issues, particularly the death penalty, concern us. While we now know Dean and some of the other candidates' positions on the death penalty, today we realized we had never asked Sen. Hart directly for his position on the death penalty. So we asked him while sitting at lunch today, again, prior to his speech. His response was: "I'm against it. I've always been against it. I voted against it."

That makes us even sorrier he's not running.

It may be only July, but The Smoking Gun has already awarded the Legal Document of the Year Award...to Eric Vanatta, the deputy public defender in Fort Collins,Colorado who wrote it. It's great, go read it. Thanks to Kerim at Keywords for the link.

The Sunday New York Times Magazine explores false memories and the controversy over the work of Susan Clancy, formerly with the Harvard Psychology Department. We agree with Clancy:

As the subject tries to remember what happened, ''source'' errors creep in. ''You think you're recovering your own memory, when in fact it's something you pulled out of a movie,'' Clancy said. ''Memory's tendency to be reconstructive, combined with the desire to believe, combined with a culturally available script, leads to a false memory. The content of that memory is dictated by the society you live in.''

The current controversy over Clancy involves her use of people who claimed to be abducted by space aliens as subjects for her tests. We'd refer you to the work of memory guru and Distinguished Professor Elizabeth Loftus on the topic and her excellent book, The Myth of Repressed Memory, which is available in paperback.

Popular Science also explored the phenonemon yesterday:

Our memories are, to some degree, like a final-cut videotape: Research confirms that each of us continually edits and splices recollections, replacing one "picture" with another, sometimes with a little outside assistance. "Memory is a creative event, born anew every day," says Elizabeth Loftus, a University of California, Irvine, psychologist who is a leading expert on the malleability of eyewitness testimony. "You fill in the holes every time you reconstruct an event in your own mind."

A decade of intensive research has taught Loftus and her colleagues how easy it is to plant false memories. In experiments, they've demonstrated that few people, if any, can reliably distinguish between memories of something they've been shown and something they've been asked to imagine.

Here is a presentation in pdf. format that explains the Patriot Act's changes to the money laundering and forfeiture laws. It was published on the In Defense of Freedom list-serv and forwarded to us. Lawyers and journalists should find it especially helpful.

The Seattle Times writes this profile of criminal defense lawyer Jeffery Robinson , who has made his name protecting the rights of high-profile suspects.

Many of us defense lawyers are "true believers." Perhaps reading this article, you will see why, to us, what we do is neither a job, nor just a profession, but a calling. Kudos to Jeffrey for having his home-town paper acknowledge his beliefs and his accomplishments.

Scriverner's Error reports that the 7th Circuit Court of Appeals has upheld the denial of a law license to White Supremacist Matthew Hale. The Court found:

Matthew Hale is a public advocate of white supremacy and the leader of an organization (formerly called the World Church of the Creator [note 1]) dedicated to racism and anti-Semitism. He comes before us today because he seeks to be admitted to practice law in the state of Illinois. The Illinois State Bar [sic] requires applicants not only to demonstrate proficiency in the law on a written bar examination, but also to pass a character and fitness exam. Hale succeeded in satisfying the first of these hurdles, but not the second. His defeat came at the hands of the Committee on Character and Fitness (Committee) appointed by the Illinois Supreme Court, which found him unfit to practice law.

The Innocence Project is seeking a Finance/Administrator Director.

The Innocence Project, Inc. ("the Project") , seeks a Director of Finance and Administration to help build and manage its newly-formed 501©3 nonprofit entity. Founded in 1992 by Professor Barry Scheck and civil rights lawyer Peter J. Neufeld as a legal clinic at the Benjamin N. Cardozo School of Law/Yeshiva University, the Project represents prisoners nationwide for whom post-conviction DNA testing can prove innocence, and also works to redress the causes of wrongful convictions throughout the criminal justice system.

....In the coming months, the Project will retain its affiliation with the University while becoming legally and financially autonomous. The Project seeks a talented and experienced Director of Finance and Administration to create a financial and administrative infrastructure for the new nonprofit entity, and to manage the Project's finances and operations in the coming years. Salary mid-to-high five figures, depending on experience; full benefits. Experience with nonprofit fiscal management and administration essential.

For criminal defense lawyers and wannabes....Make your plans now, this one will be great:

With advances in science and technology occurring daily, it has never been more critical for defense lawyers to learn how science can help or hinder their cases. This innovative seminar will present the most cutting-edge techniques available to defend every kind of criminal case.

Among the areas highlighted are evidence collection, lab protocols, selecting and cross-examining experts, the use of Daubert to challenge "junk" and "novel" sciences, and attacking commonly accepted "sciences" that have recently begun to fall out of favor. You will receive an insider's view of how the expert prepares for and against these challenges and learn the fundamentals of a broad array of sciences confronted by the defense lawyer in the trenches -- including DNA, ballistics, arson investigations, time of death, and forensic pathology. NACDL has brought together the most nationally renowned scientific experts in their fields, coupled with the best lawyers in America for this ground-breaking seminar. Don't miss it!

The Faculty:

Larry Pozner-Voir Dire: Science & Technologies; Jeralyn Merritt-Attacking Eyewitness Evidence: Effective Use of the Psychological Expert; Dr. Henry C. Lee -Physical Evidence Found on the Human Body;Barry Scheck -Proving Innocence Through Forensics: With and Without DNA; David S. Rudolph -Zen and the Art of Cross-Examining Experts (or How I Became an Idiot Savant); David Wymore-Derailing the Physical Evidence Railroad; Norm Mueller- Ethics and Experts: Avoiding Traps for the Unwary;Rick Williamson -Smoke and Mirrors: Dealing with Expert Testimony in Arson Cases; Jim P. Cooney, III -Time of Death, Entomology, and the Body Farm in Tennessee; Dr. Suzanne Pinto-Bernhard-Sex Offenders: What You Need to Know About What Your Client is Getting Into; Drew Findling-You’re My Homicide Detective and I Love You, Man!; and David Lewis -Forensics Failure: The Chief Justice Gives Us a Defense. (Speakers & topics are subject to change)

Special Events:

Luncheon Address—Former U.S. Senator Gary Hart will be the keynote speaker for our luncheon, Friday, August 1, 2003 at the Adam’s Mark Hotel.

Shooting Range—Join us for a rare opportunity to visit a shooting range and learn first-hand about firearms, ballistic evidence, and how to utilize your experience to build on a winning defense for your client. (Additional fees may apply depending on the amount of your activity)

We are proud to announce that bloggers are now being included in at least one Journalism class' final exam, and we are included: [ed: at the request of the journalism professor who saw this post this morning, we are deleting the course name and website]

Visit each of the following online commentaries, and list what the main proposition of the argument being made. Then state whether it is a proposition of fact, value, or policy. It may appear that there are several different propositions, but I am looking for the main, over-arching proposition. DEFEND your decision as to why it is which type (tell me why it is a proposition of fact, etc.).

1.) Who Pays These Idiots? (Matt Yglesias)

2.) Iowa Moves to Equalize Crack and Powder Cocaine Sentences (TalkLeft)

3.) lynch law (tacitus)

Anyone think they have the correct answer?

William Scott Stewart's article, "How to Beat the Lie Detector" (Esquire magazine, November 1941) may be the earliest ever published on polygraph countermeasures. It also documents waste, fraud, and abuse associated with the use of the lie detector. It's amazing how little some things have changed in sixty years. (via Antipolygraph.org)

The Third Circuit has issued an opinion saying that attorneys can keep a client's fee, even if the money was illegally obtained by the client, so long as the attorney has a good faith reason to believe the fees were legal. The case arose in the context of a bankruptcy case. The court ruled,

The issue is whether the facts known to the firms and the reasonable inference to be drawn from those facts would affirmatively suggest to a reasonable person in their position that they were receiving assets of the estate. If not, there would be no duty to investigate."