Amicus Briefs ~ 2005

Arthur Andersen, LLP v. United States, U.S. Sup. Ct., No. 04-368, Amicus Curiae. In this case, in which one of the last remaining big accounting firms was essentially driven out of business, the entire conviction hinged on edits made to one memo by one in-house lawyer--edits that any reasonable person would consider permissible and even necessary to the representation of a client. Among many other arguments, NACDL urged in its brief that the trial judge's jury instruction on obstruction of justice criminalized entirely lawful conduct.

Bell v. Thompson, U.S. Sup. Ct., No. 04-514. NACDL Amicus Curiae brief. Decision of the court of appeals to reopen a Tennessee capital defendant's federal habeas appeal on its own motion and remand to U.S. district court for evidentiary hearing, based upon newly discovered evidence that defendant was mentally ill at time of the offense, was reasonable and within the appeals court's authority. Authors: Paul R.Q. Wolfson and Noah A. Levine, Wilmer Cutler Pickering Hale & Dorr LLP.

Bradshaw v. Stumpf, U.S. Sup. Ct., No. 04-637, argument 4/19/05. NACDL Amicus Curiae brief arguing that a prosecutor's use of inconsistent theories in two capital cases involving the same murder, that is, identifying two different "shooters" in two separate trials against different defendants, denies a defendant of Due Process of law. Author: Prof. Ellen Podgor, Georgia State Univ. College of Law, Atlanta.

Davis v. Washington, U.S. Sup. Ct., No. 05-5224, filed 12/22/05. Amicus Curiae brief of the NACDL, the Washington Association of Criminal Defense Lawyers, and the Public Defender Service for the District of Columbia. Alleged victim's “excited” statements to a 911 operator naming her assailant constituted "testimonial" statements subject to the Confrontation Clause restrictions enunciated in Crawford v. Washington,541 U.S. 36 (2004); amici urge the Court to adopt a “bright line” rule requiring confrontation at trial for all accusatory statements made to 911 operators, who act as agents of the police when interviewing callers. See also Hammon v. Indiana, No. 05-5705 (“excited utterance” to responding officer). Authors: Timothy P. O'Toole, et al. 

Day v. McDonough, U.S. Sup. Ct., No. 04-1324, filed 11/30/05. NACDL’s Amicus Curiae brief in support of petitioner. Argument: The Federal Rules of Civil Procedure’s waiver rules apply to the habeas corpus provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rule 4 of the Federal Rules Governing Section 2254 Cases does not give the U.S. District Court the power to dismiss a habeas petition on its own motion on grounds of untimeliness after it has ordered a response from the state and the state has conceded timeliness.

Deck v. Missouri, U.S. Sup. Ct., No. 04-5293, Amicus Curiae brief of the Bar Human Rights Committee of the Bar of England and Wales and the National Association of Criminal Defense Lawyers. Argument: Forcing a defendant to proceed through the penalty phase of his capital murder trial while shackled and handcuffed to a belly chain in full view of the jury violates the Fifth, Sixth, Eighth Amendments; common law, international law and convention require that all defendants be treated with a dignity that is commensurate with the presumption of innocence during trial and axiomatically during their penalty trials before the jury in a capital case; since a number of states count “future dangerousness” as an aggravating factor in capital cases, chaining up a defendant during his penalty trial effectively compels him to be a witness against himself in violation of the Fifth Amendment’s self-incrimination and due process clauses and denies him the opportunity to confront himself as a witness against himself in violation of the Sixth Amendment’s confrontation clause.

Evans v. Chavis, No. 04-721. Habeas corpus/AEDPA. Whether state supreme court’s denial of post-conviction relief was decision “on the merits” for federal post-conviction purposes where state court denied relief without comment. Authors: Jeffrey L. Fisher, Russell D. Covey.

Georgia v. Randolph, No. 04-1067. Search and Seizure. Whether the police may search a home based on putative consent of one occupant over express objection of a second occupant. Authors: Jeffrey A. Lamken, Heather S. Allen, Kevin T. Jacobs, Baker Botts, Washington, DC.

Gonzalez v. Crosby, U.S. Sup. Ct., No. 04-6432. NACDL Amicus Curiae brief. Whether the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA)'s habeas restrictions on second or successive petitions preclude the use of Federal Rule of Civil Procedure 60(b) to reopen a final judgment. Successive habeas petitions and Rule 60(b) motions are distinct applications to the court, which serve different purposes, raise different issues, seek different relief, and thus do not overlap. Authors: Prof. M Aya Gruber, et al., Florida International University College of Law.

Halbert v. Michigan, U.S. Sup. Ct., No. 03-10198. Indigent defense: Amicus curiae brief of NACDL and the National Association of Federal Defenders arguing that Michigan's law denying appointment of counsel on appeal to indigent defendants who plead guilty is unfair and unconstitutional. Authors: Anthony J. Franz, et al.

Hamdan v. Rumsfeld (Hamdan I), D.C. Cir., No. 04-5393. NACDL Amicus Curiae brief in support of petitioner-appellee Salim Ahmed Hamdan. Military commissions created by Respondents are incompatible with the express or implied will of Congress. Constitutionally, there is no “inherent” Presidential authority to create these military commissions and challenge to their jurisdiction via habeas corpus has long been recognized in our military law.

Hammon v. Indiana, U.S. Sup. Ct., No. 05-5705, filed 12/23/05. Amicus Curiae brief of the NACDL and the Public Defender Service for the District of Columbia. Alleged domestic disturbance victim’s oral accusation made to an investigating officer at the scene of an alleged crime was a testimonial statement within the meaning of Crawford v. Washington,541 U.S. 36 (2004) where accuser did not testify at trial and was not subject to cross-examination; amici urge the Court to adopt a “bright line” rule that “testimonial” statements made to police and government agents require confrontation at trial. See also Davis v. Washington, No. 05-5224 (statements made during 911 call erroneously admitted at trial under “excited utterance” hearsay exception). Authors: Timothy P. O'Toole, et al. 

Holmes v. South Carolina, No. 04-1327, brief filed 11/30/05. NACDL Amicus curiae brief in support of petitioner. Argument: South Carolina's rule governing the admissibility of third-party guilt evidence violates a criminal defendant's constitutional right to present a complete defense grounded in the Due Process, Confrontation, and Compulsory Process Clauses. Authors: Richard E. Young and Paul A. Kemnitzer, Sidley Austin Brown & Wood LLP.

Maryland v. Blake, U.S. Sup. Ct., No. 04-373. Self-Incrimination. Whether officer’s threat constituted reinitiation of interrogation after defendant has unequivocally asserted right to have attorney present during questioning, in violation of Edwards v. Arizona. Author: James J. Tomkovicz, Univ. of Iowa College of Law.

Medellin v. Dretke, Amici Curiae brief, USSupCt, No. 04-5928. Death penalty; denial of alien's rights under Vienna Convention

Moussaoui v. United States, U.S. Sup. Ct., No. 04-8385, NACDL Amicus Curiae brief in support of petitioner. Government's refusal to produce defense witnesses it US custody in capital case violates defendant's Sixth Amendment right to compulsory process. Author: Donald G. Rehkopf.

Padilla v. Hanft, U.S. Sup. Ct., No. 05-533, filed 12/18/05. NACDL Amicus Curiae brief in support of Jose Padilla’s petition for a writ of certiorari. Author and Military Law Committee Co-Chair Donald Rehkopf argues that despite Padilla’s indictment in a federal court in Florida, his military detention claims are not moot and that certiorari should be granted in order to resolve the continuing constitutional issues, i.e., whether the president may lawfully detain a civilian U.S. citizen indefinitely in military custody and whether the term “enemy combatant” has legal significance. Author: Donald Rehkopf, Brenna & Brenna PLLC, Rochester, NY.

Padilla v. Hanft, 4th Cir., No. 05-6396. NACDL Amicus Curiae brief in support of Jose Padilla's appeal to the U.S. Court of Appeals for the Fourth Circuit on denial of his petition for a writ of habeas corpus. From the founding of our Country, military control over the civilian populace has been an anathema to our Constitutional system. The composite structure of the Constitution, to include the Bill of Rights, supports the basic concept of “civilian supremacy.” Absent a declared war or martial law, the military order of the President confining Jose Padilla -- a civilian U.S. citizen -- indefinitely in a military brig violates this basic principle.... Author: Donald Rehkopf, Brenna & Brenna PLLC, Rochester, NY.

Sanchez-Llamas v. Oregon, U.S. Sup. Ct., No. 04-10566, filed 12/20/05. Amicus Curiae brief of the National Association of Criminal Defense Lawyers and the Law Council of Australia in support of petitioner. Argument: Suppression of incriminating statements is an appropriate remedy for the state’s violation of Article 36 of the Vienna Convention on Consular Relations. Notifying a foreign national of his right to seek consular assistance enables him to participate in the criminal process. Foreign defendants can participate in their own defense only when they are fully informed of their rights, are provided with competent interpreters, and are able to communicate effectively with attorneys and court personnel. Suppression of incriminating statements made in violation of Article 36 will simultaneously increase compliance with the treaty’s consular notification and access provisions and deter law enforcement from ignoring its obligations under the treaty. Authors: Prof. Thomas H. Speedy Rice, et al. 

Sanchez-Villalobos v. United States, U.S. Sup. Ct., No. 05-484, on certiorari to the U.S. Court of Appeals for the Fifth Circuit, filed 10/14/2005. Amicus curiae brief of the Immigrant Defense Project of the New York State Defenders Association, the National Association of Criminal Defense Lawyers, and the Immigrant Legal Resource Center arguing the U.S. Supreme Court should review the question of whether a state drug misdemeanor conviction is properly characterized as an “aggravated felony” by the Department of Homeland Security. Question(s) Presented: (1) Does state-law offense that would not be punishable as felony under federal law constitute "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B)? (2) May recidivist enhancements be considered in determining whether offense would be punishable as federal felony and therefore constitute "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B)? (3) Should available punishment, separate from classification of offense under state law, determine whether offense constitutes state felony and therefore "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B)? Author: Nancy Morawetz, Washington Square Legal Services, Inc., New York, NY

United States v. Brown, 5th Cir., No. 05-20319. NACDL Amicus Curiae brief arguing that the appellants were prosecuted under novel theories that expanded the wire fraud statute, i.e., that the appellants engaged in a scheme to deprive Enron of a “property right” to receive a full and fair report of the corporation’s “full and accurate economic information” and deprived the company of an intangible right of honest services of its employees. Brief argues that the wire fraud statute (18 U.S.C. §1343) neither creates nor protects a “property right” to “accurate financial information”; that the phrase “scheme to defraud” as used in the statute is limited to schemes in which the defendant obtains money or property; and last, that the jury instructions erroneously extended liability for deprivation of honest services to defendants who worked openly with company employees to the company’s and shareholders’ benefit. Author: James E. Boren, Baton Rouge, La.

United States v. Frank Quattrone, 2nd Cir., No. 04-5007-cr. Amici Curiae brief by National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice (filed 2/7/05). Author: Joshua Dratel, President, NYSACDL.

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