In recent decades, Congress has enacted scores of fundamentally flawed criminal statutes that lack adequate criminal intent protection for innocent actors. Among its findings, the report determined that of the 446 non-violent, non-drug-related criminal offenses proposed during the 109th Congress, 57 percent lacked an adequate guilty-mind requirement. The report also revealed that 23 of those inadequately protective offenses were enacted into law.

“Without Intent is a blueprint for principled reform,” explained Reimer. “We are here to urge every elected official to end the madness that has produced over 4,450 federal criminal statutes, and countless tens of thousands more arising from the unchecked power of regulatory authorities.” Given the volume of federal criminal laws, Meese, who is now chairman of Heritage’s Center for Legal and Judicial Studies, pointed out the folly of the expression “ignorance of the law is no excuse.”

Heralding the report as a “road map” and an “impressive and non-partisan document,” Chairman Scott was clear about the importance of the criminal intent requirement, explaining that “the mens rea requirement serves to protect society.” Ranking Member Gohmert expressed his unhappiness about learning of people who had been victimized by criminal laws lacking an adequate intent requirement, stating, “It hit me to the core of my conscience. These are all Kafka novels, except they are happening to real people.”

Gohmert was concerned that virtually anybody could unknowingly run afoul of federal law and be arrested. “These are people who never intended to be lawbreakers, good citizens who had their cars run off the road, their bodies slammed to the ground by federal agents, good citizens who never before even had a speeding ticket,” he explained.

As the press conference concluded, Reimer issued a challenge to Congress: “Law Day 2010 should mark the beginning of a return to the tradition of fairness and justice in the exercise of Congress’s most awesome power — the power to brand a person a criminal.”

The report is available at http://www.nacdl.org/withoutintent.

New York’s High Court Issues Landmark Right To Counsel Ruling

The New York Court of Appeals ruled May 6 in the case of Hurrell-Harring, et al. v. New York that indigent defendants denied their constitutional right to counsel do not have to be first convicted before seeking to vindicate that right. Before the Hurrell-Harring ruling, indigent defendants had been prevented from seeking redress of the denial of their right to counsel, which attached at arraignment, unless and until they were convicted. The court was clear, “Wrongful convictions … are not the only injustices that command our present concern. … The absence of representation at critical stages is capable of causing grave and irreparable injury to persons who will not be convicted.” Addressing the U.S. Supreme Court’s landmark 1963 decision guaranteeing the right to counsel for all, the court announced that “Gideon’s guarantee to the assistance of counsel does not turn upon a defendant’s guilt or innocence, and neither can the availability of a remedy for its denial.”

NACDL brought together a diverse group of bar associations representing 100,000 lawyers, and law centers and dozens of law professors from all of New York’s 15 law schools to submit an amicus curiae brief to the New York Court of Appeals supporting a challenge to the adequacy of the state’s indigent defense system. These groups and individuals united to address New York’s broken system for providing legal representation to poor defendants in criminal cases in the view that if the state’s system of indigent defense is constitutionally inadequate, a court must say so and fix it.

The joint amicus brief was written by lead counsel Susan J. Walsh, a partner at Moskowitz, Book & Walsh, LLP in New York City, NACDL Executive Director Norman L. Reimer, and NACDL Assistant Director of Public Affairs & Communications Ivan J. Dominguez.

“Today is a tremendous day for fairness and justice in New York,” declared Walsh, adding, “Every New Yorker should be proud that our highest court has affirmed that all New Yorkers accused of a crime, whether they are innocent or guilty, now have recourse in the courts if there is systemic denial of the basic constitutional right to counsel.” Pointing out that New York’s Court of Appeals is among the most respected courts in the United States, Walsh said, “This decision could have profound consequences for indigent reform efforts throughout the country.”

ACLU Lawsuit Against Michigan Moves Forward

In a landmark decision for the right of poor criminal defendants to seek justice in courts, on April 30 the Michigan Supreme Court unanimously issued an order allowing the ACLU lawsuit (Duncan v. State of Michigan) to move forward. NACDL filed an amicus with the aid of Mary Mullins of the Butzel Long law firm and several other national groups.

The ACLU sued Michigan on behalf of Christopher Duncan, claiming that Michigan failed in its constitutional duty to provide competent counsel for poor people faced with a loss of liberty when it delegated that duty to individual counties and did not provide funding or oversight to ensure constitutional adequacy. Though the suit encompasses three counties (Berrien, Genesee and Muskegon), the case has statewide implications because the alleged underfunding, inadequate public counsel training, lack of standards for performance, and overwhelming caseloads are widespread throughout Michigan. As stated by the Michigan Appellate Court:

“[w]e affirm, holding that defendants are not shielded by governmental immunity, that defendants are proper parties, that the trial court, not the court of claims, has jurisdiction, and that the trial court has jurisdiction and authority to order declaratory relief, prohibitory injunctive relief, and some level of mandatory injunctive relief, the full extent of which we need not presently define. We further hold that, on the basis of the pleadings and at this juncture in the lawsuit, plaintiffs have sufficiently alleged facts that, if true, establish standing, establish that the case is ripe for adjudication, and state claims upon which declaratory and injunctive relief can be awarded.”

Orr Testifies Before U.S. Sentencing Commission on Proposed Guidelines Amendments

NACDL President Cynthia Hujar Orr testified March 17 before the U.S. Sentencing Commission on various proposed amendments to the federal sentencing guidelines. Topics covered include the nature and implementation of amendments concerning offender characteristics relevant to downward departure determinations, alternatives to incarceration, factors considered in the calculation of a person’s criminal history score, as well as organizational guidelines regarding compliance and ethics programs, various conditions of organizational probation, and mitigation credit.

“NACDL’s positions on the proposed amendments currently before the U.S. Sentencing Commission reflect NACDL’s commitment to more individualized sentencing in federal court,” Orr explained after the hearing. “Federal law directs that the sentencing court ‘shall consider the nature and circumstances of the offense and the history and characteristics of the defendant,’” she added.

“These positions reflect our strong support for common sense approaches to sentencing in the U.S. that neither unnecessarily expend society’s limited resources nor unduly tie the hands of federal judges to craft an appropriate sentence.”

Selected NACDL positions:

• NACDL strongly encourages the Commission to delete the phrase “not ordinarily” from the wording of policy statements describing specific offender characteristics relevant to downward departure determination, thereby making all the factors set forth in 28 U.S.C. § 994(d) relevant when considering whether to depart from the guidelines.
• NACDL urges the Commission to remove all language suggesting that the following defendant characteristics either are not ordinarily relevant or simply not relevant at all when considering a departure: age; mental and emotional condition; physical condition including drug dependence; military, civic, charitable or public service or record of prior good works; and lack of guidance as a youth. NACDL recommends consideration of these factors when considering the merits of a sentencing departure.
• NACDL proposes that language be inserted into the guidelines to the effect that alternatives to imprisonment should be strongly considered in any and all cases where they may be more cost effective, but also more effective in meeting the goals of rehabilitation, not just cases involving drug offenses.
• NACDL does not support the proposed carve-out from offenses eligible for non-incarceration sentences for public corruption, tax, and other white collar offenses. It is NACDL’s position that there is no particular category of offense that should be per se excluded from consideration for non-incarceration sentences.
• NACDL believes that the current guideline regarding mitigation for effective compliance and ethics programs is sufficient and allows an organization the flexibility to respond appropriately to the many varieties of possible criminal conduct that may occur. Immediate restitution, self-reporting, and other external actions based on possible criminal violations deprive organizations of legally viable defenses and expose organizations to a great likelihood of crushing civil liability. Such requirements are fundamentally unfair and may be financially harmful to an organization and its shareholders.
• NACDL objects to the premise that the use of “independent monitors” is presumptively necessary in most or all cases of organizational probation.
• NACDL supports the principle that mitigation credit in the context of the organizational guidelines should be an option even when high-level personnel are involved in criminal conduct, but believes the proposed requirements for qualifying for the exception are far too onerous.
• NACDL recommends the insertion of language that would direct courts to consider a variety of factors concerning the collateral consequences of a defendant’s non-citizen status where the non-citizen faces deportation after serving his time.

More Ways to Skin The Cat: Lawyers Learn How To Litigate Actual Innocence Without DNA Evidence

Nearly 200 attorneys from around the nation participated in an intensive one-day post-conviction program organized by NACDL in collaboration with the Innocence Network and supported by a grant from the Bureau of Justice Assistance. Litigating Non-DNA Post-Conviction Innocence Cases was held on April 15 in Atlanta immediately preceding the Innocence Network’s annual conference at the same location. The program provided lawyers who handle post-conviction innocence claims with the training necessary to challenge the reliability of a variety of forensic evidence often encountered in such cases.

The program featured cutting-edge techniques for investigating, litigating, and winning post-conviction innocence claims in cases involving non-DNA forensic evidence. The individual sessions focused on many of the forensic fields identified as problematic in the National Academy of Sciences’ recent report. An outstanding faculty of experienced defense attorneys and experts provided instruction on a wide spectrum of topics including friction ridge analysis, forensic pathology, shaken baby syndrome, arson and explosives, and canine sniff evidence. The program was free of charge to approved participants.

Robinson, Parker Honored at Midwinter Conference

By Cynthia Hujar Orr

NACDL presented awards Feb. 27 to the Honorable Mary Lou Robinson and labor lawyer George P. Parker Jr. at its Midwinter Board Meeting in Austin, Texas.

In 1992, a police officer in Lubbock, Texas, provided truthful and damning testimony about the medical examiner in a capital murder trial. As an officer, he had become aware that a medical examiner, Ralph Erdman, provided testimony that always seemed to match the prosecution theory without regard to its merit. As thanks for exposing Erdman, the officer was indicted. So were the defense lawyer, the highly respected Millard Farmer, and the officer’s colleague. Attorneys across the country volunteered to represent the police and Farmer and brought a civil RICO lawsuit in federal court against the Randall and Potter County District Attorneys and others who utilized Erdman for their own purposes. U.S. District Judge Mary Lou Robinson, in the Amarillo Division of the Northern District of Texas, heard the matter and, after a seven-day hearing, granted a very rare preliminary injunction followed by a permanent injunction of the state criminal prosecutions. Judge Robinson ruled: “Plaintiffs have offered substantial evidence that the prosecutions were brought in bad faith and for the purposes of retaliation against the plaintiffs for the exercise of their constitutional rights.” In recognition of her judicial independence, integrity and courage, Judge Robinson received NACDL’s Judicial Recognition Award.