Criminal Defending Conference Program

Criminal Defending Conference December 3-4, 2020 law.illinois.edu/criminal-defending-2020

I L L I N O I S L AW Co-sponsored by the Program in Criminal Law and Procedure

T

he tradition of criminal defending has deep historical roots in the United States, preceding our constitutional recognition of the right to counsel. John Adams’s defense of the Boston Tea Party instigators was an early example of this. This founding

figure and second president of the United States, often revered as the nation’s first public defender, was undoubtedly asked the same question that criminal defense lawyers are universally met with today: “How do you defend those people?”

Common explanations include the importance of the constitutional rights of the accused, the failings of our criminal justice system and or the need for individuals to “have their day in court.” But the work of defense lawyers raises many more questions worthy of exploration.

This Conference takes the “how” question head on, shifting the emphasis appropriately to: How do criminal defense attorneys defend? Criminal law scholars, many of whom have practiced as criminal lawyers will be brought together to help explore the unique role of defenders and advance theories on defending. The conference aspires to be the inaugural assembly of a recurring scholarly conversation among academics who think seriously about the world of criminal defense.

The Agenda

Thursday, December 3

11:30

Participants Only Roundtable Introduction

12:00-1:15

Panel 1 Keynote Book Talk on “Gideon’s Promise,” Moderated by Margareth Etienne Presenter: Jonathan Rapping (Commentators: Russell Covey, Stephen Henderson, Alexandra Natapoff)

1:15- 1:45

Lunch Break

1:45- 2:45

Panel 2 on “Defending Gideon,” Moderated by Kenworthey Bilz Presenter: Abbe Smith (Commentators: Deborah Archer and César Cuauhtémoc García Hernández)

2:45-3:45

Panel 3 on “Defending, Resistance and Obedience,” Moderated by Heidi Hurd Presenter: Youngjae Lee (Commentators: Morgan Cloud and Todd Haugh)

Friday, December 4

8:30-9:30

Panel 4 on “Pretrial Indigent Defense,” Moderated by Andrew Leipold Presenters: Brandon Garrett and Thomas Maher (Commentators: Andrea Dennis and Chris Slobogin)

9:45- 10:45

Panel 5 on “Standby Counsel: Current Issues, Trends and Ethics,” Moderated by Jackie Ross Presenter: Jona Goldschmidt (Commentators: Judith Miller and Natasha Silas)

11:00

Participants Closing Tea Party

Zoom Link: https://illinois.zoom.us/j/82602011482?pwd=elQxTU9mVjJ2SC90T mJiVUxLWFVvZz09#success Meeting ID: 826 0201 1482 Password: 642502 * All sessions will take place in central time (CST/CDT).

Contributor Biographies Deborah N. Archer is an Associate Professor of Clinical Law; Co-Faculty Director of the Center on Race, Inequality, and the Law; and Director of the Civil Rights Clinic at NYU School of Law. She is a nationally recognized expert in civil rights and racial justice, and teaches and writes in the areas of racial justice, civil rights, and clinical pedagogy. In the Civil Rights Clinic, Deborah and her students represent indigent, institutional, and pro bono clients in a range of civil rights matters, including employment discrimination, educational equity, voting rights, and criminal justice reform. Deborah is a graduate of Yale Law School, where she was awarded the Charles G. Albom Prize, and Smith College. She previously worked as an attorney with the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund, Inc., where she litigated in the areas of voting rights, employment discrimination, and school desegregation.

Kenworthey Bilz focuses her scholarship on how social psychological processes can inform the study of law. Specifically, she is interested in how legal institutions, laws, rules and practices affect perceptions of legitimacy, morality, and justice, which in turn affect behavior. She draws most of her examples from the area of criminal law and evidence, and empirically tests her theories experimentally, using the theories and methods of social psychology. Before entering law teaching, she clerked for the Honorable Frank Easterbrook on the United States Court of Appeals for the Seventh Circuit.

Morgan Cloud is Charles Howard Candler Professor of Law at Emory University. He teaches and writes about privacy law, constitutional criminal procedure, white collar crime, criminal law, and constitutional theory. His numerous scholarly articles have been published in leading journals, including the Stanford Law Review, the University of Chicago Law Review, the Southern California Law Review, and the UCLA Law Review.

Cloud has been a distinguished visiting professor at universities in the United States and Europe. In Europe he has been a German Marshall Fund distinguished guest lecturer and has taught courses on Corporate Crime in a Global Economy, constitutional theory, and United States law at the University of Konstanz Law School in Germany, at the Central European University in Budapest, Hungary, and at the European Business School in Germany. He has lectured at various universities, including the University of Heidelberg and the University of Paris, Pantheon Sorbonne.

Before joining the Emory faculty, Cloud was a trial lawyer and litigator in Florida and California, litigating cases throughout the United States. He served as a program director for the National Institute for Trial Advocacy for more than twenty years.

Russell Covey teaches criminal law and procedure and is the author of numerous articles and book chapters in the field. In particular, his work focuses on the intersection of wrongful convictions, innocence and the guilty plea process, exploring and applying insights from a variety of disciplines, including economics, cognitive psychology, and behavioral economics to shed light on the dynamics of criminal justice. His recent work includes studies on police misconduct as a cause of wrongful convictions, use by police and prosecutors of the threat of perjury sanctions to deter witnesses from recanting false incriminating testimony, and the especially pernicious effects of jailhouse informants in convicting the innocent. He has filed amicus briefs on behalf of the National Association of Criminal Defense Lawyers and represented pro bono clients in criminal appeals in the U.S. Court of Appeals for the 9th Circuit and the U.S. Supreme Court.

Andrea L. Dennis joined the University of Georgia School of Law faculty in 2010 and was appointed to the John Byrd Martin Chair of Law in 2019. She currently serves as the school’s associate dean for faculty development. Her scholarship explores criminal defense lawyering, race and criminal justice, criminal informants and cooperators, youth advocacy, legal socialization of youth and the cradle-to-prison pipeline. Dennis’ book “Rap on Trial: Race, Lyrics and Guilt in America” has received national attention, and courts nationwide have cited her research on rap lyrics as criminal evidence. She has also published works in the American Criminal Law Review, the Catholic University Law Review, the Columbia Journal of Law and the Arts, the Howard Law Journal, the Marquette Law Review, the Nebraska Law Review, the Nevada Law Journal and the Journal of Legal Education.

Margareth Etienne, the Nancy Snowden Research Scholar in Law at the University of Illinois, teaches criminal law and procedure, sentencing, education law and children in the law. Her research focuses on legal decision-making and ethics in institutions ranging from criminal courts to schools and families. In 2004, she was awarded a Fulbright Grant to conduct judicial training on white-collar crime in Senegal. Her select publications include “Understanding Parity As A First principle of Sentencing” (58 Stanford L. Rev., 2006); “The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers” (95 J. Crim.

L. & Criminology, 2005); “The Declining Utility of the Right to Counsel in Federal Court: An Empirical Study on the Role of Defense Attorney Advocacy Under the Sentencing Guidelines” (92 California Law Review, 2004); “Remorse, Responsibility, and Regulating Advocacy: Making Defendants Pay for the Sins of Their Lawyers” (78 New York University Law Review, 2003). Her article, “Addressing Gender Based Violence in an International Context,” appeared in 18 Harvard Women’s Law Journal 139 (1995). She was a visiting professor at the University of Chicago Law School in 2007-08 and has made presentations at Stanford Law School, the University of Chicago Law School, Northwestern University Law School, Yale Law School, Fordham Law School, University of Oregon Law School, Notre Dame Law School, and the American Bar Foundation.

Brandon L. Garrett joined the Duke Law faculty in 2018 as the inaugural L. Neil Williams, Jr. Professor of Law. A leading scholar of criminal justice outcomes, evidence, and constitutional rights, Garrett previously was the White Burkett Miller Professor of Law and Public Affairs and Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia.

Garrett’s current research and teaching interests focus on forensic science, eyewitness identification, corporate crime, constitutional rights and habeas corpus, and criminal justice policy. In addition to numerous articles published in leading law journals, he is the author of five books, the most recent being “The Death Penalty: Concepts and Insights” (West Academic, 2018) (with Lee Kovarsky). His 2011 book “Convicting the Innocent: Where Criminal Prosecutions Go Wrong” (Harvard University Press), an examination of the cases of the first 250 people to be exonerated by DNA testing, was the subject of a symposium issue in New England Law Review, and received an A.B.A. Silver Gavel Award, Honorable Mention, and a Constitutional Commentary Award. His work has been widely cited by courts, including the U.S. Supreme Court.

Dr. Jona Goldschmidt is a Professor Emeritus in the Department of Criminal Justice and Criminology at Loyola University Chicago. He earned his Bachelor of Science degree at the University of Illinois at Urbana-Champaign in Communications (News-Editorial) (1972), his JD at DePaul University College of Law (1975), and his PhD in the Interdisciplinary Program in Justice Studies at Arizona State University (1990), where his area of concentration was Dispute Resolution. He is a member of the Illinois and California bars, and is admitted to the bars of the Supreme Court of the United States, the 7th and 8th US Circuit Courts of Appeal, and the US District Courts for the Southern and Northern Districts of Illinois. Before coming to Loyola, Dr. Goldschmidt was a member of the faculty of Northern Arizona University’s Department of Criminal Justice, and was an Assistant Executive Director of the American Judicature Society.

Todd Haugh is an Assistant Professor of Business Law and Ethics at Indiana University’s Kelley School of Business, where he teaches courses on business ethics, white collar crime, and critical thinking. His scholarship focuses on white collar and corporate crime, business and behavioral ethics, and federal sentencing policy, exploring the decision-making processes of the players most central to the commission and adjudication of economic crime and unethical business conduct. His work has appeared in top law and business journals, and his expertise relating to the burgeoning field of behavioral compliance has led to frequent speaking and consulting engagements with major U.S. companies and ethics organizations. He is also regularly quoted in national news publications such as the New York Times, Wall Street Journal, Forbes, Bloomberg News, and USA Today, as well as various legal, business, and popular blogs.

Stephen Henderson is the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma College of Law. Most recently, he has become quite interested in the potential legal ramifications of artificial intelligence and quantum computing, including what they might teach about jury and other criminal law decisionmaking. But for decades he has written on slightly-less-glamorous but slightly-morepressing topics of American criminal law and procedure, including a lot about search and seizure and a little about vigilantism. He enjoys teaching from his textbooks and collaborating with other scholars, providing teaching materials and public education through two websites, and sometimes tilting at windmills through legislative testimony, the drafting of standards, or an amicus brief.

César Cuauhtémoc García Hernández is an associate professor at the University of Denver Sturm College of Law and a frequent commentator in national and international media. He publishes crimmigration.com, a blog about the convergence of criminal and immigration law that is a past recipient of the 100 best law blogs honor by the ABA Journal. César’s academic interests also center on crimmigration law. His articles about the right to counsel for immigrants in the criminal justice system, immigration imprisonment, and race-based immigration policing have appeared in the California Law Review, UCLA Law Review, BYU Law Review, Maryland Law Review, and Georgetown Immigration Law Journal, among others. His first book, “Crimmigration Law,” was published by the American Bar Association in 2015.

Heidi Hurd is a scholar and teacher in the areas of criminal law, torts, environmental law, environmental ethics, and moral, legal, and political philosophy. She served as the College of Law’s eleventh dean from 2002-2007 and held the David C. Baum Professorship in Law from 2002-2017.

Professor Hurd has written numerous anthologized book chapters, peer-reviewed philosophical essays, and articles that have appeared in the nation’s top law journals.

She is the author of “Moral Combat” (Cambridge University Press, 1999) and she has a solo-edited collection of essays from Cambridge University Press entitled “Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander” (2018).

With her Illinois Law colleague Ralph Brubaker, she has a contract with Oxford University Press for a book on the moral underpinnings of personal bankruptcy entitled “The Virtue of Bankruptcy.” She has given over 150 lectures and paper presentations across the United States, Canada, the U.K., Europe, Central America, and South America, as well as at universities in the Middle East, Africa, East Asia, and Australia, and she has provided testimony before the United States House Committee on the Judiciary on proposed criminal legislation.

Youngjae Lee is Professor of Law and Associate Dean for Research at Fordham University School of Law. Lee’s scholarship focuses on questions of criminal culpability, criminal procedure, and state punishment, and he has written extensively under three broad headings: criminal jury and reasonable doubt, criminalization of disobedience, and the principle of proportionality in criminal law.

Lee’s representative publications include: “Reasonable Doubt and Disagreement,” 23 Legal Theory 203 (2017); “Military Veterans, Culpability, and Blame,” 7 Criminal Law and Philosophy 285 (2013); “Punishing Disloyalty?: Treason, Espionage, and the Transgression of Political Boundaries,” 31 Law and Philosophy 299 (2012); “Recidivism as Omission: A Relational Account,” 87 Texas Law Review 571 (2009); and “The Constitutional Right Against Excessive Punishment,” 91 Virginia Law Review 677 (2005). Lee is currently working on a series of articles on mala prohibita and regulatory offenses and a book project on punishment of disobedience.

Andrew Leipold, the Edwin M. Adams Professor of Law at University of Illinois College of Law, writes in the area of criminal law and procedure and has served as a consultant to the Illinois Criminal Law Reform Commission, the Governor’s Truth in Sentencing Commission, and the Office of the Independent Counsel for the Whitewater Investigation. On October 1, 2007, Professor Leipold was appointed to a three-year term on the Judicial Conference Advisory Committee on Criminal Rules by U.S. Supreme Court Chief Justice John G. Roberts.

His most recent publication is entitled, “The Impact of Joinder & Severance on Federal Criminal Cases: An Empirical Study” (59 Vanderbilt Law Review). Additional select publications are: “How the Pretrial Process Contributes to Wrongful Convictions” (42 American Criminal Law Review 1123), “Why are Federal Judges So Acquittal Prone” (83 Washington University Law Quarterly 151), “The Grand Jury Clause of the Fifth Amendment” (Heritage Foundation Guide to the Constitution), “Strategy and Remorse in Capital Trials” (80 Indiana Law Journal 47) and Volumes 1 and 1A in Federal Practice and Procedure: Criminal (3d ed.), “The Problem of the Innocent, Acquitted Defendant” (94 Northwestern University Law Review 1297, 2001), and “Constitutionalizing Jury Selection in Criminal Cases” (86 Georgetown Law Journal 945, 1998).

Thomas Maher is the Executive Director of the Center for Science and Justice, and also teaches Criminal Trial Practice. Maher came to the Center from his position as Executive Director of North Carolina’s Indigent Defense Services, the state agency that oversees the provision of indigent representation in North Carolina. Maher served as Director of IDS for 11 years. Maher previously served as Executive Director of the Center for Death Penalty Litigation, which represents clients on death row, trains lawyers involved in post-conviction litigation, and provides assistance and training for lawyers involved in capital trials. Prior to joining CDPL, Maher was in private practice, representing clients in civil and criminal matters, from trial through appeal.

Maher earned his undergraduate degree in 1979 at Northwestern University and his law degree in 1982 at the University of North Carolina at Chapel Hill. Maher spent two years clerking for the United States Court of Appeals for the Seventh Circuit before

entering private practice. Maher has been involved in teaching trial practice and related classes, both to law students and practicing attorneys.

Judith Miller is an Associate Clinical Professor of Law in the Federal Criminal Justice Clinic. Prior to joining the University of Chicago, Ms. Miller was a Trial Attorney at the Federal Defenders of San Diego, Inc. At Federal Defenders, she represented indigent defendants accused of federal felony offenses from arraignment through appeal. She received her JD from Yale Law School, as well as an MA in Political Science from Yale University. Ms. Miller clerked in Miami, FL, for the Hon. Judge Rosemary Barkett, of the Eleventh Circuit Court of Appeals. Both before and after clerking, Ms. Miller also worked as a union-side labor lawyer for the law firm of Bredhoff & Kaiser, PLLC, in Washington, DC. Alexandra Natapoff is an award-winning legal scholar and criminal justice expert. In addition to “Punishment Without Crime,” she is also author of “Snitching: Criminal Informants and the Erosion of American Justice” (NYU Press), which won the ABA Silver Gavel Award Honorable Mention for Books, and co-editor of “The New Criminal Justice Thinking” (NYU Press), which received a 2017 Choice Academic Title Award. She is the Lee S. Kreindler Professor of Law at Harvard Law School, a 2016 Guggenheim Fellow, and a member of the American Law Institute. She has testified before Congress; she has helped draft state and federal reform legislation; and she appears frequently in national media outlets. Professor Natapoff is a graduate of Yale University and Stanford Law School. Prior to joining the academy, she served as a federal public defender in Baltimore, Maryland.

Jonathan Rapping is currently a Visiting Associate Professor of Law at Harvard Law School. He teaches and presents at numerous programs for criminal defense associations, public defenders offices, and law schools throughout the country. In 2007, Professor Rapping was awarded a Soros Justice Fellowship to develop Gideon’s Promise, a non-profit organization devoted to training and supporting public defenders across the Southeastern United States, a project he currently directs. He has won numerous awards for his work in this area. Professor Rapping and Gideon’s Promise are featured in the award-winning HBO documentary, Gideon’s Army.

In 2014, Gideon’s Promise partnered with the Maryland Office of the Public Defender (OPD) to help OPD improve the quality of representation in its state. Professor Rapping was named a 2014 MacArthur Foundation Genius Fellow for the impact Gideon’s Promise has made on society. The MacArthur Fellow Program awards unrestricted fellowships to talented individuals who have shown extraordinary originality and dedication in their creative pursuits and a marked capacity for self-direction.

Jacqueline Ross is a respected scholar in the fields of evidence and criminal law and procedure. Her most recent publication, co-edited with Stephen Thaman, is “Comparative Criminal Procedure” (Elgar Press, 2016). She is currently under contract with Cambridge University Press to write “Undercover Under Scrutiny: A Comparative Look at Covert Policing in the United States, Germany, Italy, and France.” This book will offer the first sustained look at how the United States, Germany, Italy, and France conceptualize and regulate covert operations. Ross has also received a Fulbright Research Fellowship and a grant from France’s Agence Nationale de Recherche to fund a new research project comparing how French and American police use local security partnerships as sources of intelligence.

Professor Ross has also published on undercover policing and local security partnerships in both American and European journals. She is the co-director (with Jacques DeLisle and Kim Lane Scheppele) of the Pennsylvania-Illinois-Princeton Comparative Law Work in Progress Workshop. She is also the co-organizer with Thierry Delpeuch (Centre National de Recherche Scientifique) of a transatlantic seminar series on intelligence-led policing and local security partnerships.

Natasha Silas is an Adjunct Professor at Emory Law School. Her legal career was inspired by famed civil rights attorney C.B. King, who represented both of her parents when they were arrested as protesters with the Student Nonviolent Coordinating Committee during the summer of 1963. Mr. King’s legendary courtroom presence, courageous advocacy, and impact on his clients fueled Tasha’s dreams of becoming a powerful courtroom presence herself. After completing her education with a B.S. from MIT and a J.D. from UVA, Tasha did not feel that much closer to her dream of becoming an outstanding courtroom advocate, until she came to National Criminal Defense College (NCDC) as a Participant in 1995. She credits NCDC with helping her discover the path to her unique voice, style, and power in the courtroom. For 25 years, Tasha’s NCDC skills have served her well at the Federal Defender Program in Atlanta, where she represents clients at trial and appellate levels in all types of federal criminal cases.

Christopher Slobogin has authored more than 100 articles, books and chapters on topics relating to criminal law and procedure, mental health law and evidence. Named director of Vanderbilt Law School’s Criminal Justice Program in 2009, Professor Slobogin is one of the five most cited criminal law and procedure law professors in the country over the past five years, according to the Leiter Report, and one of the top 50 most cited law professors overall from 2005-2015, according to Hein Online.

Particularly influential has been his work on the Fourth Amendment and technology and his writing on mental disability and criminal law, appearing in books published by the University of Chicago, Harvard University and Oxford University presses and in journals such as the Chicago Law Review, Georgetown Law Journal, Northwestern Law Review, Pennsylvania Law Review, Stanford Law Review and Virginia Law Review. He has appeared on Good Morning America, Nightline, the Today Show, National Public Radio,

and many other media outlets, and has been cited in almost 5,000 law review articles and treatises and more than 200 judicial opinions, including three U.S. Supreme Court decisions. Professor Slobogin holds a secondary appointment as a professor in the Vanderbilt School of Medicine’s Department of Psychiatry.

Abbe Smith is Director of the Criminal Defense and Prisoner Advocacy Clinic, Co-Director of the E. Barrett Prettyman Fellowship Program, and Professor of Law at Georgetown University. Professor Smith teaches and writes on criminal defense, legal ethics, juvenile justice, and clinical legal education. In addition to numerous law journal articles, she has published a number of books, the most recent being “Case of a Lifetime: A Criminal Defense Lawyer’s Story” (Palgrave MacMillan, 2008), “Understanding Lawyers’ Ethics” (with Monroe Freedman) (4th ed., Lexis-Nexis, 2010), and “How Can You Represent Those People: Criminal Defense Stories” (2013) (with Monroe Freedman).

Professor Smith began her legal career at the Defender Association of Philadelphia, where she was an Assistant Defender, a member of the Special Defense Unit, and a Senior Trial Attorney from 1982 to 1990. She continues to be actively engaged in indigent defense—as both a clinical supervisor and member of the Criminal Justice Act panel for the DC Superior Court—and frequently presents at public defender and legal aid training programs in the United States and abroad. Professor Smith is on the Board of Directors of The Bronx Defenders and the National Juvenile Defender Center, and a longtime member of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the National Lawyers Guild Court.

Criminal Law Faculty at Illinois: Kenworthey Bilz Margareth Etienne Heidi Hurd

Eric Johnson Patrick Keenan Wayne LaFave

Andrew Leipold Michael Moore Jacqueline Ross

I L L I N O I S L AW