Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 2
Chair’s Report to Members
By RonaldC. Smith
In 1957 Robert Frost visited the campus of the college I had attended. I was in town on leave from the military, and eager to attend any event that did not require a spit shine. Frost reading his own poems was a true prize. My friends and I crammed together in the overflow crowd. After Frost concluded his program, he took questions from the audience.
His answer to one question has stayed with me for the last 45 years.
"Mr. Frost. What will we do if The Bomb goes off?"
He paused to consider his answer. This was THE question of the late 1950s.
"Well," he said, "I guess we’ll all find ourselves on the Other Side, brushing ourselves off, and saying, ‘Whew! Wasn’t that something!’ "
I believe that at the end of Council business at the ABA Annual Meeting in Washington, D.C., this August, I will pass the gavel as chair of the Criminal Justice Section to Albert Krieger, then wander out of the meeting room, brush myself off, and say, "Whew! Wasn’t that something!"
It has been something.
We knew on September 11 that much, maybe everything, would change.
Surpassing ABA Model Rule of Professional Conduct 6.1, a rule that charges lawyers with responsibility for "participat[ing] in activities for improving the law, the legal system or the legal profession," American lawyers spontaneously and vigorously contributed their time and talent to helping the victims of terrorism, but also in their respective arenas some lawyers fought to ferret out and curtail terrorism and terrorists, and other lawyers fought to ensure that the Constitution and the American justice system maintained their force and integrity in this historic moment of national stress.
The articles in this issue of Criminal Justice magazine reflect these efforts and the debate that these efforts engender. The Tree of Liberty has been sprinkled, not only with the blood of the patriots fighting terrorists in an airplane and fighting to save civilians in the World Trade Towers, but with the words of earnest lawyers fighting to preserve the body politic as they see it.
John P. Elwood puts forth the case supporting the use of governmental power in the Patriot Act, particularly with respect to the monitoring of attorney-client conversations [". . . narrowly tailored to address the danger of catastrophic harm . . ."], the treatment of detainees ["The controversy stems, in no small part, from misinformation . . ."], and the proposed use of military tribunals [". . . that military tribunals are rubber stamps for the prosecution is not borne out by historical experiences"].
Ellen S. Podgor analyzes ways in which the Patriot Act may bring substantive and procedural changes to federal computer crime laws [". . . computer acts involving acts of fraud that are unrelated to terrorism may be the subject of a United States prosecution even when the computer is located outside the country"].
The article by Paul R. Rice and Benjamin Parlin Saul explores the edges of the attorney-client privilege, the mechanics of the government’s monitoring of conversations between "suspected terrorists" and their attorneys, and asks many hard questions.
Frank H. Wu, reviewing the precedent of the internment of Japanese during WWII, says of the current debate, "It turns out once again to be easy enough to surrender the civil rights of somebody else."
Eric M. Freedman poses the question, "If we are indeed at war, what values are we fighting for?" He then adds, "To abandon our core values in times of stress is to confess that we lack confidence in them."
The article by Sara Sun Beale and James E. Felman concisely reviews the history and the rules of federal grand jury secrecy, seemingly concedes that there may be a need to allow some use of otherwise secret material, and cautions: "The potential for backdoor expansion of the grand jury’s investigative jurisdiction is also problematic because it may increase the risk that the national defense and security institutions will be inappropriately involved in domestic affairs."
The articles in this issue of Criminal Justice magazine are superb. They reflect the Criminal Justice Section’s ongoing engagement in the debate on how best to preserve—indeed, improve—this nation’s justice system.
Of the many manifestations of the Section’s involvement in the many facets of this engagement:
• Members of the White Collar Crime Committee, particularly James K. Robinson and Robert Litt, developed a statement that became the ABA’s Task Force on Terrorism and the Law December 2001 comment to federal officials on the issue of monitoring attorney-client conversations of suspects in federal custody.
• In February, Section delegates Neal Sonnett and Steve Saltzburg won House of Delegates approval for a third edition of the ABA Standards for Criminal Justice on "Pretrial Release," emphasizing that the accused should be released while awaiting trial.
• In addition to its work developing the third edition of that portion of the Standards pertaining to the accused’s right to a speedy trial. the Standards Committee approved for submission to the Council, for debate at the August ABA meeting in Washington, D.C., a new chapter 19 on "Collateral Sanctions and Unreasonable Barriers to Reentry of Convicted Persons." This chapter makes automatic collateral penalties an explicit part of the sentencing process, and prohibits unreasonable administrative disqualification on grounds related to conviction.
• Also in February 2002, the Section obtained an American Bar Association caution to federal authorities that it must preserve the attorney-client privilege and attorney-client relationship in developing money laundering "gatekeeper" initiatives. ABA President Robert Hirshon, recognizing the significance of this issue, followed up by appointing CJS members Neal Sonnett, Stephen Saltzburg, and Bruce Zagaris to his newly created 12-member ABA Task Force on Gatekeeper Regulation and the Profession.
• The Section continued to sponsor outstanding continuing legal education programs: Child Witness Testimony, Environmental Crime, Gaming, Health Care Fraud, Money Laundering, White Collar Crime, Qui Tam, Representing Lawyers Indicted for Traditional Legal Services, Federal Sentencing Guidelines, and (new) Cybercrime. Some were cosponsored with other organizations. Moreover, a number of these were produced in a cooperative partnership with other organizations, and others were held as part of other regional programs
The Section issued new books, including: The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers, and Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts, and an Annual Review of Supreme Court Decisions: Criminal Cases; and also published the "Electronic Surveillance of Private Communications" portion of the ABA Standards for Criminal Justice (Electronic Surveillance).
Reflecting its commitment to working with law students, the Section sponsored law student competitions: In 2001 the William Greenhalgh Law Student Writing Competition produced a remarkable essay, "Freedom from Fear," by L. Richard Walton, a student at Georgetown University Law Center ( see 16 (No. 2) Crim. Just. 42 (Summer 2001)); in April 2002 Stetson University School of Law’s student team won the 12th Annual National Criminal Justice Trial Advocacy Competition cosponsored with The John Marshall Law School in Chicago; and in November 2001 the students from Catholic University’s law school won the Northeast Regional Trial Advocacy Competition cosponsored with Quinnipiac University College of Law in Hamden, Connecticut.
The Section’s Juvenile Justice Center continued its wide range of activities. At the same time, the grant-funded National Juvenile Defender Center persevered and held its annual National Juvenile Defender’s Summit in October 2002. Throughout the year, dedicated members have followed up on the summit by holding regional training sessions and confront issues common to those attorneys who defend juveniles.
The Council unanimously approved an initiative creating a new Criminal Justice Section award to recognize prosecutors who embody the principles espoused by the ABA Standards for Criminal Justice. This award will join the Livingston Hall Juvenile Justice Award and the Charles English Award as a Section effort to recognize outstanding lawyers.
A parting note: CJS chair-elect Albert Krieger will address you in the next "Report from the Chair." He brings to this office experience, wisdom, a forceful personality, and a wonderful sense of humor. I sincerely hope that during his term we as a nation will not suffer terrorist attacks or other grievous events. My prayer is that Albert Krieger will, at the end of his term in 2003, say not with relief at having survived a time of trauma, but rather with the exuberance and pride of accomplishing great things in a peaceful world, "Whew! Wasn’t that something!"
Ronald C. Smith is chair of the Criminal Justice Section and a law professor at The John Marshall Law School in Chicago.