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Frank Dunham Federal Criminal Defense Conference THE OFFICES OF THE FEDERAL PUBLIC DEFENDERS FOR THE EASTERN AND WESTERN DISTRICTS OF VIRGINIA JOINTLY PRESENT THE TENTH FRANK DUNHAM FEDERAL CRIMINAL DEFENSE CONFERENCE Thursday, April 6 - Friday, April 7, 2017 Boar’s Head Inn, Charlottesville, Virginia THIS PAGE INTENTIONALLY LEFT BLANK TABLE OF CONTENTS Program Schedule. iv Faculty Information. vi Fourth Circuit Update. 1 Discussion overview. 1 Frances H. Pratt & Patrick Bryant, Fourth Circuit Decisions on Criminal Law and Procedure (April 1, 2016 - March 30, 2017).. 3 The Effects of Implicit Bias on the Prosecution, Defense, and Courts in Criminal Cases. 25 Presentation Outline. 26 Ethical Considerations When Clients Want to (or Did) Testify. 33 Discussion overview. 33 Hypotheticals.. 35 Virginia Rules of Professional Responsibility, Amendments to Rule 1.6 and Rule 3.3.. 43 Supreme Court Review and Preview.. 77 Paul M. Rashkind, United States Supreme Court: Review, Preview, and Overview of Criminal Cases (as of March 29, 2017).. 78 Litigation Strategies in Opioid Cases. 121 Discussion overview. 121 Presentation outline.. 123 FDFCDC i R. E. Ferner, Post-Mortem Clinical Pharmacology, 66 British J. Clin. Pharm. 430 (2008).. 136 CJA Breakout: Obtaining Expert and Other Litigation Support Services. 151 Presentation slides.. 152 Presentation outline.. 161 Guide to Judicial Policy, Vol. 7, Ch. 3, Authorization and Payment for Investigative, Expert, or Other Services. 173 Texts, 18 U.S.C. § 3006A(3) and § 3599(g)(2). 195 Sample, Ex Parte Motion to Appoint and Compensate a Paralegal.. 197 Sample, engagement letter. 201 FPD Breakout: Maximizing Attorneys’ Effective Use of defenderData. 203 Discussion overview. 203 Presentation slides (Defender Services Office). 205 Presentation slides (Justice Works). 214 Neuropsychology and Sentencing Mitigation: The New Frontier. 223 Discussion overview. 223 Presentation slides (Marcopulos). 224 Presentation slides (Capestany). 245 Nita A. Farahany, Neuroscience and Behavioral Genetics in US Criminal Law: An Empirical Analysis, 2 J. L. & Biosciences 485 (2016) . 253 FDFCDC ii Ethics: Game Show Potpourri, Round IV. 279 Discussion overview. 279 The Monster Called File Retention, 61 Va. Lawyer 62 (Dec. 2012). 281 LEO 542, Revealing a Contemplated Crime (2010). 283 LEO 1305, Disposition of Clients’ Closed Files (1989). 284 LEO 1802, Advising Clients on the Use of Lawful Undisclosed Recording (2010). 286 LEO 1862, “Timely Disclosure” of Exculpatory Evidence and Duties to Disclose Information in Plea Negotiations (2012). 295 In re: Brown, No. CL09-5166 (Norf. Cir. Ct. 2009) (Va. St. Bar No. 08-021-072452). 299 FDFCDC iii PROGRAM SCHEDULE Thursday, April 6 1:30 Program check-in begins (Original Ballroom - Foyer) 2:30 Welcome and Introduction Geremy Kamens, FPD ED Va. (Original Ballroom) Larry Shelton, FPD WD Va. 2:35 Fourth Circuit Update Alan DuBois, AFPD EDNC (Original Ballroom) Patrick Bryant, RWA ED Va. 3:35 Break (Original Ballroom - Foyer) 3:50 The Effects of Implicit Bias on the Prose- Wayne McKenzie, Esq. cution, Defense, and Courts in Criminal Cases (Original Ballroom) 4:50 Adjourn for evening Friday, April 7 7:30 Continental breakfast begins (Grand Ballroom, Pavilion I and II) 8:00 Program check-in continues 8:25 Welcome and Introduction Geremy Kamens, FPD ED Va. (Original Ballroom) Larry Shelton, FPD WD Va. 8:30 Ethical Considerations When Clients Tom Spahn, Esq. Want to (or Did) Testify (Original Ballroom) 9:30 Break (Original Ballroom - Foyer) FDFCDC iv 9:45 Supreme Court Review and Preview Paul Rashkind, AFPD SD. Fla. (Original Ballroom) 10:45 Litigation Strategies in Andrea Harris, AFPD WD Va. Opioid Cases Lisa Lorish, AFPD WD Va. (Original Ballroom) Aaron Cook, CJA WD Va. 11:45 Keynote Address Hon. Michael S. Nachmanoff (lunch provided) U.S. Magistrate Judge, ED Va. (Grand Ballroom, Pavilion I and II) 1:15 CJA Breakout: Obtaining Expert Larry Dash, CJA Budgeting Atty and Other Litigation Support Fred Heblich, AFPD WD Va. Services Hon. Robert Ballou, U.S. (Original Ballroom) Magistrate Judge, WD Va. 1:15 FPD Breakout: Maximiming Attorneys’ Mike Tate, Justice Works Effective Use of defenderData Bob Boucher, Defender Services (Ednam Hall) Todd Watson, Defender Services 2:15 Break (Original Ballroom - Foyer) 2:30 Neuropsychology and Sentencing Dr. Bernice Marcopulos, JMU Mitigation: The New Frontier Beatrice Capestany, Duke Univ. (Original Ballroom) Fay Spence, FAFPD WD Va. 3:30 Ethics: Game Show Potpourri, Ken Troccoli, AFPD ED Va. Round IV Maria Jacob, AFPD ED Va. (Original Ballroom) 4:30 Complete evaluations and adjourn FDFCDC v FACULTY INFORMATION ROBERT S. BALLOU U.S. Magistrate Judge, Western District of Virginia Education: B.A. 1984, University of Virginia; J.D. 1987, University of Virginia School of Law Professional: Law clerk, Hon. Peter Beer, U.S. District Court, Eastern District of Louisiana, 1987-88; private practice, Christian, Barton, Epps, Brent & Chappell, Richmond, Virginia, 1988-92; private practice, Johnson, Ayers & Matthews, Roanoke, Virginia, 1992-2011; U.S. magistrate judge, Roanoke, Virginia, 2011-present ROBERT L. BOUCHER Social Science Analyst, Defender Services Office, Administrative Office of the U.S. Courts, Washington, DC Education: B.A. 1991, Boston College; M.A. 1992, Stony Brook University; Ph.D. 1997, Stony Brook University Professional: Visiting instructor, Department of Government, University of Notre Dame, 1995-97; visiting assistant professor, Department of Government, American University, 1997-98; director, School of Public Affairs Computer Laboratory, American University, 1998-2001; consultant, ARPC (economic consulting firm), Washington, DC, 2001-10; social science analyst, Defender Services Office, Administrative Office of the U.S. Courts, Washington, DC, 2010-present PATRICK L. BRYANT Appellate Attorney, Office of the Federal Public Defender, Eastern District of Virginia Education: B.A. 1998, Duke University; J.D. 2002, Washington and Lee University School of Law Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2002-04 and 2005-07; law clerk, Hon. FDFCDC vi Charles R. Wilson, U.S. Court of Appeals for the Eleventh Circuit, Tampa, Florida, 2004-05; appellate attorney, Office of the Federal Public Defender, Alexandria, Virginia, 2007-present BEATRICE H. CAPESTANY P h .D. c an d i d at e, Psychology an d Neuroscience Department, Duke University Education: B.A. 2009, Vassar College; M.A. 2015, Duke University; Ph.D. 2017 (expected), Duke University Professional: Teaching assistant, Department of Psychology, Duke University, 2013-15; instructor of record, Department of Psychology, Duke University, 2015-16; guest lecturer, Duke University, 2014-16; co-author of several publications and co-presenter of multiple posters at conferences AARON L. COOK Cook Attorneys PC, Harrisonburg, Virginia Education: B.A., B.S. 1991, Liberty University; J.D. 1994, University of Virginia School of Law Professional: Assistant commonwealth’s attorney, Harrisonburg, Virginia, 1995-2000; private practice, Cook Attorneys, PC, Harrisonburg, Virginia, 2000-present; CJA panel member, 2001-present LARRY M. DASH CJA Case Budgeting Attorney, U.S. Court of Appeals for the Fourth Circuit Education: B.A. 1982, Columbia College (Missouri); J.D. 1989, Touro College, Jacob D. Fuchsberg Law Center Professional: Assistant staff judge advocate, U.S. Air Force, 1991-94; circuit trial counsel, U.S. Air Force, 1994-97; associate, Greg D. McCormack, P.C., Virginia Beach, Virginia, 1997-98; private practice, Newport News, Virginia, 1998-2001; assistant federal public defender, Norfolk, Virginia, 2001-14; CJA case budgeting attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2014-present FDFCDC vii G. ALAN DUBOIS First Assistant Federal Public Defender, Eastern District of North Carolina Education: B.A. 1984, Duke University; J.D. 1987, University of Virginia School of Law Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 1988-89; assistant federal public defender (senior appellate attorney), Raleigh, North Carolina, 1989-2013; first assistant federal public defender, Raleigh, North Carolina, 2013-present ANDREA LANTZ HARRIS Assistant Federal Public Defender, Western District of Virginia Education: B.A. 1988, University of Notre Dame; J.D. 1994, University of Louisville Professional: Solo practitioner, Charlottesville, Virginia, 1995-99; assistant public defender, Charlottesville Public Defender Office, 1999- 2006; assistant federal public defender, Charlottesville, Virginia, 2006-present FREDERICK T. HEBLICH JR. First Assistant Federal Public Defender, Western District of Virginia Education: B.A. 1971, University of Virginia; J.D. 1982, University of Virginia School of Law Professional: Private practice, 1982-2006 (partner, Tucker, Parker & Beskin and Parker, McElwain & Jacobs; also solo practitioner); supervisory assistant federal public defender, Charlottesville, Virginia, 2006-16; first assistant federal public defender, Charlottesville, Virginia, 2016-present; director, Criminal Defense Clinic, University of Virginia Law School, 2002-present FDFCDC viii MARIA N. JACOB Assistant Federal Public Defender, Eastern District of Virginia Education: B.A. 2008, University of Toledo; J.D. 2011, Georgetown University Law Center Professional: Deputy public defender, Office of the Public Defender, Clark County, Nevada, 2011-15; reentry policy analyst, Council of State Governments Justice Center, Bethesda, Maryland, Jan.-Sept. 2016; assistant
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