Arizona v. Hon. Jane A. Butler and Tyler B., Supreme Court of Arizona, No. CV-12-0402-PR, case below 231 Ariz. 42, 290 P.3d 435 (Ariz.App. Div. 2 Oct. 31, 2012) (No. 2 CA-SA 2012-0065) , brief filed 3/15/13. Juvenile---Fourth Amendment---Blood Draw---Consent---School. Amici curiae brief of the Juvenile Law Center, the National Association of Criminal Defense Lawyers, et al. (totaling 41 groups and individuals set forth in Appendix A to the brief) in support of real party in interest Tyler B. Argument: Age and other circumstances particular to youth are crucial factors in assessing the voluntariness of a consent to a search under the Fourth Amendment. Where the search is conducted in the school setting, age is even more relevant to the voluntariness determination. Authors: Lourdes M Rosado, Juvenile Law Center, Philadelphia, PA; Jeanne Shirly, Tuscon, AZ.
Behanna v. United States, U.S. Sup. Ct., No. 12-802, decision below 71 M.J. 228 (U.S. Armed Forces Jul 05, 2012), brief filed 2/27/13. Collateral Review---Direct Appeal—Military Conviction---Court of Appeals for the Armed Forces (CAAF)---Military Justice Act---Burns---Self-Defense in Combat Zone. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner's petition for writ of certiorari. Argument: The Supreme Court should grant the petition for writ of certiorari. Congress and this Court have increasingly preferred collateral review, rather than direct appeals, for supervising civilian criminal convictions. Post-conviction review of military convictions has followed the opposite pattern. In the military context, collateral review of criminal convictions is severely limited to whether the military court gave "full and fair consideration" to defendant's constitutional claims. And unlike civilian criminal convictions, Congress has explicitly indicated its desire for the Court to exercise a more aggressive supervisory role over military convictions. This case is appropriate candidate for such supervision. Authors: Lindsay C. Harrison, Jenner & Block LLP, Washington, DC; Stephen Vladeck, Washington, DC; Jeffrey T. Green, Washington, DC.
Commonwealth v. Moody, No. SJC-11277 (Supreme Judicial Court of the Commonwealth of Mass.), brief filed 3/18/13, on appeal from the judgment of the Berkshire Superior Court. “Wire Communications”---Interception of Cellular Calls---Interception of Text Messages---Wiretap Warrants---Massachusetts Wiretap Act---Privacy Act of 1986. Amicus curiae brief of Jorge Areiza, Hector Dejesus Puerta, Alejandra Gomez, Darney Gomez-Mesa, the Massachusetts Association of Criminal Defense Lawyers, and the National Association of Criminal Defense Lawyers. Question Presented: Whether G.L. Ch. 272 § 99 authorizes a Superior Court judge to issue a warrant permitting state law enforcement to intercept cellular calls and/or text messages. Argument: Cellular phone communications and text messages are not ‘wire communications’ under G.L. c. 272, § 99. Even if the language of the Massachusetts Wiretap Act covers cellular phone communications, Massachusetts state courts have no authority to issue wiretap warrants for such communications because the legislature did not update the statute as mandated by Congress. Authors: Veronica J. White and Benjamin Leatherman of White & Associates, P.C. in Boston, MA; Peter Ettenberg of Gould & Ettenberg, P.C. in Worcester, MA; Frank Camera of the Law Office of Frank Camera in Fall River, MA; Peter Clifford of the Law Office of Peter Clifford in Worcester, MA; Max Stern on behalf of the Massachusetts Association of Criminal Defense Lawyers; and Michael J. Iacopino on behalf of the National Association of Criminal Defense Lawyers.
Gathers and Mitchell v. United States, D.C. Court of Appeals, Nos. 09-CO-422, 11-CO-1676 & 12-CO-1411; Nos. 11-CO-1677 & 12-CO-1412, appeal from the Superior Court of the District of Columbia, Criminal Division (Criminal Nos. 1993 FEL 10270 & 1993 FEL 11175), brief filed 4/30/13. False Testimony—Prosecutor’s Obligations---Due Process—Waiver. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in support of appellants and urging reversal. Questions Presented: May the Due Process Clause’s prohibition on the government’s use of false testimony to procure a conviction be waived by a defendant? Even if the Due Process Clause’s protection in this regard may be waived, did the trial court apply the wrong standard to determine that defense counsel knowingly waived that protection? Argument: The obligations to not use false testimony and to correct any such false testimony belongs to the prosecutor and cannot be waived. Even if the Due Process protection against false testimony may be waived, the indispensable function it serves requires that the waiver standard be substantially more demanding than the standard the trial court utilized below. The Superior Court misapplied this court’s holding in Bruce. Trial counsel did not know that Det. Had testified falsely. There was no tactical decision to permit the false testimony to go unchallenged. Authors: Paul F. Enzinna and James P. Bair of Brown Rudnick LLP in Washington, DC.
Hummel v. U.S., U.S. Dist. Ct., M.D. Fla., No. 8:12-MJ-1457 TGW, brief filed 1/11/13. Due Process---Controlled Substances Act---Controlled Substance Analogues---Void for Vagueness---Fair Warning---Prosecutorial Discretion---Seizure of Funds. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of movant. Argument: As applied to the substances at issue in this case – UR-144 and XLR-11 – 21 U.S.C. §813 and its accompanying definitional statute 21 U.S.C. §802(32)(A)(i) are unconstitutionally vague, and void for that reason. Authors: David Oscar Markus, Markus & Markus PLLC in Miami, FL; John D. Cline, Law Office of John D. Cline in San Francisco, CA.
Maryland v. King,
U.S. Sup. Ct., No. 12-207, decision below 425 Md. 550, 42 A.3d 549 (Md. Apr. 24, 2012), brief filed 2/1/13. DNA Sample---Arrestee—Fourth Amendment---Searches---Balance of Interests. Amicus curiae brief of the National Association of Criminal Defense Lawyers supporting Respondent. Question presented: Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes? Argument: A state’s search for DNA samples from an arrestee’s body without a warrant or any basis for suspecting the DNA is connected to a crime is unreasonable, regardless of the balance of interests. Physically intrusive searches like the collection of DNA from inside an arrestee’s body require a warrant and probable cause. The balance of interests alone does no determine reasonableness even for less intrusive bodily searches. The state’s collection of DNA from arrestees falls outside the limited circumstances permitting warrantless, suspicionless searches. Accordingly, the judgment of the Maryland Court of Appeals
should be affirmed. Authors: Lisa Blatt, Anthony J. Franze and Sarah M. Harris, Arnold & Porter LLP, Washington, DC; Jonathan Hacker, Washington, DC.
Metrish v. Lancaster, U.S. Sup. Ct., No. 12-547, decision below 683 F. 3d 740 (6th Cir. 2012), brief filed 4/10/13. Due Process—Retroactivity---Reliance on Present State of Substantive Law---Mens Rea Defenses---Habeas. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Questions presented: (i) Whether the Michigan Supreme Court's recognition that a state statute abolished the long-maligned diminished-capacity defense was an "unexpected and indefensible" change in a common-law doctrine of criminal law under this Court's retroactivity jurisprudence. See Rogers v. Tennessee, 532 U.S. 451 (2001), and (ii) Whether the Michigan Court of Appeals' retroactive application of the Michigan Supreme Court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" so as to justify habeas relief. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). Argument: Prosecutors and defendants must be able to rely on the present state of substantive law in their decision-making processes. Authors: Jeffrey T. Green, Christopher A. Bates, of Sidley Austin LLP, Washington, DC; Sarah O'Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL; and David Porter, Sacramento, CA.
Obama v. Faidel Hussein Saleh Hentif, D.C. Cir., No. 12-5314, brief filed 4/30/13. Notice of Appeal---Timeliness---Guantanamo—Detention—Habeas. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of appellant. Argument: Because Federal Rule of Appellate Procedure 4(a)(7) is not jurisdictional, it must be construed in favor of preserving a party’s right to appeal. Parties must have clear notice of the event that starts the clock running for filing a notice of appeal. Construing Federal Rule of Appellate Procedure 4(a)(7) as starting the time running for the filing of a notice of appeal before the decision appealed from is available to the appellant thwarts appellant’s ability to consult with his counsel and to make an informed decision whether to take an appeal. Authors: Laura G. Ferguson, Timothy O’Toole and Mia P. Haessly, Miller & Chevalier Chartered, Washington, DC.
Ohio v. Long, Case No. 2012-1410, Supreme Court of Ohio, case below 2012 WL 2550960 (Ohio App. 1 Dist. Jul. 3, 2012) (No. C-110160), brief filed 3/11/2013. Eighth Amendment—Juveniles—Miller—Sentencing---Life Without Parole (LWOP). Brief of amicus curiae National Association of Criminal Defense Lawyers in support of defendant-appellant. Argument: The Eighth Amendment to the U.S. Constitution requires that this case be remanded for individualized consideration of the ‘distinctive attributes of youth.’ The Supreme Court has held that children are constitutionally different from adults and cannot be sentenced to life without parole unless age is taken into account. The principles of Miller apply equally whether the LWOP sentence is mandated or imposed as a matter of discretion. Miller and the Supreme Court’s individualized sentencing cases require that the trial court actually consider and address the defendant’s youth. The record does not demonstrate that Eric Long’s age and attendant circumstances were considered in making the decision to sentence him to life without parole. This Court should, pursuant to Article I, Section 9 of the Ohio Constitution, declare a life without parole sentence unconstitutional for any juvenile offender. Authors: Candace Crouse, Pinales Stachler Young Burrell & Crouse Co. , LPA in Cincinnati, OH, on behalf of NACDL; Gia L. Cincone, Kilpatrick Townsend & Stockton LLP in San Francisco, CA, on behalf of NACDL.
Salinas v. Texas, U.S. Sup. Ct., No. 12-246, decision below 369 S.W.3d 176 (Tex. Crim. App. 2012), brief filed 2/27/13. Fifth Amendment—Self-Incrimination Clause—Silence---Arrest—Miranda. Amicus curiae brief of the National Association of Criminal Defense Lawyers and Texas Criminal Defense Lawyers Association in support of Petitioner. Question presented: Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights. Argument: The Fifth Amendment applies prior to arrest. Using silence as evidence of guilt compels a suspect to incriminate himself. The right to remain silent protects the innocent. Use of pre-arrest silence allows for police abuse and skews the balance between the individual and the state. Authors: Craig D. Singer and Jared L. Hubbard, Williams & Connolly LLP, Washington, DC; Jeffrey T. Green, Sidley Austin LLP, Washington, DC; and Angela Moore, Rogers & Moore, PLLC, Boerne, Texas.
Sekhar v. United States, U.S. Sup. Ct., No. 12-357, decision below 683 F.3d 436 (2d Cir. 2012), brief filed 3/4/13. Hobbs Act—Statutory Interpretation---Rule of Lenity---Federalism. Amicus curiae brief of the National Association of Criminal Defense Lawyers and The Cato Institute in support of petitioner and urging reversal. Question presented: Whether the “recommendation” of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. § 1951(a) (the Hobbs Act) and 18 U.S.C. § 875(d). Argument: This Court has repeatedly applied the rule of lenity and other tools of statutory interpretation to limit prosecutors’ expansive applications of federal criminal statutes. This Court has required a clear statement from Congress before it will interpret a federal criminal statute to shift the federal-state balance in law enforcement. This case implicates the concerns that have caused this Court to interpret criminal statutes narrowly. Authors: John D. Cline and Jennifer M. French, Law Office of John D. Cline, San Francisco, CA; David M. Porter, Sacramento, CA; Timothy Lynch and Ilya Shapiro, The Cato Institute, Washington, DC.
United States v. Davila, U.S. Sup. Ct., No. 12-167, decision below 664 F.3d 1355 (11th Cir. 2011), brief filed 3/22/13. Plea Bargaining—F.R.Cr.P. 11(C)—Judicial Participation. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Question presented: Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant's guilty plea, irrespective of whether the error prejudiced the defendant. Argument: Judicial participation in plea negotiations disrupts and undermines the plea bargain process. Treating Rule 11(C) violations as inherently prejudicial does not disrupt the federal criminal justice system. Judicial participation should be treated as inherently prejudicial. Authors: John B. Owens, Daniel B. Levin, Michael J. Mongan, John P. Mittelbach of Munger, Tolles & Olson LLP, Los Angeles, CA; Jonathan Hacker, Washington, DC.
United States v. Joseph Jones, Desmond Thurston & Antwuan Ball, D.C. Cir., No. 08-3033 (consolidated with Nos. 10-3108 & 11-3031), brief filed 1/16/13. Sentencing—Watts—Use of Acquitted Conduct. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders and the American Civil Liberties Union of the Nation’s Capital in support of appellants, urging reversal. Argument: The holding in Watts does not govern the Sixth Amendment issues presented here. A defendant’s sentencing guideline calculation should be based solely on the crime of conviction. Authors: Jeffrey T. Green, Sidley Austin LLP, Washington, DC; Timothy O’Toole, Miller & Chevalier, Washington, DC; Sarah S. Gannett, Philadelphia, PA for the National Association of Federal Defenders; and Arthur B. Spitzer, ACLU of the Nation’s Capital, Washington, DC.
United States v. King, 9th Cir., No. 11-10182, case below 2011 WL 9315 (N.D. Cal. Jan. 3, 2011) (No. C 10-00455 WHA), affirmed by 711 F.3d 986 (9th Cir. (Cal.) Mar. 8, 2013) ( No. 11-10182), brief filed 5/2/13. Probation Conditions---Home Searches---Reasonable Suspicion---Consent. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant-appellant’s petition for rehearing en banc and reversal of the district court’s judgment. Argument: The Panel’s exclusive focus on “consent” and its assumptions about the imposition of probation conditions are wrong. Consent is merely a factor to consider when deciding whether a search is “reasonable.” Probationers do not necessarily “accept” probation terms. The reasonable suspicion standard should apply to all searches of a probationer’s home. Authors: Hanni Fakhoury, San Francisco, CA, and David Porter, Sacramento, CA.