Amicus Briefs ~ 2010

Abbott v. United States, U.S. Sup. Ct., No. 09-479, decision below, 574 F.3d 203 (3rd Cir. 2009), brief filed 5/7/10, argument 10/4/10. Federal sentencing—Firearms—Drug trafficking—“Crime of violence.” Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Under the express statutory language of 18 U.S.C. §924, the minimum consecutive imprisonment terms specified in §924(c)(1)(A) do not apply where a court sentences the defendant to a greater minimum sentence under another federal statute. Authors: Miguel A. Estrada and David Debold, Gibson, Dunn & Crutcher LLP, Washington, DC.

Allshouse v. Pennsylvania, U.S. Sup. Ct., No. 09-1396, case below 985 A.2d 847 (Pa. 2009), brief filed 6/7/10. Confrontation – Hearsay – Child Witnesses – Caseworker Interviews. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Pennsylvania Association of Criminal Defense Lawyers, and the Public Defender Association of Pennsylvania supporting grant of the petition for certiorari. Argument: Petitioner was convicted in state court of simple assault and endangering the welfare of a child; state supreme court held that a statement by the infant’s four-year-old sister to a county children’s and youth services investigator that petitioner injured the infant’s arm was “nontestimonial” and admissible without violating the Sixth Amendment Confrontation Clause. Statements elicited by government child advocacy investigators are forensic in nature and therefore testimonial, although there is a split in authority on this question. Author: Prof. Jules Epstein, Widener University School of Law, Wilmington, DE.

Al-Turki v. Colorado, U.S. Sup. Ct., No. 09-700, decision below, Al-Turki v. People, 2009 WL 2916999 (Colo. 9/14/2009) (unreported). Jury Selection—Religious Bias of Juror—Challenge for Cause—Voir Dire. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Colorado Criminal Defense Bar in support of the petition for writ of certiorari. Argument: A state jury convicted the petitioner, a Muslim, of a number of charges arising out of alleged abuse of his live-in female housekeeper. Before the jury was sworn, a juror informed the court that he held certain views about Islam that might impair his ability to be fair and impartial. The trial court refused to excuse the juror or allow additional questioning related to his expressed bias. Brief argues that Colorado’s “clear” or “unequivocal” expression of bias standard flouts U.S. Supreme Court precedents and its refusal to acknowledge the “significant likelihood” of bias test or to allow criminal defendants to probe potential invidious prejudices makes the state an outlier. Author: Mark G. Walta, Walta, Gehring, Harms & Dingle LLC, Denver, CO.

Barber v. Thomas, U.S. Sup. Ct., No. 09-5201, consolidated from published and unpublished cases below, see, e.g., Tablada v. Thomas, 533 F.3d 800 (9th Cir. 2008), brief filed 01/21/10. Prisons—Federal imprisonment—Good time credit calculation. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders, the Federal and Public Community Defenders in the United States, Families Against Mandatory Minimums, the American Civil Liberties Union, and Law Deans and Faculty in support of petitioners. Argument: The text of 18 U.S.C. § 3624(B)(1) unambiguously requires that good time credits (GTCs) to be awarded for each year of the sentence imposed, not the time served; if the statute is ambiguous, the rule of lenity requires that the statute be construed in petitioners’ favor and precludes deference to the Bureau of Prisons’ interpretation. Moreover, correctly calculating the GTCs will conserve federal resources and reduce prison overcrowding. Authors: Jeffrey T. Green, Sidley Austin LLC, Washington, DC, et al.See also NACDL’s Good Time Credit page and Stephen R. Sady’s 2002 Champion article, Misinterpretation of the Federal Good Time Statute Costs Prisoners Seven Days Every Year.  

Barbour v. Louisiana, U.S. Sup. Ct., No. 10-689, decision below 35 So.3d 1142 (La.App. 2010), brief filed 12/23/10. Juries—Divided Verdicts—Severe Sentencing--Sixth Amendment—Fair Trial. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petition for Writ of Certiorari. Argument: Non-unanimous verdicts significantly undermine the administration of criminal justice. Rules permitting non-unanimous verdicts have increased the risk of error and unfairness. Because cases presenting these concerns are numerous and recurring, the constitutionality of divided criminal verdicts and the correctness of the Supreme Court’s 1972 decision in Apodaca v. Oregon, 406 U.S. 404 (1972), in which the Court held that the Sixth Amendment does not entitle criminal defendants to a unanimous jury verdict in state court, warrant the Court’s reconsideration. Authors: Jonathan L. Marcus, Elizabeth-Ann D. Katz, and Matthew S. Krauss, Covington & Burling LLP, Washington, DC.

Berghuis v. Thompkins, U.S. Sup. Ct., No. 08-1470 , decision below 547 F.3d 572 (6th Cir. 2008), brief filed 1/26/10, argument scheduled 3/1/10. Self-incrimination—Miranda Rule—Waiver. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the American Civil Liberties Union in support of respondent Van Chester Thompkins. Argument: Prior to a 2 ½ hour interrogation, Thompkins was read his Miranda rights and acknowledged that he understood them. Although he did not formally invoke his right to remain silent, he remained virtually silent throughout questioning until finally a detective testified that he asked Thompkins whether he had asked God to forgive him for “shooting that boy down,” and he answered “yes.” Brief argues that Thompkins effectively invoked his right to remain silent by remaining silent during the interrogation and that any “implied waiver” of that right must occur much more quickly than the purported waiver on these facts. Authors: Jonathan L. Abram, et al., Hogan & Hartson LLP, Washington, DC.

Bullcoming v. New Mexico, U.S. Sup. Ct., No. 09-10876, decision below 226 P.3d 1 (N.M. 2010), brief filed 12/6/10, argument 3/2/11. Confrontation Clause—Hearsay—DWI/Blood alcohol testing—Gas chromatography. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New Mexico Criminal Defense Lawyers Association in support of petitioner. Argument: At the petitioner’s trial for driving while intoxicated, the prosecution called an analyst who took no part in the testing of petitioner’s blood for alcohol content; the New Mexico Supreme Court held that blood alcohol analysis was a simple test in which the presence of the actual analyst was not necessary to interpret the results. This often-technical brief argues that blood alcohol testing using gas chromatography (GC) for analyzing blood alcohol involves exercise of the analyst’s judgment in interpreting results that presents a risk of error that can be discovered only through cross-examination of the analyst who ran the test; a proper cross-examination would include questions that only the actual analyst could answer. Authors: Barbara E. Bergman, Univ. of New Mexico School of Law, Albuquerque, et al.

Chevron Corp. v. Berlinger, 2nd Cir., Nos. 10-1918 & 10-1966, brief filed 6/23/10, argument scheduled 7/14/10. Subpoenas – Privileges – Media. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellees Rodrigo Perez Pallares and Ricardo Reis Veiga urging affirmance of the district court’s order. Chevron Corp. and filmmaker Joseph Berlinger are involved in ongoing litigation dating back to 2003, when the Ecuadorian plaintiffs filed a class action lawsuit in Ecuador. Also in 2003, the Ecuadorean government filed criminal charges against Chevron and two of its lawyers, Pallares and Veiga. In 2005, a lawyer for the plaintiffs hired independent filmmaker Joseph Berlinger to make a documentary of the litigation from the plaintiff’s point of view, amassing some 600 hours of outtake footage not used in the final film, Crude. Pallares and Veiga seek to subpoena the outtakes in support of their defense in a criminal trial in Ecuador; Ballinger asserts in federal court that his outtakes are protected by a “reporter’s privilege” (which does not exist per se in federal court, see, e.g., In re: Grand Jury Subpoena (Judith Miller), 397 F.3d 964 (D.C. Cir. 2005)). Argument: Assuming arguendo that Berlinger has a sufficient nexus to newsgathering to assert whatever journalists’ privilege does exist, it does not outweigh Pallares’s and Veiga’s due process right to obtain non-confidential information helpful to their defense in criminal proceedings. Because the subpoena is patently reasonable under the circumstances, the court of appeals should affirm the district court’s order enforcing the subpoena. Authors: John D. Cline and K.C. Maxwell, San Francisco, CA.

Connick v. Thompson, U.S. Sup. Ct., No. 09-571, decision below, 578 F.3d 293 (5th Cir. 2009), brief filed 8/10/10. Civil rights—Municipal liability—Prosecutors—Failure to disclose Brady material. Prosecutors in the Orleans Parish, La., district attorney’s office deliberately withheld exculpatory evidence from the plaintiff, a former defendant in a criminal case, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and the office was found liable for failure to train its prosecutors in their Brady obligations. Brief argues that a “single violation” is sufficient to incur municipal liability (“Canton liability”) for failure to train prosecutors in their Brady disclosure obligations. Authors: Joel B. Rudin, New York, NY; Joshua L. Dratel, Washington, DC.

Dolan v. United States, U.S. Sup. Ct., No. 09-367, decision below 571 F.3d 1022 (10th Cir. 2009), brief filed 3/2/10, argument 4/20/10. Sentencing—Restitution—Statutory Time Limit.Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Allowing a sentencing court to enter a restitution order under the Mandatory Victims Restitution Act’s more than 90 days after sentencing, the time limit prescribed in 18 U.S.C. §3664(d)(5), deprives the defendant of important procedural protections, creates uncertainty as to timely appeal, and also negatively affects victims and the courts. Authors: Jonathan Marcus, et al., Covington & Burling LLC, Washington, DC and Peter Goldberger, Ardmore, PA.

Duncan v. State of Michigan, Supreme Court of Michigan, case below 284 Mich.App.246 (Ct. of Appeals, 2009). Sixth Amendment---Indigent Defense---Strickland. Brief dated March 26, 2010. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, Brennan Center for Justice at New York University School of Law, NAACP Legal Defense & Education Fund, and The Constitution Project. Argument: The right to effective assistance of counsel under the Sixth Amendment, and the Michigan State constitutional analogue is broader than the right to assistance at trial and requires more than the mere appointment of counsel. The Strickland post-conviction remedial standard is the wrong standard in a class action seeking prospective relief to halt and prevent system-wide deficiencies in how Michigan meets its constitutional obligation to provide indigent defendants effective assistance of counsel. The right to effective assistance of counsel is cognizable prospectively. The failure to provide adequate indigent defense services disproportionately burdens communities of color. Authors: David F. DuMouchel, Laurie J. Michelson, Mary M. Mullen, BUTZEL LONG, A professional corporation, Detroit, MI.

Elliott v. State, Md., No. 24, argument, 10/8/10. Informants—Discovery—Right to Present Defense. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: In deciding whether to disclose the identity of a government’s confidential informant, Roviaro v. United States, 353 U.S. 53 (1957) compels the trial court to rigorously balance the competing interests of both the government and the defendant. When the courts fail to apply this test, erroneous convictions and corruption of the justice system may result: the use of confidential informants undermines the truth-seeking function of criminal trials, increases the chance of wrongful convictions, and fosters an environment where corrupt practices can thrive. To protect against these dangers, the Roviaro balancing test must be rigorously applied, with an eye to the rule that disclosure is required when the informant is not a mere “tipster” but rather a participant, accessory, or material witness to the offense charged, in that his testimony is important to a fair determination of the case. Authors: Mitchell Y. Mirviss, Michael Schatzow, Andrew Paul Kawel, Venable LLP, Baltimore, MD, and Malia Brink, NACDL, Washington, DC.

Harrington v. Richter, U.S. Sup.Ct., No. 09-587, decision below 578 F.3d 994 (9th Cir. 2009), brief filed 7/14/10, decided 1/19/11 (reversed). Habeas Corpus—Ineffective Assistance of Counsel—AEDPA—Deference to State Court Decisions. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondent. Argument: AEDPA deference to a state court’s summary disposition does not apply in an ineffective assistance of counsel claim because the plain language of 28 U.S.C. §2254(d) authorizes deferential treatment only after that decision has been subjected to the analyses prescribed in (d)(1) and (d)(2). Where the state court’s decision fails to provide the information necessary to facilitate those analyses, however, the process Congress prescribed cannot be carried out. Held: Section 2254(d) applies to respondent Richter’s habeas petition, even though the state court’s order was unaccompanied by an opinion explaining the court’s reasoning. Authors: John H. Blume and Keir M. Weyble, Cornell Law School, Ithaca, NY.

Hurrell-Harring v. New York, New York Court of Appeals, case below 66 A.D.3d 84 (3rd Dept. 2009). Sixth Amendment---Indigent Defense---Strickland. Brief dated February 2, 2010. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Bar Association, the New York State Association of Criminal Defense Lawyers, the New York County Lawyers’ Association, Louis Stein Center for Law and Ethics at Fordham University School of Law, Jacob Burns Center for Ethics in the Practice of Law at Benjamin N. Cardozo School of Law, Criminal Justice Center at Pace University School of Law, Center on Latino and Latina Rights and Equality at CUNY School of Law, and 40 New York law professors from all 15 law schools in New York State. Argument: The decision of the Appellate Division, Third Department should be reversed. The right to effective assistance of counsel under the Sixth Amendment, and the New York State constitutional analogue (Art. I, Sec. 6) is broader than the right to assistance at trial and requires more than the mere appointment of counsel. The Strickland post-conviction remedial standard is the wrong standard in a class action seeking prospective relief to halt and prevent system-wide deficiencies in how New York meets its constitutional obligation to provide indigent defendants effective assistance of counsel. The right to effective assistance of counsel is cognizable prospectively. Authors: Susan J. Walsh, Moskowitz, Book & Walsh, LLP, New York, NY; Norman L. Reimer and Ivan J. Dominguez, NACDL, Washington, DC.

J.D.B. v. North Carolina, U.S. Sup.Ct., No. 09-11121, decision below 686 S.E.2d 135 (N.C. 2009), brief filed 12/23/10, argument TBA. Juveniles—Interrogation—Miranda. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Question presented: Whether a court may consider a juvenile’s age in a Miranda custody analysis in evaluating the totality of the circumstances and determining whether a reasonable person in the juvenile’s position would have felt he or she was not free to terminate police questioning and leave. Argument: The age of the person questioned may, consistent with Miranda, be part of the custody analysis; considering age as part of the custody inquiry does not impose any burdens on law enforcement and is consistent with Miranda’s policy goal to provide clear guidelines to law enforcement. Authors: Jeffrey T. Green, Mark D. Hopson, Stephanie P. Hales, Sidley Austin, Washington, D.C.

Maples v. Allen, U.S. Sup. Ct., No. 10-63, case below 586 F.3d 879 (11th Cir. 2009). Death Penalty—Habeas Corpus—Procedural Default—Adequate State Grounds. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Facts: The petitioner, a death row inmate, did not receive notice of an Alabama state court order denying his claims of federal constitutional error because the order was erroneously sent to an out of state law firm which returned it unopened. The state then waited until the time for appeal had elapsed before notifying the petitioner of the order, and the petitioner missed the deadline for his state court appeal. The U.S. Court of Appeals for the Eleventh Circuit held that the state’s application of its procedural rule barring the petitioner’s state appeal as untimely was constitutionally adequate and thus federal habeas review should be denied. Argument: Certiorari should be granted because the petitioner was blameless for the default and the state’s own conduct contributed to the default; this case should be considered in light of Martin v. Walker, No. 09-996, decided 02/23/11. Authors: Lisa S. Blatt, Anthony J. Franze and Michael Tye, Arnold & Porter, Washington, D.C.

Michigan v. Bryant, U.S. Sup. Ct., No. 09-150, decision below, 768 N.W.2d 65 (Mich. 2009), brief filed 6/23/10, argument 10/5/10. Witness statements—Hearsay—Confrontation Clause. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Statements to police accusing a person of a crime and describing the offense after its completion are testimonial in nature and do not fall outside the Confrontation Clause even though the suspect remains at large or has been injured. Author: Robert K. Kry, MoloLamken LLP, Washington, DC.

Pendergrass v. Indiana, U.S. Sup. Ct., No. 09-866, decision below 913 N.E.2d 703 (Ind. 2009), brief filed 2/22/2010. Forensic analysis—Supervisor Testimony—Hearsay—Confrontation. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant’s petition for certiorari. Question presented: Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements. Authors: Sarah O’Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL and Jeffrey T. Green, Sidley Austin LLP, Washington, DC.

Pepper v. U.S., U.S. Sup. Ct., No. 09-6822, decision below 570 F.3d 958 (8th Cir. 2009), brief filed 9/7/2010, decided 03/07/11. Booker--Resentencing—Rehabilitation. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Argument: The Court should excise Section 3742(g)(2) from the Sentencing Reform Act of 1984 and hold that 18 U.S.C. Section 3553(a) permits district courts to consider post-sentencing rehabilitation at resentencing proceedings. Authors: Matthew M. Shors and Sara Zdeb, O’Melveny & Myers LLP, Washington, DC, and Sandeep Solanki, O’Melveny & Myers LLP, San Francisco, Calif.

Phillips v. Artus, 2nd Cir., Nos. 06-3350, etc., brief filed 06/17/10. Amicus curiae brief of the New York State Association of Criminal Defense Lawyers (NYSACDL) and the National Association of Criminal Defense Lawyers (NACDL) in support of habeas petitioners on rehearing en banc. Amici urge the en banc court to uphold the panel decision in Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010), which held that New York's persistent felony offender sentencing scheme's provision that a court, not a jury, make the necessary fact findings to support enhanced sentences runs afoul of the Sixth Amendment right to trial by jury, as applied to the states by the Fourteenth Amendment. Authors: Marshall A. Mintz, Mintz & Oppenheim LLP, New York, NY and Richard D. Willstatter, Green & Willstatter, White Plains, NY.

Robertson v. United States ex rel. Watson, U.S. Sup. Ct., No. 08-6261, decision below 940 A.2d 1050 (D.C. 2008), brief filed 2/4/10, argument 3/31/10. “Private prosecutions”—Criminal contempt—Domestic violence. NACDL amicus curiae brief in support of petitioner. Argument: Defendant entered a global plea bargain with the U.S. Attorney’s Office in District of Columbia Superior Court Criminal Division to assaulting his former girlfriend. Subsequently, his former girlfriend, acting as a private prosecutrix, asked the D.C. Superior Court Family Division to hold him in criminal contempt for the same incident. After a bench trial, the defendant was also convicted of criminal contempt of the Family Division protection order. The U.S. Attorney’s Office argued that its plea agreement with the defendant could not bind the private prosecutrix. The brief argues that domestic violence is a crime against the state and that criminal contempt prosecutions are offenses against the sovereign, properly brought by the government, not private prosecutors. Authors: Blair G. Brown, Cory T. Way and Benjamin L. Krein, Zuckerman Spaeder LLP, Washington, D.C.

Salahi v. Obama, D.C. Cir., No. 10-5087, brief filed 06/16/2010. Habeas Corpus – Admissibility of Statements Obtained by Coercion or Torture. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner – Appellee Mohamedou Ould Salahi urging affirmance of the district court’s decision granting habeas petitioner’s plea for release from Guantanamo Bay Naval Station, Cuba. Argument: Mr. Salahi, detained by the United States since November 2001 on suspicion of involvement in the failed “Millennium Plot” to bomb the Los Angeles International Airport, has been subjected to repeated torture and other mistreatment as part of a sustained program of highly coercive interrogation. His coerced statements, therefore, cannot provide a basis for detention as a matter of law because they are unreliable, as the district court correctly determined. Furthermore, because Mr. Salahi’s original statements were obtained through torture, his subsequent statements lie in the shadow of that torture and coercion, are equally unreliable, and therefore cannot be used to sustain his detention. Authors: David R. Berz, Weil Gotshal & Manges LLP, Washington, DC; Gregory Silbert, Jennifer H. Wu, Ritu Pancholy, Weil Gotshal & Manges LLP, New York, NY; and Michael W. Price, NACDL, Washington, DC.

Smith v. United States, U.S. Sup. Ct., No. 10-18, decision below, 68 M.J. 445 (C.A.A.F. 2010), brief filed 7/30/10. Confrontation Clause – Cross-examination – Accuser’s motive to falsify. Amicus curiae brief of the National Association of Criminal Defense Lawyers supporting grant of the petition for certiorari. Argument: There is a conflict in the federal circuits as to whether a trial court’s restriction of a defendant’s ability to cross-examine his accuser is to be reviewed de novo on appeal or for abuse of discretion; the Court of Appeals for the Armed Forces reviews a military judge's decision to admit or exclude evidence for an abuse of discretion. The Court should resolve this conflict because it implicates an issue of fundamental importance, the scope of a defendant’s constitutional right to confront his accusers. Authors: Jonathan L. Marcus, Gregory M. Lipper and Jennifer Reid Whitfield, Covington & Burling, Washington, DC.

Turner v. Price, No. 10-10. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Brennan Center for Justice, and the National Legal Aid and Defender Association in support of granting the petition, filed 8/5/10. Authors: Stephen J. McConnell, Meghan Rohling Kelly, Christina S. Keddie and David S. Caroline, Dechert LLP, Philadelphia, PA.

Turner v. Rogers (Turner v. Price), U.S. Sup. Ct., No. 10-10, cert. granted 11/1/10, brief filed 1/11/11. Argument 3/23/11. Right to Counsel—Indigents—Contempt—Child support nonpayment proceedings. Amicus curiae brief the National Association of Criminal Defense Lawyers, the Brennan Center for Justice, the National Legal Aid and Defender Association, the Southern Center for Human Rights and the American Civil Liberties Union is support of petitioner. Argument: Providing counsel to an indigent individual facing jail time in a civil contempt hearing is essential to prevention of wrongful incarceration. Indigent contemnors lack the courtroom skills to effectively represent themselves in complex proceedings; presence of counsel helps to ensure that only willful contemnors are incarcerated. The Supreme Court should provide clear guidance to the states that the Constitution requires appointment of counsel whenever personal liberty is threatened; appointment of counsel for alleged contemnors will ensure due process and help prevent wrongful incarcerations without imposing a significant burden upon the states. Authors: Stephen J. McConnell, Meghan Rohling Kelly, Christina S. Keddie and David S. Caroline, Dechert LLP, Philadelphia, PA.

United States v. Berger, 9th Cir., No. 08-50171, brief filed 01/21/10. Federal sentencing guidelines—Securities fraud—Loss calculation. NACDL amicus curiae brief in support of petition for rehearing or rehearing en banc. Argument: A defendant should not be punished based on victims’ losses that were not proximately caused by the defendant’s wrongdoing. For example, losses resulting from a general downturn in the relevant market (e.g., securities, real estate, currency), unforeseeable intervening events, or manipulation of the time period used by prosecutors to compute victims’ losses. The panel decision misapprehends the Supreme Court’s decision in Dura Pharmaceuticals, Inc. v. Broudo (2005), causing it to reject decisions of the Second and Fifth Circuits citing Dura in discussing loss causation in securities fraud cases; if left uncorrected, the panel opinion will effect a circuit split on an issue as to which there is no substantive disagreement and deter sentencing courts from adopting a reasonable economic approach to calculating loss under the federal sentencing guidelines in securities fraud cases. Authors: William J. Genego, Nasatir, Hirsch, Podberesky & Genego, Santa Monica, CA, Evan Jenness, Santa Monica, CA, Sheryl Gordon McCloud, Seattle, WA.

United States v. Blazier, C.A.A.F., No. 09-0441/AF, brief filed 05/13/10. Experts – Sixth Amendment Confrontation Clause – Forensic Lab Reports – Military Rules of Evidence. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant. Argument: The defendant’s confrontation right precludes the use of drug testing lab “litigation packages” and surrogate expert witnesses (witnesses who testify not no first-hand knowledge of the facts, but as to the hearsay reports and opinions of others); admission of the drug test report materials at defendant’s trial pursuant to Military Rule of Evidence 803(6) violated his Sixth Amendment right to confront witnesses against him; opinions offered by the prosecution under M.R.E. 703 cannot satisfy the requirements of the Confrontation Clause when the underlying facts or data come from a nontestifying person or entity. Author: Donald G. Rehkopf Jr., Brenna, Brenna & Boyce PLCC, Rochester, NY.

United States v. Cioni, 4th Circuit, No. 09-4321, brief filed 8/5/10. Double Jeopardy – Computer Fraud and Abuse Act – Stored Communications Act. Amicus curiae brief of the Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers in support of appellant. Argument: When a person accesses another’s stored email without authorization, that single act may not be the basis for both an underlying misdemeanor and a felony enhancement. Ordinarily, first offenses under the Computer Fraud and Abuse Act and the Stored Communications Act are misdemeanors, unless committed for, among other things, in furtherance of another crime. In this case, the defendant’s CFAA offense, unauthorized access to stored email, was not committed “in furtherance of” an SCA violation, because both convictions were based on the same conduct. The government’s attempt to count the same conduct as both an underlying misdemeanor and as the basis for a felony conviction violates the Double Jeopardy Clause. Authors: Lee Tien, Jennifer Stisa Granick and Marcia Hofmann, Electronic Frontier Foundation, San Francisco, CA and Thomas Maher, North Carolina Office of Indigent Services, Durham, NC.

United States v. El-Mezain. et al. (Holy Land Foundation for Relief and Development), 5th Cir., No. 09-10560, brief filed 10/26/2010. Confrontation—Sixth Amendment—Anonymous Witnesses. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Two witnesses who testified at trial were allowed to keep their identities secret while offering crucial testimony on behalf of the government. One, a purported member of the Israeli Security Agency, was offered as an expert witness with supposed expertise on Palestinian zakat committees and their connections to Hamas. He was not just anonymous to the jury or the public, but unknown to the defendants and their attorneys. The defense was thus deprived of any opportunity to investigate and cross-examine him regarding his background, stated experience, reputation in his field of expertise, reputation for honesty, still unknown biases against defendants, or any other information that might cause the jury to view his testimony in a different light. Anonymous testimony violates the Sixth Amendment’s Confrontation Clause; at a minimum defense counsel must know the identity of testifying witnesses; in particular, research into an expert witness’s background can reveal damning biases and conflicts of interest which powerfully discredit the expert. Authors: Jean-Jacques Cabou and Joseph N. Roth, Osborn Maledon, PA, Phoenix, AZ and Barbara Bergman, Univ. of New Mexico School of Law/NACDL, Albuquerque, NM.

United States v. Kerik, 2nd Cir., No. 10-0865, brief filed 10/04/10. Sentencing—Public Statements—First Amendment—Right to Remain Silent—Fifth Amendment. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant-appellant. Punishing speech critical of public officials and public conduct without compelling justification erodes core constitutional values, and punishing a criminal defendant for the speech of his supporters was an improper ground for increasing the defendant’s sentence and chills critics’ First Amendment rights. Likewise, punishing the defendant for failure to disavow statements by his supporters criticizing the prosecution in his case was also an improper ground for increasing his sentence, and impinges on the defendant’s Fifth Amendment right to remain silent. Authors: Susan E. Brune and Mary Ann J. Sung, Brune & Richard LLP, New York, New York.

United States v. MacDonald, 4th Circuit, No. 08-8525, brief filed 6/15/10, vacated and remanded 4/19/11. Habeas Corpus – Actual Innocence – Newly Discovered Evidence. Amicus curiae brief of the Innocence Project, the North Carolina Center on Actual Innocence, the New England Innocence Project, and the National Association of Criminal Defense Lawyers in support of petitioner-appellant Jeffrey R. MacDonald. In 1979, Jeffrey R. MacDonald was convicted in the Eastern District of North Carolina of the 1970 murders of his wife and their two young daughters in the family’s Fort Bragg home. MacDonald – who has steadfastly maintained that he is innocent of those horrific crimes – ultimately failed to have his convictions overturned on direct appeal and has since filed numerous motions for post-conviction relief. Argument: The district court erred when it (1) ignored uncontroverted evidence that the trial AUSA intimidated a defense witness and lied about it to the trial judge, and (2) holding that additional prefiling authorization was required to allow the petitioner to introduce exculpatory DNA evidence. The evidence as a whole establishes that no reasonable fact finder would have found him guilty under 28 U.S.C. §2244(b)(2)(B)(ii) or any other standard. Authors: Andrew Good, Philip Cormier and Harvey Silverglate, Goodwin Proctor LLP, Boston, MA, et al. 4th Circuit Decision 04/19/2011.

United States v. Nagle, 3rd Cir., No. 10-3974, brief filed 11/24/10. Jurisdiction—Mandamus—Interlocutory Appeal by Government. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Pennsylvania Association of Criminal Defense Lawyers in support defendant-appellee. Argument: The court of appeals does not have jurisdiction under 28 U.S.C. §1291 over government appeals in a pending criminal case, and the government has no “clear and indisputable right to relief” on mandamus to overturn a discretionary decision based on circuit precedent. Authors: Lawrence Lustberg, Newark, NJ, and Peter Goldberger, Ardmore, PA.

United States v. O’Brien, U.S. Sup. Ct., No. 08-1569, decision below 542 F.3d 921 (1st Cir. 2008), brief filed 01/21/10, argument 02/23/10. Sentencing—Mandatory minimums—Firearms—Machinegun. Amicus curiae brief of Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers. Argument: Under Apprendi v. New Jersey (2000), if a sentence would be unreasonable absent a particular fact neither found by the jury or admitted by the defendant, the sentence would violate the defendant’s Sixth Amendment jury trial right; in the instant case, whether the defendant brandished a “machinegun” during a robbery, triggering a 30-year mandatory minimum sentence, must be treated as an element of the offense. Authors: Samuel J. Buffone and Aaron M. Katz, Ropes & Gray LLP, Washington, DC.

United States v. Treacy, 2nd Cir., No. 09-3939-cr, brief filed 2/4/10. Sixth Amendment/Confrontation Clause—Reporter’s Privilege. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers in support of appellant. Argument: Newspaper reporter was called by government to explain quotes attributed to defendant regarding backdating of stock options, and the trial court overruled the reporter’s motion to quash his subpoena on reporter’s privilege ground. However, when defendant sought to cross-examine reporter, the court deferred to the reporter’s claim of privilege and dictated a few open-ended questions the court would permit defense counsel to ask. The process denied defendant’s fundamental Sixth Amendment right to confront the witness and challenge the government’s evidence. Authors: Joel B. Ruden, New York, NY, and Richard D. Willstatter, Green & Willstatter, New York, NY.

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