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August 9, 2010

_ Adopts Criminal Justice, Preemption and Civil Gideon Policies

Delegates Also Hear from Harvard Law Professor David Wilkins, Witness Gavel Pass

During the afternoon session of Monday’s House of Delegates debate, the policy-making body adopted a series of resolutions dealing with evidence, training and standards, and professional conduct relative to the criminal justice system.  In addition, the association adopted policy addressing the issue of federal preemption and civil Gideon, or a right to counsel in civil matters involving basic human needs.

The house adopted a revised version or a recommendation noting the importance of differentiating between “error” and “prosecutorial misconduct” in criminal court rulings.  Stephen Saltzburg, speaking in favor of the revised recommendation, 100B, noted that if someone accuses a prosecutor of misconduct for simply making a mistake, one’s first reaction is, “That’s really unfair.  Yes, I made a mistake, but that is not misconduct.”  The modified recommendation clarified that the distinction was to be made in criminal cases: “That the _ urges trial and appellate courts, in criminal cases, when reviewing the conduct of prosecutors to differentiate between ‘error’ and ‘prosecutorial misconduct.’”

The association also adopted recommendation 100A, urging the United States Department of Justice to continue its commitment to investigate allegations of professional misconduct on the part of the department’s lawyers; to release as much information as possible about completed investigations, consistent with privacy concerns; and to report any violation of professional ethics rules to appropriate disciplinary authorities.

In addition, among criminal justice measures adopted by the House were recommendations relative to immigration consequences of criminal proceedings, and several measures to urge funding for and advancement of, forensic science disciplines (100D, 100E, 100F), and testing and expert testimony in criminal cases.

The House also urged Congress and federal agencies to be clear in the preemption decision-making process.  In explaining the purpose of the recommendation, Prof. Edward Sherman, chair of the ABA Task Force on Federal Agency Preemption of State Tort Laws, stated, “We have seen the courts struggle to decide when state law must yield to federal law.  The task often comes down to divining intent from materials that provide no useful guidance. With this recommendation, the ABA has assisted the courts in their task by recommending procedures that will bring clarity to the views of Congress and the federal agencies without taking a side on when preemption is desirable.”

The House also listened to extensive and energetic debate relative to civil Gideon, approving a model statue for implementing a civil right to counsel.  Revisions to the recommendation centered on child custody cases, and the needs of such cases from jurisdiction to jurisdiction.

Just before adjourning until Tuesday, the House of Delegates decided to reconsider recommendation 11-2, a proposal to grant separate representation in the House to each of the U.S. territories of American Samoa, the Commonwealth of the Northern Marianas Islands, Guam and the U.S. Virgin Islands, which failed earlier in the day.  The resolution was laid on the table and will be reconsidered during Tuesday’s session, which begins at 8 a.m.

In addition, David B. Wilkins, Harvard Law School, spoke to changes in the profession, including the rise of information technology, globalization of economic activity, and disintegration of 19th century categories of knowledge and organization.  Still, we do not have a global village, said Wilkins; there is no single global law.  “Technology allows distant contact, [but] relationships still matter,” he said.

House of Delegates action is being posted here as it happens.