The 107th Congress adjourned without taking any action on the amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, approved by the Supreme Court on April 29, 2002. Accordingly, the following amendments to the rules will take effect on December 1, 2002, including:

Changes to the Federal Rules will be effective on December 1, 2002. The following rules have been amended:

Appellate Rules: 1(b),4(a)(1)©,4(a)(5)(A)(ii),4(a)(7), 4(b)(5),5©,21(d),24(a),25©,25(d),26©, 36(b),45©,26(a)(2),4(a)(4)(A)(vi),27(a)(3)(A), 27(a)(4), 41(b), 26.1,27(d)(1)(B), 32(a)(2),32©(2), 28(j),31(b),32(d),32(a)(7)©,44

Bankruptcy Rules: 1004, 1004.1, 2004, 2015, 4004, 9014, 9027

Civil Rules: 7.1, 54, 58, 81(a)(2), Admiralty Rule C

Criminal Rules: Comprehensive Style Revisions 1-60 Substantive Amendments to 5, 5.1, 10, 12.2 12.4, 26, 30, 35, 43 Amendments to Implement USA Patriot Act of 2001 - 6 and 41

You can read the full text of them here.

We take great umbrage at this article in the Centre Daily Times, TV prosecutors now have the upper hand on defense attorneys.

On the one hand, it accurately points out a reality that criminal defense lawyers have been up against for sometime: that people are more apt to believe in guilty until proven innocent than the other way around, and that in the media, guilt sells while stories about innocence don't get much play.

But we have to take uber-producer Dick Wolf to task for his comments. Wolf is the producer of Law & Order and innumerable other television series that glorify cops and prosecutors and always feature a guilty defendant.

Now Mr. Wolf is a very personable man and obviously a tremendous success as a television executive. But the following comments are totally one-sided and really stretch the truth--and cause damage to the public's perception of our system of justice--and next time we run into him, we'll tell him so ourselves.

"Any of the people you see" working as assistant DAs in "Crime & Punishment" "could clean out their desks on a Friday afternoon and double or triple their salary on Monday morning" by going to work in a law firm, Wolf said recently.

"They really do think they're doing God's work."

"Moreover, he said...I don't hold criminal defense attorneys in very high regard, based on what they do for a living, which is basically getting guilty people off."

Now come on, Mr. Wolf. You don't think public defenders believe they're doing God's work? You don't think they couldn't get a job in a corporate firm earning twice or three times as much?

The lawyers who dedicate themselves to freeing the innocent, that's not God's work to them?

The lawyers who make a career of trying to save a life in a death penalty trial, while underfunded, understaffed and underpaid, you don't think they believe they're doing God's work?

Prosecutors and Public Defenders have a few things in common: Both groups have chosen public service, and in so doing, they have sacrificed more financially rewarding opportunities to become overworked and often under-appreciated public servants. Prosecutors have no leg up on defenders in terms of doing God's work.

Trends come and go. In the 80's, LA Law and defense lawyers were on top. This past decade, it's been all about guilt and cops and DA's. Just wait, a few more years of Ashcroft, the Patriot Act, secret detentions and programs like TIPS and Total Information Awareness, and the tables will turn again.

One other thing. The majority of prosecutors don't stay in it for the length of their careers. They leave and become....private criminal defense lawyers. Look into the background of the lawyers for the Enron and WorldCom and other high-level corporate crime defendants, and more often than not they will have "former U.S. Attorney" in their bios. What happened to their belief in "God's work?" But how many criminal defense lawyers can you name who left the practice to become prosecutors? Which stay truer to their beliefs? Or put another way, whose beliefs were truer in the first place?

[edited to correct spelling of Mr. Wolf's name. It is Dick Wolf, not Dick Wolfe as we originally posted.]

More technology is about to be employed against foreign visitors to the U.S.

"In a high-tech strategy against terrorists, the government will soon begin comparing foreign travelers with digitized photographs and will consider plans to encode their travel documents with personal data that can be read electronically."

"Starting this month, the State Department will relay digital images of foreign travelers to U.S. ports of entry. For the first time, immigration officials will be assured that they are comparing the travelers who stand before them to authentic pictures taken when they applied to visit the United States."

"In addition, Congress may approve legislation to mandate unique, personal identifiers -- such as digitized fingerprints -- on visas that the State Department grants to foreign nationals who wish to travel in this country, as well as on the passports of 29 nations. The bill passed the House on Dec. 19 and enjoys broad support in the Senate. "

Get involved. Oppose the Total Information Awareness Program. (TIA)

The ACLU explains why you should Stop the Government Plan to Mine our Privacy and provides you with a free fax to send to President Bush asking that he reject this latest assault on our privacy rights.

Here are the ACLU's reasons why TIA should be renounced:

Too often we forget that many people are languishing in jails for crimes they did not commit whose wrongful conviction cannot be detected by DNA testing. The New York Times today reports on such a case:J udging a Mother for a Crime by Someone Else

"Tabitha Pollock was sleeping when her boyfriend killed her 3-year-old daughter. For failing to anticipate that crime, Ms. Pollock was convicted of first-degree murder and has served 7 years of her 36-year sentence."

"Last month, the Illinois Supreme Court overturned Ms. Pollock's conviction, saying the prosecution's theory -- that she should have known that her boyfriend, Scott English, who is serving a life sentence, was going to murder her child -- has no basis in the law. Barring something unusual, she will be released from the prison here in the next few weeks."

"Ms. Pollock's first appellate lawyer gave up her case as hopeless in 1999 and declined to appeal it to the State Supreme Court. Ms. Pollock will go free only because "a student plucked her letter from among the 17,000 that the law school clinic at Northwestern University receives every year, and the clinic persuaded the Supreme Court to hear an appeal filed after the deadline had passed. The court reversed the conviction outright rather than order a new trial."

"Illinois and many other states accept the notion that parents may be held legally accountable for the deaths of their children when they have witnessed or otherwise know of grave threats to their safety. Ms. Pollock's case differed in that she was held responsible on what lawyers call a negligence theory — that she should have known of the potential danger, even if she did not. A negligence standard is seldom used in the criminal law. "

Ms. Pollack's conviction is especially egregious considering that at trial, the prosecution produced no witness who had suspected her boyfriend of prior abuse. "How could I have known he would murder my precious baby girl?" Ms. Pollock wrote. "I did not know, yet I received 36 years in prison for not being a mind reader."

Innocence Project Clinics have been formed at law schools in several states in recent years. It is important that these new clinics accept not only cases where factual innocence can be proven by DNA testing, but also cases where the conviction was wrongfully obtained, such as through a false confession, incompetent counsel, police or prosecutorial misconduct, or the lone word of a jailhouse informant.

We couldn't help thinking as we read of Ms. Pollack, how many more prisoners like her are out there, serving double-digit or life sentences, who have no lawyer or law or journalism student to raise these claims?

Dec 3rd Rally -- Exploiting the Sniper Tragedy

Don't let politicians turn tragedy into a blank check to execute!

Tuesday, December 3rd, 7pm
George Washington University's Marvin Center -- 3rd Floor Amphitheatre, at 21st and H St. NW, near Foggy Bottom Metro (Washington, DC)

Speakers:

Shujaa Graham, former death row inmate
Johnny Barnes, Executive Director ACLU, National Capital Area
Robin Maher, Director American Bar Assoc., Death Penalty Representation Project***
Jack Payden-Travers, Director Virginians for Alternatives to the Death Penalty
Mike Stark, Campaign to End the Death Penalty

Why: As the region searches for answers to the horrible sniper shootings, politicians like Attorney General John Ashcroft and Maryland Governor-elect Bob Ehrlich are eager to use this tragedy to sell and expand the death penalty. Ashcroft quickly moved sniper suspects, Gulf War veteran John Muhammad and John Lee Malvo, to Virginia to ensure their quick execution; Ehrlich pledged to overturn Maryland's moratorium on executions and to lower the eligible age for the death penalty to 17.

Attend the indoor rally and show Ashcroft and Ehrlich that you won't let them turn back the clock!

Sponsored by the Campaign to End the Death Penalty

For more information email them .

*** The American Bar Association does not oppose the death penalty. It does support a moratorium and opposes the execution of juveniles.

A brouhaha is developing in Texas over a trial judge's acquiesence to a request by PBS and lawyers for a 17 year old charged with capital murder to allow the filming of the actual jury deliberations as part of a documentary for Frontline on the murder trial.

As jury selection was underway today, the Texas Court of Appeals, acting upon the request of the prosecution, issued an order staying the trial and directing the trial judge to explain his ruling by next week in writing.

The defense lawyers want the filming. They want to show the reality of trying a juvenile for murder which includes the state's arguing for the death penalty for a 17 year old and the jury's grappling with both the guilt decision, and potentially, the life or death decision. The Prosecutors oppose it.

We are as much of an opponent of the death penalty as anyone, and we rarely agree with prosecutors, but this is a tough one. There is something just too unseemly about it, too Gladiator-like, too reminiscent of the days of ancient Rome when people went to the colliseum to watch so-called sporting events in which one contestant was brutally killed. What's next after broadcasting deliberations into into our living rooms? Football stadiums where people cheer as the final needle is administered?

However, we acknowledge that some death penalty opponents think that by televising executions and confronting citizens with the reality of their brutality and inhumanity (yes even lethal injection is a brutal process, it's not like getting an iv before surgery), more people will come to oppose them.

The fact that it's Frontline makes a difference to us, but not enough to change our mind. Frontline is an exceptional documentary series on PBS that frequently deals with injustices in the criminal justice system. Their programs Snitch and What Jennifer Saw (on eyewitness misidentification) and A Case for Innocence were simply masterful (and are re-run from time to time.)

Rejecting the idea of televising jury deliberations isn't such a big leap for us because we have always been opposed to cameras in the courtroom unless the defendant and his lawyers want it. It should be the defendant's choice--he has the constitutional right to a fair and impartial trial --although, that being said, we can't imagine wanting a televised trial for one of our clients. We think cameras that broadcast trials into living rooms affect the participants. Everyone plays to them a little bit, no matter how much they may deny it - from the Judge, to the lawyers to the witnesses.

We were surprised to read, in the same article, that Henry Schleiff, the CEO of Court TV, opposes the filming of deliberations and said Court TV has never requested to film them. Another opposing view came from Richard Dieter, who heads up the excellent anti-death penalty organization, Death Penalty Information Center.

We were a little curious about the Texas Judge who agreed to it.

"Poe, a former prosecutor who was appointed to the bench in 1981, is well known in Houston. He has forced convicts to carry signs outside the courthouse proclaiming their crime and earlier this year said a teacher convicted of having sex with a student was ``a bigger threat to our culture and our students than Osama bin Laden and his cave dwellers.''

Not our kind of Judge. But, even so, but we have to vote against Frontline on this one. Jury deliberations have always been sacrosanct and secret. We believe the secrecy of deliberations encourages people to speak freely and share their views (even as awful as some of them might be) and return a verdict that is more likely to be free from external influences. We like juries. We don't want them to be afraid to vote "not guilty" in a case involving an ugly crime but the wrong perpertrator because they fear being ostracized by the community afterwards.

Update: The New York Times takes the same position we do in an editorial Wednesday, The 13th Juror.

The 11th Circuit Court of Appeals has reversed the convictions in the 1998 church arson cases.

"The 11th U.S. Circuit Court of Appeals has reversed 2-1 the arson convictions of self-described "Luciferian" Jay Scott Ballinger, who set fire to five North Georgia churches during the 1998 Christmas and New Year's holidays. The majority concluded that state prosecutors should have handled the cases because the fires were not sufficiently connected to interstate commerce to trigger a 1996 federal church arson statute. "

A few bloggers (see Bo Cowgill, for example, who graciously has posted a clarifying addendum) thought our post on who's to blame for allowing our civil liberties to be infringed upon labeled Bill Clinton as an enemy of the Consitution. Not so.

Just to set the record straight, we admire Clinton. We voted for him, we wish he were president now and we'd vote for him again. What we criticized were his and his administration's policies on civil liberties, privacy and criminal justice--admittedly, areas of great importance to us.

We didn't say and we don't believe that Clinton was "an enemy of the Constitution. " We said he was too centrist and not liberal enough for us on privacy issues like wiretapping and on criminal justice issues. But we also pointed out that we admired his accomplishments in other areas.

We were striving to make a point with our criticism--the point being that it's the centrists we need to watch out for when it comes time for democrats to nominate a presidential candidate for 2004-- they are the real danger. Clinton was centrist in these areas, as is Bush (if he were a true conservative, he'd support privacy rights.) The left (among them the ACLU and many criminal defense lawyers) and the libertarians and the right have more respect for civil liberties and privacy rights than do centrists.

The right continues to lack credibility in areas other than privacy issues. For example, they are simply medieval in their views on crime--they always want to punish longer and lock more people up while refusing to address the root causes of crime or make an attempt to reduce recidivism through rehabilitation and treatment. With Clinton, drug offenders got overly harsh ten year mandatory minimum sentences, but if it were up to Bob Barr or Newt, they'd all be getting life--if not death.

We think the Democratic party needs to return to its true liberal roots of decades ago and the values our parents and grandparents embraced. Like individual freedom and privacy, fair treatment of immigrants, meting out just but not excessive sentences while stressing rehabilitation--and providing every child with an equal opportunity to succeed.

Update: Kip Manley over at Long Story, Short Pier goes further with the left/right distinction and asks, Would people support the same powers in the hands of a Democratic administration?

Arkansan Asa Hutchinson, who now heads the Drug Enforcement Administration, will take charge of immigration and border security -- and a workforce of one hundred thousand -- in the new Department of Homeland Security.

The Arkansas Democrat-Gazette promises full details Tuesday.

From an editorial Monday in the Gainesville Times, We should preserve freedom from terror, not sacrifice it more :

"The government should tread cautiously around the Constitution and civil liberties. They are the underpinnings of an unencumbered and enlightened society. When talk turns to obtaining evidence surreptitiously or by circumventing search warrants, the public should respond with skepticism and suspicion. The war against terror is, after all, supposed to be about defending freedom, not surrendering it. "

"Ashcroft, we believe, has been far too zealous in pursuit of remedies that infringe on civil rights. Our fear is that once those rights are modified or curtailed, they will never be restored."

The FBI issued a report today showing a dramatic surge in hate crimes against Arabs since Sept. 11. You can read the whole report here.