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Duquesne University School of Law presents

Plea bargaining after Lafler and Frye

February 28 – March 1, 2013

in collaboration with Symposium Schedule

Thursday, February 28, 2013 4:30 p.m. Keynote Address The Honorable W. Louis Sands, United States District Court, Middle District of Georgia 5:30 p.m. Reception, School of Law

Friday, March 1, 2013 9:00 a.m. – 9:30 a.m. Welcome Ken Gormley, Dean of Duquesne University School of Law Introduction Video The Honorable Frank H. Easterbrook, United States Court of Appeals for the Seventh Circuit

9:30 a.m. – 10:20 a.m. Changes to the Plea Process

Plea bargaining after 10:30 a.m. – 12:00 p.m. Lafler and Frye Evaluating the Effectiveness of a Criminal Negotiator

12:00 p.m. – 1:00 p.m. Lunch on your own

1:00 p.m. – 2:25 p.m. The Role of Plea Bargaining in the Criminal Justice System

2:35 p.m. – 3:25 p.m. Is Plea Bargaining Legitimate?

3:35 p.m. – 5:00 p.m. Remedies for Petitioners Plea Bargaining After Lafler and Frye Duquesne University School of Law

Keynote Address Introduction Video

The Honorable W. Louis Sands The Honorable Frank H. Easterbrook United States District Court, Middle District of Georgia Chief Judge, Court of Appeals for the Seventh Circuit

Judge W. Louis Sands is a graduate of the Walter F. George was appointed to the U.S. Court of School of Law, Mercer University. He was appointed to Appeals for the Seventh Circuit in 1985 and has been Chief the court in 1994 and served as Chief Judge from 2001 Judge since 2006. Prior to his appointment to the Seventh to 2006. While Chief Judge, a federal defender program Circuit, Judge Easterbrook was Lee and Brena Freeman was established for the district. Prior to appointment to Professor of Law at the , where he the federal bench, Judge Sands served on the Superior Court of Georgia. is currently a Senior Lecturer in Law. Judge Easterbrook graduated from the While on that court, he was appointed to the Chief Justice’s first commission University of Chicago Law School in 1973. He was an editor of the Law on professionalism and co-chaired the Governor’s Commission on Family Review and a member of the Order of the Coif. Before coming to Chicago, he Violence. He was an assistant district attorney for four years where he attended Swarthmore College, from which he received a degree in 1970 with was major crimes prosecutor. Thereafter, he was an assistant United States high honors and was elected to Phi Beta Kappa. Judge Easterbrook was a law Attorney for nine years. In that position he prosecuted major federal crimes, clerk to Levin H. Campbell of the U.S. Court of Appeals for the First Circuit. including illegal drug trafficking and white collar fraud cases. In private He then joined the Solicitor General’s office, where he served first as assistant practice, Judge Sands was a partner with Mathis, Sands, Jordan and Adams, to the Solicitor General and later as Deputy Solicitor General of the United P.C., where his practice included state and federal criminal defense. Judge States. Judge Easterbrook is interested in antitrust law, criminal law and Sands served on the Judicial Council for the Eleventh Circuit where he procedure, and other subjects involving implicit or explicit markets. He was a chaired the Bankruptcy Committee and was a member of the Personnel member of the S.E.C.’s Advisory Committee on Tender Offers in 1983 and was Committee. He is presently the District Judge Representative for the Eleventh elected to the American Law Institute in the same year and to the American Circuit to the Judicial Conference of the United States. He is a frequent CLE Academy of Arts and Sciences in 1992. Between 1982 and 1991 he was an and seminar speaker in Georgia and nationally. editor of the Journal of . He has written (with Daniel R. Fischel) The Economic Structure of Corporate Law (1991) and has published numerous articles. Plea Bargaining After Lafler and Frye Duquesne University School of Law

Changes to the Plea Process

Moderator

James W. Kraus Susan Klein Partner, Pietragallo Gordon Alfano Bosick & Raspanti, LLP University of School of Law Who Will Monitor Plea Bargaining? JAMES W. KRAUS is a partner in the Pittsburgh office of Pietragallo Gordon Alfano Bosick & Raspanti, LLP, where he Susan Riva Klein, the Alice McKean Young Regents Chair serves as Vice-Chair of the White Collar Criminal Defense in Law at the University of Texas, is a nationally prominent Practice Group. Mr. Kraus concentrates his practice in scholar in the areas of federal criminal law, criminal the areas of white collar criminal defense and internal procedure, and prosecutorial ethics. Her many articles have investigations, health care litigation and financial services litigation. Mr. Kraus appeared in such top journals as the Emory Law Journal, Stanford Law Review, serves as Chair of the Defense Research Institute (DRI) Government Enforcement Michigan Law Review, Texas Law Review, and California Law Review, and and Corporate Compliance Committee (GECC). He also serves as Co-Chair have been cited by the United States Supreme Court. Professor Klein is active of the ’s (ABA) Criminal Justice Section White Collar in educating state and federal judges and prosecutors. She regularly assists the Crime Committee Mid-Atlantic Region Subcommittee. TX District and County Attorneys Association, and is presently Chief Reporter for the judicial committee drafting “The Fifth Circuit Pattern Jury Instructions — Participants Criminal” (West 2001, forthcoming 2013). She also serves on the State Bar of Texas standing committee on Pattern Jury Charges — Criminal, which has thus Nancy J. King far published four volumes of charges (2009-2013). Professor Klein is co-author Vanderbilt Law School of one of the leading federal criminal law casebooks, Abrams, Beale & Klein, Plea Bargains that Waive Claims of Ineffective Assistance Federal Criminal Law and Its Enforcement (West 2009), and 2012 Supplement. Professor Klein clerked by Judge Cynthia H. Hall on the Ninth Circuit Court of Nancy J. King is the Speir Professor of Law at Vanderbilt Appeals, and then served as a trial attorney with the U.S. Department of Justice University Law School. Her solo or co-authored work on the through the Attorney General’s Honor Program. post-investigative features of the criminal process includes the new book Habeas for the Twenty-First Century — Uses, Abuses, and the Future of the Great Writ; two comprehensive criminal procedure treatises; the nation’s leading criminal procedure text book; and dozens of articles and essays. Her original empirical research includes a groundbreaking 2007 study of federal habeas litigation with researchers from the National Center for State Courts, as well as studies of jury misconduct, jury sentencing, guideline sentencing, and appeal waivers in federal plea agreements. She has served the Advisory Committee for the Federal Rules of Criminal Procedure for twelve years (as a member from 2001-07; since 2007 as Assistant Reporter), and regularly participates in federal judicial seminars. Professor King is presently a member of the ALI, and was a member of the ABA Criminal Justice Standards Committee from 2008-2012. At Vanderbilt, she teaches criminal law, criminal procedure, and white collar crime, and chairs the faculty hiring committee. Professor King was Associate Dean of the Law School from 1999-2001, and has received multiple University awards for her research. Plea Bargaining After Lafler and Frye Duquesne University School of Law

of Penn’s Supreme Court Clinic, he litigates a wide range of cases before the Evaluating the Effectiveness of a U.S. Supreme Court and was co-counsel for petitioner in Padilla v. Kentucky, establishing noncitizens’ right to accurate information about deportation before Criminal Negotiator they plead guilty. His academic work was relied upon by Justice Kennedy’s opinion for the court in Lafler v. Cooper, which recognized that ineffective Moderator assistance of counsel in plea bargaining can prejudice a defendant by resulting in a longer post-trial sentence. The Honorable Thomas M. Hardiman Jenny Roberts U.S. Court of Appeals for the Third Circuit American University Washington College of Law What Does It Mean to be an Effective Negotiator? Judge Thomas M. Hardiman was nominated by President George W. Bush to the United States Court of Appeals for Jenny Roberts is a Professor of Law at American University, the Third Circuit on January 9, 2007 and was confirmed by Washington College of Law, where she is Co-Director of the Senate (95-0) on March 15, 2007. Prior to becoming the Criminal Justice Clinic and teaches Advanced Criminal an appellate judge, he served as a trial judge on the United Procedure: Plea Bargaining. Her scholarship explores the States District Court for the Western District of Pennsylvania as of November 1, right to counsel with a focus on plea bargaining, collateral consequences of 2003. Before entering judicial service, Judge Hardiman handled a wide variety criminal convictions, and misdemeanor adjudications. Her articles have been of litigation matters in state and federal trial and appellate courts as a partner at cited by the U.S. Supreme Court, a number of state high and lower federal Reed Smith LLP (1999-2003), a partner at Titus & McConomy LLP (1996-1999), courts, and in numerous briefs to the Supreme Court and other courts. She is and as an associate with its predecessor firm, Cindrich & Titus (1992-1996). A a co-author of Collateral Consequences of Criminal Convictions: Law, Policy graduate of the University of Notre Dame (1987) and Georgetown University And Practice (NACDL/West 2013). Professor Roberts is Co-Vice President of Law Center (1990), Judge Hardiman began his legal career as an associate in the Clinical Legal Education Association, the nation’s largest association of the Washington D.C. office of Skadden, Arps, Slate, Meagher & Flom (1990- law teachers, and sits on the board of the Mid-Atlantic Innocence Project. She 1992). His chambers are in Pittsburgh, Pennsylvania, where he resides with his currently serves as reporter for the National Association of Criminal Defense wife and their three children. Lawyers’ Task Force on the Restoration of Rights and Status After Conviction. Participants Prior to joining the faculty at American, she taught at Syracuse University and in NYU’s Lawyering Program, clerked in the SDNY, and was a public defender in Manhattan. University of Pennsylvania Law School Ronald Wright The Role of Non-Judicial Actors in Defining the Wake Forest School of Law Competent Negotiators Comparatively Evaluating Defense Counsel Stephanos Bibas is a professor of law and criminology at Ronald Wright is the Needham Y. Gulley Professor of the University of Pennsylvania Law School. A graduate of Criminal Law at Wake Forest University. He is the co-author Columbia, Oxford, and Yale Law School, he clerked for of two casebooks in criminal procedure and sentencing. Judge on the U.S. Court of Appeals for the Fifth Circuit His empirical research concentrates on the institutions of and for Justice on the U.S. Supreme Court. After litigating criminal adjudication, including prosecutors’ offices, public defenders, and at Covington & Burling, he served as an Assistant U.S. Attorney for the sentencing commissions. Prior to joining the Wake Forest faculty, he was a trial Southern District of , where he successfully investigated, prosecuted, attorney with the U.S. Department of Justice. and convicted the world’s leading expert in Tiffany stained glass for hiring a grave robber to loot priceless Tiffany windows from mausolea. As director Plea Bargaining After Lafler and Frye Duquesne University School of Law

corporate finance. His work has appeared in a number of top peer-reviewed The Role of Plea Bargaining in the journals and law reviews including the Stanford Law Review, University of Chicago Law Review, University of Pennsylvania Law Review, American Criminal Justice System Economic Journal: Applied Economics, and Journal of Legal Studies.

Moderator Albert Alschuler University of Chicago Law School Mark A. Rush Lafler and Frye: Two Small Band-Aids for a Festering Wound Partner, K&L Gates ALBERT ALSCHULER is the Julius Kreeger Professor of Criminal Law and Criminology Emeritus at the University Mark A. Rush is a partner with K&L Gates and concentrates of Chicago. He also has taught at the Brooklyn Law School, his practice on litigation as a trial lawyer. Mr. Rush has the University of California at Berkeley, the University defended individuals, public and private corporations, of Colorado, , the University of Michigan, New York and public officials who are subjects of federal and state University, , the University of Pennsylvania, the grand jury investigations. Mr. Rush has coordinated and University of San Diego, and the University of Texas. He has written on plea conducted special committee investigations and due diligence projects bargaining, sentencing guidelines, the exclusionary rule, jury selection, police within the United States and in numerous foreign countries. Mr. Rush assisted hunches, confessions, government corruption, Oliver Wendell Holmes, in the representation of a Presidential Advisor in the Independent Counsel William Blackstone, and other topics, most of them in the area of criminal Investigation of President Clinton and as an investigator for the WorldCom justice. He lives in Cumberland, Maine. bankruptcy examiner. He represents the Pennsylvania House Republican Caucus. Mr. Rush was trial counsel in the successful defense of the case of Bruce A. Green United States v. Cyril H. Wecht, No. 06-26 (W.D.Pa.). From 1991-1995, Mr. Fordham Law School Rush served as an Assistant United States Attorney for the Western District of Imagining Plea Bargaining Without Competent Counsel: Pennsylvania. Justice Scalia’s Pursuit of Less Perfect Justice Participants Bruce A. Green is the Louis Stein Professor at Fordham Law David Abrams School, where he directs the Louis Stein Center for Law and Ethics. He teaches and writes primarily in the areas of legal University of Pennsylvania Law School ethics and criminal law, and is involved in various professional activities in Is Plea Bargaining Really a Bargain? these fields. Professor Green currently serves on the Multistate Professional Bar Examination drafting committee and recently chaired the ABA Criminal Justice David Abrams is one of the leading young economists Section. He previously served on the ABA Standing Committee on Ethics and working in empirical law and economics. His work covers a Professional Responsibility, and as the Reporter to both the ABA Task Force range of topics, tied together with the goal of understanding on Attorney-Client Privilege and the ABA Commission on Multijurisdictional and measuring how individuals respond to incentives in Practice. Since joining the Fordham faculty in 1987, Professor Green has also various legal contexts. Criminal justice is one of his major areas of expertise, engaged in various part-time public service, including as a member of the where Abrams has investigated a variety of questions, including whether NYC Conflicts of Interest Board, on the attorney disciplinary committee in longer sentences deter crime, how defendant race impacts judicial decisions, Manhattan, as Associate Counsel in the office of the Iran/Contra prosecutor, to what extent attorney skill affects case outcomes, and how much individuals and as a consultant and special investigator for the NYS Commission on value freedom. Intellectual property is Abrams’s other major area of expertise, Government Integrity. Previously, Professor Green was a federal prosecutor in where he has investigated the expected impact of the America Invents Act, the Southern District of New York, where he served as Chief Appellate Attorney, examined the effect of patent duration on innovation, and is using natural and he was a judicial law clerk to Justice Thurgood Marshall and Circuit Judge language processing to establish more reliable measures of patent value. He James L. Oakes. has additional interests in law and health economics, labor economics, and Plea Bargaining After Lafler and Frye Duquesne University School of Law

Richard Lippke Is Plea Bargaining Legitimate? Indiana University Department of Criminal Justice Plea Bargaining in the Shadow of the Constitution

Moderator Richard Lippke is a Senior Scholar in the Department of Criminal Justice at Indiana University. He is the author of Elliot Howsie three books: Radical Business Ethics (Rowman & Littlefield, Chief Public Defender, Allegheny County 1995), Rethinking Imprisonment (Oxford University Press 2007), and The Ethics of Plea Bargaining (Oxford University Press 2012). Elliot Howsie graduated from Indiana University of He has also published numerous articles on punishment theory, sentencing Pennsylvania, obtaining undergraduate and master’s theory, and the philosophy of criminal law more generally. In addition to degrees in criminal justice. He earned his Juris Doctor Indiana University, he has taught at James Madison University and DePauw in 1998 from Duquesne University School of Law. University. He has been a visiting fellow at the Centre for Criminology at After internships at the Public Defender’s Office and Oxford University and the Centre for Applied Philosophy and Public Ethics at Neighborhood Legal Services, Mr. Howsie began his career as a law clerk Australian National University. for the Honorable Justin M. Johnson of the Pennsylvania Superior Court, and has served the Allegheny County District Attorney’s Office as an Assistant District Attorney. Mr. Howsie has worked as a sole practitioner, specializing in criminal law and personal injury. On March 19, 2012, Mr. Howsie was Remedies for Petitioners appointed as Allegheny County’s first African American Chief Public Defender. As Chief Public Defender, Mr. Howsie manages the office and provides effective legal representation to any indigent person in need of an attorney. Moderator

Participants Lisa B. Freeland Federal Public Defender, Western District of Pennsylvania Gabriel J. Chin University of California, Davis, School of Law Lisa B. Freeland serves as the Federal Public Defender for the Getting to the Merits in Plea Bargaining: Is Professor Stuntz Western District of Pennsylvania, where she administers and Right that Procedure Crowds Out Truth? supervises a staff who represent indigent defendants at all stages of the federal criminal process and in habeas corpus Gabriel “Jack” Chin teaches at the University of California, proceedings. Ms. Freeland received a Bachelor of Arts degree Davis, School of Law where he specializes in criminal law, in Philosophy from Tufts University, and a J.D. from Columbia Law School. immigration and race and law. In Padilla v. Kentucky, 130 S. She also holds a Master of Science degree in Journalism from Columbia Ct. 1473 (2010), the Justices cited his article, “Effective Assistance of Counsel University Graduate School of Journalism. Ms. Freeland served as a law clerk and the Consequences of Guilty Pleas,” five times in opinions agreeing that to the Honorable Timothy K. Lewis, then a member of the Court of Appeals the Sixth Amendment required defense attorneys to advise clients about the for the Third Circuit, and as a Visiting Professor at the University of Pittsburgh possibility of deportation. He served as reporter for the ABA Standards for School of Law before joining the Office of the Appellate Defender in NewY ork Criminal Justice on Collateral Sanctions and Discretionary Disqualification of City, where she handled criminal appeals. Ms. Freeland is a frequent faculty Convicted Persons, and the Uniform Collateral Consequences of Conviction member at local and national CLE programs, speaking regularly on sentencing Act. A member of the ALI, he serves on the Members’ Consultative Group for issues, appellate advocacy, procedural issues in habeas corpus cases, and the Model Penal Code: Sentencing project. His scholarship has appeared in the ethics, among others. She is a native of Pittsburgh and is active in her local UCLA, Cornell, Harvard Civil Rights-Civil Liberties and Penn law reviews, and community, having served on a number of boards, including the Urban the Duke and Georgetown law journals. Before entering teaching, he earned a League of Pittsburgh, Pittsburgh Branch NAACP, and the ACLU of Greater J.D. at Michigan and an LL.M. at Yale, and served as law clerk to U.S. District Judge Richard P. Matsch in Denver. Plea Bargaining After Lafler and Frye Duquesne University School of Law

Pittsburgh. She is also a founding member of the Board of Governors of the Bar Association of the Third Federal Circuit and now serves as board president. David Perez Her practice focuses primarily on criminal appeals and habeas corpus cases. Perkins Coie, Seattle, Washington Ms. Freeland has been counsel in three cases in the United States Supreme Structuring Remedies in the Wake of Lafler and Frye Court in the last several years. David Perez is an attorney at Perkins Coie LLP, handling Participants complex civil litigation and appellate matters. Representative clients include companies in aviation, manufacturing, and Russell Covey technology industries, as well as the financial sector. Mr. Georgia State University College of Law Perez has extensive appellate experience, having worked on briefs at all levels Plea Bargaining Law of state and federal government and having argued in the Ninth Circuit Court of Appeals and the Washington Court of Appeals. Mr. Perez also maintains a Russell Dean Covey, Associate Professor of Law, Georgia robust pro bono practice that focuses on issues related to civil rights, voting State University College of Law. Professor Covey teaches and rights and constitutional law. Prior to joining Perkins Coie, Mr. Perez served writes about criminal law and procedure and is the author of as the Assistant Director of the Fred T. Korematsu Center for Law & Equality numerous articles on plea bargaining. In particular, his work at Seattle University’s School of Law, teaching and filing appellate briefs on focuses on the intersection of innocence and the guilty plea process, exploring issues related to civil rights. While at the Korematsu Center, Mr. Perez also and applying insights from a variety of disciplines, including economics, helped draft the Washington Voting Rights Act. He is a regular contributor to cognitive psychology, and behavioral economics to shed light on the dynamics The Seattle Times and Huffington Post, and has authored “Deal or No Deal? of plea bargaining. Remedying Ineffective Assistance of Counsel During Plea Bargaining,” 120 Yale L.J. 1532 (2011), “America’s Cuba Policy: The Way Forward,” 13 Harv. Latino Law Review 187 (2010), and “The (In)Admissibility of False Confession Expert Wesley M. Oliver Testimony,” 26 Touro Law Review 23 (2010). Mr. Perez received his B.A. from Duquesne University School of Law Gonzaga University and his J.D. from Yale Law School. Toward a Common Law of Plea Bargaining

Wesley M. Oliver is Associate Professor and Director of the Criminal Justice Program at Duquesne University School of Law. He teaches in the areas of criminal law, criminal procedure and constitutional law. His scholarship has examined numerous aspects of criminal law and procedure, including search and seizure, interrogations, material witness detentions, wiretapping, plea bargaining, Prohibition and the history of policing. Oliver hosts a television program titled Crime and Punishment on the Pennsylvania Cable Network and was an NBC News Legal Analyst for the coverage of the criminal proceedings against Jerry Sandusky. He is a frequent commentator on criminal justice issues and has been quoted on a variety of nationally broadcast programs on ABC, CBS, NBC, MSNBC, and NPR, and in most major American newspapers including , Wall Street Journal, and Washington Post. Oliver earned J.S.D. and LL.M. degrees from Yale University and J.D. and B.A. degrees from the University of Virginia and served as a Climenko Fellow and Lecturer on Law at . He is licensed to practice law in Tennessee. School of Law duq.edu/law