Amicus Briefs ~ 2006

Al-Marri v. Wright, 4th Circuit, No. 06-7427. NACDL Amicus Curiae brief in Opposition to Respondent’s Motion to Dismiss, filed December 19, 2006. Habeas corpus – Exercise of Military Authority Over a Resident Alien. Argument: Congress intended to bar habeas petitions only from aliens subject to Combatant Status Review Tribunal (CSRT) determinations. The government’s contrary construction is inconsistent with the structure and language of the statutes and the legislative history and canons of statutory interpretation. Because the government has no authority to detain Al-Marri or subject him to a CSRT, he is not “awaiting determination.” The government’s inconsistent and abusive conduct of previous enemy combatant detentions demonstrates the importance of judicial review. Authors: Timothy J. Finn, Julia E. McEvoy and Katherine E. Stern, Jones Day.

Abdul-Kabir v. Quarterman, U.S. Sup. Ct., Nos. 05-11284 & 05-11287, brief filed 11/27/06, argument 1/17/07. Evidence – capital case mitigation. Amicus curiae brief of the Child Welfare League of America, the Juvenile Law Center, and NACDL in support of petitioners. Argument: Evidence of an adverse childhood or adolescence – including evidence of child abuse, neglect, domestic violence and mental illness – is relevant evidence during the penalty phase of a capital case. The link between the harm cause by childhood trauma and subsequent antisocial or criminal behavior is reflected in state and federal laws, and jurors must be allowed to consider the relevance of the defendant’s victimization as a youth. Authors: Jeffrey J. Pokorak, et al., Suffolk Univ. Law School, Boston, MA.

Brendlin v. California, No. 06-8120, lower court opinion, 136 P.3d 845 (Cal. 2006), cert. granted, January 19, 2007. Brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders. Question presented: Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop; arguing that a vehicle passenger is "seized" until he receives some objective indication that he is free to leave and it is safe for him to do so. Authors: Jon Nuechterlein, et al., Wilmer Hale, Washington, DC.

Brigham City, Utah v. Stuart, No. 05-502, brief filed 03/28/06. Questions presented: (1) Does the "emergency aid exception" to the warrant requirement recognized in Mincey v. Arizona, 437 U.S. 385 (1978), turn on an officer's subjective motivation for entering the home? (2) Was the gravity of the "emergency" or "exigency" sufficient to justify, under the Fourth Amendment, the officers' entry into the home? Authors: Jonathan D. Hacker and Shannon M. Pazur, O’Melveny & Myers LLP.

Bowles v. Russell, No. 06-5306, decision below, 432 F.3d 668 (6th Cir. 2006), cert. granted, 12/7/06, brief filed 1/22/07. NACDL amicus brief in support of petitioner. Question presented: Whether an appellate court may sua sponte dismiss an appeal which has been filed within the time limitations authorized by a district court after granting a motion to reopen the appeal time under Rule 4(a)(6) of the Federal Rules of Appellate Procedure. Brief argues that FRAP 4(a) is not jurisdictional and that an appeal filed in compliance with a court-ordered deadline should not be dismissed, particularly absent a timely objection. Authors: Amy Howe and Kevin Russell, Howe and Russell, Washington, DC.

Burton v. Waddington, U.S. Sup. Ct., No. 05-9222, brief filed 8/28/06, argument 11/07/06. Retroactivity. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Washington Association of Criminal Defense Lawyers. Argument: Blakely v. Washington, 530 U.S. 466 (2004), is a “watershed” rule of criminal procedure which exempts it from the retroactivity bar of Teague v. Lane, because a sentencing fact which increases the statutory maximum must be found beyond a reasonable doubt, which goes to the heart of the guilt/innocence determination. Author: Sheryl Gordon McCloud, Seattle, Wash.

Carey v. Musladin, U.S. Sup. Ct., No. 05-785, brief filed 8/21/06, argument 10/11/06. Habeas corpus. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: The court of appeals properly overturned Musladin’s murder conviction on the ground that family members in the courtroom wearing buttons depicting the deceased during the guilt phase of the trial constituted an impermissible outside influence on the jury. Authors: Jonathan D. Hacker and Nilam A. Sanghvi, O’Melveny & Myers, Washington, D.C.

Claiborne v. United States & Rita v. United States, U.S. Sup. Ct., Nos. 06-5618 & 06-5754, filed 12/18/06, argument 2/20/07. Federal Sentencing Guidelines, Post-Booker. NACDL Amicus curiae brief in support of the petitioners, combining questions presented: Is it consistent with the Supreme Court’s decision in United States v. Booker (2005), either to require that a sentence which constitutes a substantial variance from the sentencing guidelines be justified by extraordinary circumstances or to presume that a within-the-guidelines sentence is “reasonable”? Authors: Miguel A. Estrada and David Debold, Gibson, Dunn & Crutcher LLP, Washington, DC.

Campbell v. North Dakota, No. 06-664, lower court opinion: 719 N.W.2d 374 (N.D. 2006). Amicus brief Law Professors Paul C. Gianelli, Pamela Metzger, and Andrew E. Taslitz, NACDL, the Innocence Project and the Public Defender Service for the District of Columbia. Cert. denied, January 22, 2007. Question: whether the prosecution can prove the forensic part of its case by affidavit -- by introducing crime lab reports without putting the author on the stand -- so long as the defense is given the opportunity to call the lab analyst to the stand as a defense witness. Requiring the defense to bear the burden of presenting evidence regarding a central component of the prosecution’s case, evidence that is created by a paid agent of the government for trial, is antithetical to our adversarial system of criminal justice. Authors: Timothy O’Toole, et al., D.C. Public Defender Service, Washington, D.C.

Cunningham v. California, U.S. Sup. Ct., No. 05-6551, filed 05/08/06. NACDL Amicus curiae brief in support of petitioner arguing that California’s sentencing scheme contravenes the rule set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). Question presented: Whether California’s Determinate Sentencing Law, by permitting sentencing judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments. Authors: Jeffrey L. Fisher, Pamela S. Karlan, Thomas C. Goldstein, Amy Howe, Kevin K. Russell.

Dixon v. United States, U.S. Sup. Ct., No. 05-7053, filed 02/27/06. Amicus Curiae brief of the NACDL and the National Clearinghouse for the Defense of Battered Women, arguing that where the defendant raises the well-established defense of acting duress, the government bears the burden of proving beyond a reasonable doubt that the defendant did not act under duress. Authors: Elliot Scherker, et al. 

Garcetti v. Ceballos, U.S. Sup. Ct., No. 04-473. First Amendment. Joint Amicus curiae brief filed by NACDL, ACLU, and the American Civil Liberties Union of Southern California. Whether prosecuting attorney’s internal memorandum recommending case be dismissed on police misconduct grounds, for which he was subsequently punished, was protected speech under the First Amendment. Authors: Michael C. Small, et al. 

Hamdan v. Rumsfeld (Hamdan II), U.S. Sup. Ct., No. 05-184. NACDL Amicus Curiae brief before the Supreme Court of the United States arguing that (1) military commissions were first created during the Mexican-American War in areas of Mexico where there were no functioning civilian courts; (2) the President has no “inherent” presidential authority to create or convene the current military commissions, before which petitioner Salim Ahmed Hamdan is a defendant; and (3) per the Manual for Courts Martial (1917), “United States Courts may, on writ of habeas corpus, inquire into the legality of detention of a person held by military authority, at any time, either before or during trial or while serving sentence….” Excellent history of military authority over civilians in time of war and peace. Author: Donald G. Rehkopf, Jr., Brenna & Brenna, PLLC, Rochester, NY.

Hudson v. Michigan, 126 S.Ct. 2159 (2006). LOSS (5-4). Search and seizure. Police entered petitioner’s home and executed search warrant in acknowledged violation of the “knock and announce” rule. Justice Scalia, writing for the majority, decided that the “social costs” of the exclusionary rule – such as the possible release of “dangerous criminals” – are too high to justify suppression as a remedy for failure to knock and announce. The majority offered in dicta, and with a straight face, that the possibility that aggrieved persons could file a civil rights suit against the police should be a sufficient deterrent against this type of misconduct. Author: Prof. Tracey Maclin.

Lawrence v. Florida, U.S. Sup. Ct., No. 05-8820, brief filed 6/26/06, argument 10/31/06. Death penalty/Habeas corpus (AEDPA). Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: An application for state post-conviction or other collateral review is “pending” under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(2), while the U.S. Supreme Court is deciding whether to grant certiorari review of the case. Even if the statute is unclear, any ambiguity should be decided in favor of the petitioner. Authors: Matthew M. Shors, Charles E. Borden and Steven E. Swaney, O’Melveney & Myers LLP, Washington, D.C.

Lopez v. Gonzales, U.S. Sup. Ct., Nos. 05-547 & 05-7664 (consolidated with Toledo-Flores v. United States) filed 6/19/06, argument 10/03/06. Amicus curiae brief of the NYSDA Immigrant Defense Project, American Civil Liberties Union, American Immigration Lawyers Association, Immigrant Legal Resource Center, National Association of Criminal Defense Lawyers, and the National Legal Aid and Defender Association in support of petitioners Jose Antonio Lopez and Reymundo Toledo-Flores. Amici argue that under the statutory terms of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43)(B), simple drug possession-type offenses are not “drug trafficking” offenses and therefore not “aggravated felonies” for immigration purposes triggering automatic deportation. Authors: Christopher J. Meade, Wilmer Cutler Pickering Hale and Dorr LLP, et al. 

Moore v. Maryland, No. 05-1411, brief filed 07/06/06. NACDL Amicus curiae brief in support of granting the petition for certiorari. Argument: Mistakes are made: to mount a meaningful defense in a DNA case, defendants must have an independent expert to retest the evidence, review the prosecution's test data for error, aid defense counsel in crossing the state's expert, and to testify for the defense if necessary. This is true even when the indigent defendant has retained counsel; defendants should not be forced to choose between their due process right to expert assistance and their Sixth Amendment right to counsel of their choice. Authors: William F. Sheehan, John Moustakas and Anne M. Smetak, Goodwin Proctor LLP, Washington, D.C.

Rita v. United States, U.S. Sup. Ct., No. 06-5754. See Claiborne v. United States. 

Roper v. Weaver, No. 06-313, decision below, 438 F.3d 832, cert. granted 12/7/07, argument scheduled 3/21/07. NACDL amicus brief in support of Respondent. Question presented: Since the U.S. Supreme Court has neither held a prosecutor’s penalty phase closing argument to violate due process, nor articulated, in response to a penalty phase claim, what the standard of error and prejudice would be, does a court of appeals exceed its authority under AEDPA (28 U.S.C. §2254(d)(l)) by overturning a capital sentence on the ground that the prosecutor’s penalty phase closing argument was “unfairly inflammatory?” Brief argues that case can be affirmed alternatively on Eighth Amendment grounds, and AEDPA's standard of review does not apply. Authors: Michael Small and Gia Kim, Akin Gump Strauss Hauer & Feld, LLP, Washington, DC.

Schriro v. Landrigan, U.S. Sup. Ct., No. 05-1575, filed 12/18/06. Capital punishment/Ineffective assistance of counsel during sentencing proceeding. NACDL amicus curiae brief in support of respondent. Respondent Jeffrey Landrigan told the trial court that he did not want his attorney to present any mitigation evidence. On post-conviction review, the state court held as frivolous his ineffective assistance claim in which he asserted that if his lawyer had raised the issue of his alleged genetic predisposition to violence, he would have cooperated in presenting that evidence in mitigation of death; on federal habeas review, the en banc U.S. Court of Appeals for the 9th Circuit unanimously held that the state court made an "unreasonable determination" of the facts when it found that Landrigan instructed his attorney not to present mitigation evidence at the sentencing hearing. Argument: A knowing, intelligent and voluntary waiver of the right to present mitigation evidence can only occur if the defendant has received the advice of his counsel, based on counsel’s reasonable investigation. Authors: Andrew J. Pincus, Mayer Brown, Rowe & Maw LLP, with the Yale Law School Supreme Court Advocacy Clinic., et al 

Stolt-Nielsen v. United States, U.S. Sup. Ct., No. 06-97, filed 9/20/06. Amicus curiae brief of the Washington Legal Foundation, the National Association of Manufacturers and the National Association of Criminal Defense Lawyers in support of petition for certiorari. Argument: The U.S. Court of Appeals for the Third Circuit erred in holding that under the Separation of Powers doctrine, federal courts lack the authority to enjoin federal prosecutors from breaching a binding contractual obligation “not to bring any criminal prosecution” of a company and its executions who cooperated in a federal investigation. Authors: Daniel Popeo and Richard A. Samp, Washington Legal Foundation, Washington, D.C.

United States v. Carty, 9th Cir., No. 05-10200, filed 9/25/06. Federal sentencing. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Under the current federal sentencing guidelines scheme, as reformed by United States v. Booker, the “presumption of reasonableness” on review, adopted by some other circuits and advocated by the government, has no basis in the statutory language and is contrary to the constitutional principle that underlies Booker. Adoption of a judge-made presumption that a correctly-calculated sentence imposed within the guidelines range would resurrect pre-Bookerguideline sentencing and would be contrary to the plain language of 18 U.S.C. § 3553(a). Authors: Karen Landau, Oakland, CA, and Peter Goldberger, Ardmore, PA.

United States v. Gonzales-Lopez, U.S. Sup. Ct., No. 05-352, brief filed 3/28/06. NACDL Amicus curiae brief in support of respondent. Competent trial counsel are not fungible commodities. Argument: A trial court's denial of a criminal defendant's qualified right to be represented by counsel of choice requires automatic reversal of his conviction. Author: Quin Denvir, Sacramento, CA.

United States v. Grier, 3d Cir., No. 05-1698, tendered with motion for leave 8/21/06. Federal sentencing/Burden of proof. Amicus curiae brief of the National Association of Federal Defenders and the National Association of Criminal Defense Lawyers. Argument: After United States v. Booker, all determinate facts which increase the defendant’s federal guidelines sentence must be found beyond a reasonable doubt. Authors: Peter Goldberger, Ardmore, Pa. and David L. McColgin, Philadelphia, Pa.

United States v. Kay, 5th Cir., Case No. 05-20604, appeal after remand by 359 F. 3d 738 (5th Cir. 2004) (No. 02-20588), original case below 200 F.Supp.2d 681 (S.D.Tex. Apr. 18, 2002), brief filed 10/6/06. FCPA---Proof of Knowledge of Illegality---Fair Warning---Due Process----Rule of Lenity---Prohibition Against Federal Common Law Crimes. Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellants. Argument: The Foreign Corrupt Practices Act (FCPA) requires proof of knowledge of illegality. The FCPA, as applied, denied appellants fair warning. Authors: John D. Cline and Peter E. Davids, Jones Day, San Francisco, CA; William E. Rittenberg, Rittenberg, Samuel & Phillips, LLC, New Orleans, LA.

United States v. Knellinger, U.S. Dist. Ct., E.D.Va., submitted 10/19/06, per order of the court. Discovery/child pornography. Trial court Amicus curiae memorandum submitted by NACDL arguing that the provision of the Adam Walsh Child Protection Act of 2006 restricting a criminal defendant’s access to evidence relevant to his or her defense in child pornography prosecutions (18 U.S.C. § 3509(m)) violates a criminal defendant’s Sixth Amendment confrontation, compulsory process and effective assistance of counsel rights and the Fifth Amendment’s guarantee of due process of law. Author: Joel C. Hoppe, Spotts Fain PC, Richmond, VA.

United States v. Resendiz-Ponce, U.S. Sup. Ct., No. 05-998, brief filed 8/25/06, argument 10/10/06. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: An indictment which fails to charge an essential element of a crime fails to charge a crime, and forcing a defendant to go to trial on such a defective indictment is a structural error not subject to “harmless analysis.” Authors: Jeffrey T. Green and Devon A. Corneal, Sidley Austin LLP, Washington, D.C.

United States. v. Valdes, D.C. Cir., No. 03-3066, filed July 3, 2006. NACDL Amicus brief in support of appellant on rehearing en banc. Previous decision: 437 F.3d 1276 (D.C. Cir. 2006). Argument: In a prosecution of a public official for accepting an "illegal gratuity" under 18 U.S.C. § 201, the definition of "official act" should be narrowly construed; a broad application of § 201 would over-criminalize ethics transgressions and criminalize de minimus ethical lapses, burdening the criminal justice system and possibly leading to the absurd result of criminalizing innocent gift-giving between citizens and public servants. Authors: Blair G. Brown and Barak Cohen.

Walton v. New York Dept. of Correctional Services and MCI Worldcom, NY Ct. App., filed 12/01/06. Amicus curiae brief of The Sentencing Project, NAACP Legal Defense & Education Fund, Inc., National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, The Women's Prison Association, Legal Action Center, The Fortune Society, Bronx Defenders, Center for Community Alternatives, Citizens United for Rehabilitation of Errants, Justice Policy Institute, Souther Tier Advocacy & Mitigation Project, Inc., Parolee Human Rights Project of the New York City AIDS Housing Network, Advocare, Inc., The Equal Justice Initiative of Alabama, Voice of the Ex-Offender, The Community HIV/AIDS Mobilization Project, and The Real Cost of Prisons Project, in support of plaintiff appellants. "Brandeis brief" deploring exorbitant costs of collect calls from New York state prisons as bad public policy. New York State makes over $20 million a year profit from inmate-placed collect calls to family and counsel, in effect levying an "inmate telephone tax" on poor families, public defenders and criminal defense lawyers. Authors: Keith M. Donoghue, et al., Kramer Levin Naftalis & Frankel LLP, New York, NY. Affidavit 

Washington v. Recuenco, U.S. Sup. Ct., No. 05-83, brief filed 1/18/06. NACDL Amicus curiae brief in support of respondent. Apprendi/Blakely challenge to sentencing enhancements and analysis on appeal. Argument: Harmless-error analysis can never apply to affirm a trial court’s entry of a conviction of a greater crime than that charged by the government and proven to the jury beyond a reasonable doubt, where the jury’s verdict is complete in every respect, and there has been no claim of insufficiency in the jury’s verdict? Author: Robert N. Hochman, Sidley Austin LLP, Chicago, IL.

Whorton v. Bockting, U.S. Sup. Ct., No. 05-595, filed 9/20/06. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondent. Argument: The United States Court of Appeals for the Ninth Circuit correctly held that the new rule announced in Crawford v. Washington, 541 U.S. 36 (2004), satisfies the test established by this Court in Teague v. Lane, 489 U.S. 288 (1989), that a new procedural rule applies retroactively to cases on collateral review if such rule is a watershed rule by implicating “the fundamental fairness of the trial.” Authors: Jeffrey T. Green and Marianne T. Caulfield, Sidley Austin LLP, Washington, D.C. and Sarah O’Rourke Schrup, Northwestern University, Chicago, Ill.

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