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N.J. Attorney General’s Op-Ed: “Ex-offenders get time, now they need opportunity”

Paul Fishman, the U.S. Attorney for the District of New Jersey, published an op-ed (link) that highlights a New Jersey program to help people who are released from prison find housing and work.  Here are some excerpts:


Every year, my office prosecutes several hundred defendants who have violated criminal laws passed by Congress. For most of those defendants, a term in federal prison is warranted. Whether they are public officials who betray their oaths, predators who threaten the safety of our neighborhoods and our children, or thieves who cheat the health care system, investors or the government — incarceration is the appropriate punishment.

But prison is usually not meant to last forever. More than 95 percent of federal prisoners will be released after serving their sentences. Altogether, 700,000 federal and state prisoners are released every year, along with millions more who stream through local jails.

Most return to their communities, trying to put their lives back together and avoid the pitfalls that got them in trouble. Bearing the stain of their convictions, they compete for jobs, look for housing and seek educational opportunities.

A staggering number don’t succeed. Nationally, two-thirds of people released from state prisons are arrested again; half of those will end up back inside. Forty percent of federal prisoners return to jail in the first three years.

This level of recidivism is unacceptable. Offenders, their families and their communities are devastated by it. Public safety suffers for it. And with more than $74 billion spent annually on federal, state and local corrections, we can’t afford it.

Prison alone isn’t enough. Any smart law enforcement model prevents crime by supporting ex-offenders. That is why my U.S. Attorney’s Office — along with federal judges, the federal public defender, and the U.S. Probation Office — began the “ReNew” program, a federal re-entry court in Newark. Those leaving federal prison at serious risk of reoffending are invited to participate.

They are closely supervised, meeting biweekly with federal Magistrate Judge Madeline Cox Arleo, our office, and the federal defenders, and more regularly with probation officers. And they are supported in obtaining housing, jobs, education, counseling and legal assistance. My office provides services to the team and participants and supervises research into the program’s efficacy.

This week, the judge will preside over the first graduation ceremony for those who have successfully completed 52 weeks in the program. It is a hugely inspiring milestone for everyone involved, but especially for the graduates reimagining their lives despite great adversity….

Recently, my office launched the New Jersey Re-entry Council, a partnership with acting New Jersey Attorney General John Hoffman, other federal and state agencies, and NGO community members to share resources and ideas.

But there is one more partner we need: you. Finding a job after release is the most important key to success. In a recovering economy, securing a job after prison can be especially difficult. If you have a company that can train or hire our participants, or if you have access to housing, we need to hear from you….

One of every 100 adults in the United States is behind bars. Most will come home. They will have paid their debt and need a chance to support themselves, their families and their communities. We can look at ex-offenders returning to our communities as a risk, or we can help give them that chance. The potential rewards for their lives, for the economy and for our safety are incalculable.

Excerpts above are from Professor Berman’s Sentencing Law and Policy (link).


Kimberly Bryan’s Seminar Earns International Recognition

A legal seminar planned, authored, and moderated by Kimberly Bryan (along with co-planner Whit Clanton and a stellar team of speakers) won the 2014 Award of Professional Excellence presented by the Association for Continuing Legal Education (ACLEA). ACLEA is an international organization of continuing legal education professionals from all 50 US States, Canada, Australia, and New Zealand.

Kimberly planned and presented the program, titled “The War of the Roses in the Digital Age,” in conjunction with the NC Bar Association. Kimberly’s seminar took Top Honors in the highly competitive “Programs” category. The seminar has been attended by nearly 1000 lawyers through the State and focuses on legal and ethical issues presented by electronic and digital communications and evidence.

This is the second ACLEA award for Kimberly. Her seminar (co-planned with Nancy Grace accompanied by a team of excellent speakers and presented by the NC Bar Association), “Critical Cases: the Top 50 Family Law Cases,” took 2nd place in 2013, receiving the award for “Outstanding Achievement,” also in the competitive Programs category. Kimberly is the Managing Editor for the book of the same name that was spun off following the success of the seminar.


Cheshire Parker Celebrates Certification of Two Paralegals

Two of our wonderful paralegals, Sara Fagel and Lisa Rampello, recently graduated from Meredith College’s Paralegal Certification Program, making them North Carolina State Bar Qualified Paralegals.

Lisa Rampello (left) and Sara Fagel (right)

As with all of our paralegals, we are lucky to have them and are quite proud, and we celebrated the graduation at Raleigh Times.

Cheshire Parker celebrates paralegal certification of Sara Fagel and Lisa Rampello.


FBI will now record (some) interviews

Since its founding in 1908, DOJ policy explicitly prohibited the recording of suspect and witness interviews.  That will change on July 11th, 2014.

The new policy, announced in a memo from Deputy Attorney General James M. Cole, “establishes a presumption” that the FBI, DEA, AFT, and US Marshals “will electronically record statements made by individuals in their custody.”  The policy “also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply.”  This would include in the questioning of witnesses.

This policy is a positive step in the pursuit of truth and justice.  It will help protect against mistakes and lies in the recounting of witness statements, and will expose and possibly curb “deceit and psychological trickery legally employed by agents to obtain information and confessions.”  (AZ Republic).

The policy contains exceptions for public-safety situations and national security intelligence-gathering interviews, among others.

While it remains to be seen how quickly agents respond to this policy and how often the exceptions are utilized, as a former U.S. Attorney for Arizona commented, “It’s a step in the right direction[.]”  (AZ Republic).


Here is a link to the memo – 225510239-DOJ-Recording-Policy


Study Finds 1 in 25 Sentenced to Death Likely Innocent

A study authored by Samuel Gross, a professor from University of Michigan Law School, and others suggests that several of the 1,320 people executed in the United States since 1977 were likely innocent. The following is from a Washington Post article on the subject:

“Gross and three other researchers, including a biostatistics expert, looked at the issue using a technique often used in medical studies called survival analysis. Yale University biostatistics expert Theodore Holford, who wasn’t part of the study, said the work done by Gross ‘seems to be a reasonable way to look at these data.’

“Because of various assumptions, it might be best to use the margin of error in the study and say the innocence rate is probably between 2.8 percent and 5.2 percent, said University of South Carolina statistics professor John Grego, who wasn’t part of the study.

“The study is the first to use solid and appropriate statistical methods to address questions of exoneration or false convictions, an important subject, said Columbia Law School professor Jeffrey Fagan, who also is a professor of epidemiology at the Mailman School of Public Health. The research combines data from three independent sources, a rigorous approach used by few studies on capital punishment, he said.”

While the authors conclude that this percentage is relatively low, their findings provide additional support for the concept that innocent people have been and will continue to be put to death in the United States as long as the death penalty is an option.



Raleigh was home to the Rock’n’Roll Marathon Series on Sunday, April 13, 2014.  Cheshire Parker had three members run in the race.  Ben Spiker completed the full marathon and achieved his goal (and personal record) of under four hours (!!).  Jenny Bradley competed in her first ever half-marathon and finished strong.  Kimberly Bryan also ran the half-marathon and earned herself a personal record.  Ben, Jenny, & Kimberly are not the only Cheshire Parker runners — Keat Wiles has completed so many full marathons that he can’t remember how many he’s done.  Keat will be back on the marathon track in June.


Joe Cheshire Named Top North Carolina Lawyer by Super Lawyers

Joe Cheshire was named the top lawyer in North Carolina by SuperLawyers.com in its 2014 rankings.

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Super Lawyers is a ranking service that uses a multiphase selection process, which includes peer nominations and evaluations, as well as independent research, to select outstanding lawyers throughout the state.  Only five percent of all practicing attorneys are selected for inclusion in Super Laywers.  To read more about the SuperLawyer.com selection process, please click here.


Nine Cheshire Parker Lawyers Listed in N.C. Super Lawyers

SuperLawyers.com has released its 2013 awards.  Three of our lawyers were listed among the “Best of the Best” lawyers in North Carolina, and nine of our lawyers were honored with distinctions as SuperLawyers and Rising Stars.

In addition to the above three, the following lawyers were rated as Super Lawyers by SuperLawyers.com:

Three of our Raleigh lawyers were recognized as “Rising Stars” by the rating site.  They are:

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Super Lawyers is a ranking service that uses a multiphase selection process, which includes peer nominations and evaluations, as well as independent research, to select outstanding lawyers throughout the state.  Only five percent of all practicing attorneys are selected for inclusion in Super Laywers.  To read more about the SuperLawyer.com selection process, please click here.


Silence Not Consent in Bus Station Search, Appeals Court Holds

“On April 14, 2011, the Durham Police Department received a call reporting . . . that three African-American males in white t-shirts were chasing an individual who was holding a firearm. . . . [Upon responding to the scene, an officer] noticed a group of six or seven individuals in a sheltered bus stop. Three of the individuals were African-American males wearing white shirts.

[The Defendant] was in the bus shelter but was wearing a dark shirt. [The officer] approached the bus shelter to investigate. By the time he arrived, three or four other police officers had already converged on the scene. . . . While the other officers were already ‘dealing with the other subjects at the bus shelter,’ . . . [the Defendant] was still seated in the shelter. . . . [The officer] stopped about four yards in front of [the Defendant], who was sitting with his back to the shelter’s back wall. Thus [the Defendant] was blocked on three sides by walls, faced a police officer directly in front of him, and had another three or four police officers nearby who were ‘dealing with’ every other individual in the bus stop. . . .

“After approaching [the Defendant], [the officer] first asked whether [the Defendant] had anything illegal on him. [The Defendant] remained silent. [The officer] then waved [the Defendant] forward in order to search [him], while simultaneously asking to conduct the search. In response to [the officer’s] hand gesture, [the Defendant] stood up, walked two yards towards [the officer], turned around, and raised his hands. During the search, [the officer] recovered a firearm from [the Defendant].” (U.S. v. Robertson).

The Defendant moved to suppress the firearm seized during the search, arguing that he was merely obeying an order, as opposed validly consenting to a search. The Fourth Circuit agreed and suppressed the firearm.

The court cited Bumper v. N.C., 391 U.S. 543 (1968), for the proposition that the government’s burden of proving consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” The court noted that “[t]he area around the bus shelter was dominated by police officers”; [t]he officer’s questioning [of the Defendant] was immediately accusatory”; [the Defendant’s] exit was blocked by [the officer]”; and the officer “never informed [the Defendant] that he had the right to refuse the search.” In combination, these factors “clearly communicated to [the Defendant] that he was not free to leave or to refuse [the officer’s] request to conduct a search.” Thus, the Defendant’s “only options were to submit to the search peacefully or resist violently.” The court held that these facts “are not enough for the government to demonstrate valid consent.”

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This case provides an updated rubric for analyzing consent issues in search cases. The opinion addresses many additional factors that if present may have changed the outcome—the most important seems to be the officer informing the person that they have the right to refuse to be searched. The opinion is worth reading for any North Carolina criminal lawyer considering filing a motion to suppress in a case involving a claim of consent to search. It is possible that the same logic could apply even if the person had actually given affirmative consent when it seemed to him or her that there was no other option.



I Didn’t Do Anything Wrong, Why Shouldn’t I Talk to the Feds?

Everyone has heard this piece of common wisdom: never talk to law enforcement without a lawyer. Yet many intelligent people do so anyway.


Most people know they aren’t criminals.  So they think, “Why shouldn’t I give an interview?  I’ve done nothing wrong.”

The problem with this thinking is that it assumes that the criminal law punishes only knowing violations of the law.

While that should be true, in the mid-1980’s the Federal government began a trend of using the criminal law to regulate behavior, and often doing so without requiring that the person have a “guilty mind” before being labeled a felon, fined and imprisoned.

It is this second part of the trend that causes the most problems for ordinary citizens.

The mental element in a crime is known as “mens rea,” which can be defined as the intention or knowledge of wrongdoing.  For example, the accidental killing of a person is not murder, because murder requires the homicide to be intentional.  That intentionality requirement is the “mens rea,” and it is an important safeguard to prevent innocent people from being convicted of crimes and sent to prison.

However, a WSJ article from late 2011 reported that  “more than 40% of nonviolent [criminal] offenses created or amended during two recent Congresses . . . had ‘weak’ mens rea requirements, at best[.]”  More recently the Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) published  a joint paper outlining the potential for “pervasive injustice” that results from the practice of discarding “the justification for criminal punishment that has for centuries been based on an individual’s intent to commit a wrongful act.”  (“Without Intent” paper).

One effect is an explosion in our prison population, as one in every 100 adults in America is behind bars, and one in 31 adults is under “correctional” supervision.  (The Economist).

The important impact of this development for the average person, however, is that it obliterates the concept that a person has nothing to fear from the Feds if they know they’ve done nothing wrong.

Today, you can be perfectly innocent in your own mind and still be a criminal in the eyes of the federal government.

So, if a federal agent shows up at your door, be polite, but be smart–decline the offer to speak then and there.  Get their card and tell them you will be in touch about scheduling an interview.  Then call a federal criminal defense attorney.

While your lawyer may decide that being interviewed is the appropriate option, it is not a decision you should make on your own.


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